PROPERTY AND DISAGREEMENT

 

 

Stephen R. Munzer

 

UCLA School of Law

 

 

Disagreements over the nature of property show no sign of abating.  I argue that recent philosophical work on verbal disagreement and on the nature of concepts helps us to clarify, dissolve or resolve some disagreements over property.

 

I do not try to classify the various kinds of verbal disagreement but concentrate on just one kind: that which Chalmers (2011) calls both “broad” and “partial.”  If a disagreement is only partly verbal, it is also partly substantive.  My analysis concentrates on an example of such a disagreement between James Penner and me over whether property has an essential feature, viz. the right to exclude.  He says it does; I disagree.  I argue that our dispute is far from trivial, and that on both analytical and metaphysical grounds my view is the better of the two.

 

Some disagreements over property turn on the nature of concepts, their individuation, and the possibility of using some concepts without fully understanding them.  A disagreement between Jim Harris and A.M. Honoré on the one side and me on the other has to do with some conceptual problems about the nature of relations.  I contend that once the logic of relations is correctly understood, the disagreement between us is, though not trivial, of modest significance.  Of greater philosophical interest is a disagreement between Penner and me, partly because it shows that some disagreements have both verbal and conceptual dimensions, and partly because the account of concepts that he employs does not do the philosophical work he needs it to do.  I suggest, firstly, that he and I seem to use different concepts of property, and, secondly, that if there is a unique concept of property, possibly neither of us has fully mastered it.

 

The chief recommendations of my paper are:

·         Clarify and, if possible, settle by careful argument disagreements that are both substantive and broadly but only partly verbal.

·         If a disagreement is at once major, partly substantive, and partly conceptual, determine whether the parties are using the same concept of property.

·         If the parties are using a single concept of property, determine whether one or more parties fail to understand that concept completely.

·         Achieve, whenever possible, mastery of a concept so that disagreements which pivot on incomplete understanding of the concept of property can be eliminated.

·         Consider whether it is both possible and useful to make a concept of property more determinate.  One has got to ask what the practical point of greater determinacy would be and the costs of achieving it.