DOCSLIB.ORG

The Right to Privacy? Andrew Koppelman

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Right to Privacy? Andrew Koppelman View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Chicago Law School: Chicago Unbound University of Chicago Legal Forum Volume 2002 Article 6 2002 The Right to Privacy? Andrew Koppelman Follow this and additional works at: http://chicagounbound.uchicago.edu/uclf Recommended Citation Koppelman, Andrew (2002) "The Right to Privacy?," University of Chicago Legal Forum: Vol. 2002, Article 6. Available at: http://chicagounbound.uchicago.edu/uclf/vol2002/iss1/6 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. The Right to Privacy? Andrew Koppelman Laws that discriminate against gay people discriminate on the basis of sex. If Lucy may marry Fred, but Ricky may not marry Fred, then (assuming that Fred would be a desirable spouse for either) Ricky is suffering legal disadvantage because of his sex. Moreover, such laws depend on and reinforce the subor- dination of women. I have argued for years that this is the princi- pal constitutional defect with such laws.1 I have not, however, said very much about the comparative part of this claim, and in- stead have emphasized the strengths of the sex discrimination argument. The conventional wisdom, on the other hand, is that the appropriate starting point for any discussion of the legal rights of gay people is the idea that certain private matters are none of the law's business.! Certainly this has been, for a long time, the most commonly made argument for the legal equality of gay people. This argument must contend with the contrary precedent of Bow- Associate Professor of Law and Political Science, Northwestern University. This article is an abridged version of Chapter Two of The Gay Rights Question in Contemporary American Law (Chicago 2002), with new material added in response to Richard Epstein's critique. It appears here with the permission of the University of Chicago Press. Many thanks to Richard Epstein, my favorite sparring partner. ' See Andrew Koppelman, Defending the Sex DiscriminationArgument for Lesbian and Gay Rights: A Reply to Edward Stein, 49 UCLA L Rev 519 (2001); Andrew Koppel- man, The Miscegenation Analogy in Europe, or Lisa Grant Meets Adolf Hitler, in Robert Wintemute and Mads Andenaes, eds, Legal Recognition of Same-Sex Partnerships:A Study of National, European and International Law (Hart 2001); Andrew Koppelman, Why Gay Legal History Matters, 113 Harv L Rev 2035 (2000); Andrew Koppelman, Three Arguments for Gay Rights, 95 Mich L Rev 1636, 1661-66 (1997); Andrew Koppelman, Antidiscrimination Law and Social Equality 146-76 (Yale 1996); Andrew Koppelman, Why DiscriminationAgainst Lesbians and Gay Men Is Sex Discrimination,69 NYU L Rev 197 (1994); Andrew Koppelman, Note, The Miscegenation Analogy: Sodomy Law as Sex Discrimination,98 Yale L J 145 (1988). 2 This way of putting it dates back to the 1957 report of the Wolfenden Committee, which reconsidered the law of sexual crimes in England. The committee concluded that private consensual homosexual acts should be decriminalized, because "[t]here must re- main a realm of private morality and immorality which is, in brief and crude terms, not the law's business." Quoted in H.L.A. Hart, Law, Liberty, and Morality 14-15 (Stanford 1963). 105 106 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2002: ers v Hardwick,3 which held that the constitutional right of pri- vacy does not protect consensual homosexual sex committed within a person's home.' This is not an insuperable obstacle, how- ever, because the overwhelming majority of commentators think that Hardwick was wrongly decided.! Privacy, however, is a weak constitutional basis for gay rights claims. Gays' privacy claims cannot be deduced from earlier pri- vacy decisions. The privacy doctrine inappropriately requires judges to decide what is important in life. It excessively disables the state from legislating on the basis of morality. Moreover, pri- vacy is a poor characterization of what is at stake in the gay rights debate, which turns primarily on achieving parity of public status rather than private conduct. The argument has great rhe- torical power, of course, and has produced notable successes in litigation.! It would be foolish for advocates not to deploy it. But its weaknesses suggest that even they should not place too many of their eggs in this basket. And courts can always consider better arguments. Judge Robert Bork is the most prominent and persistent critic of the right to privacy. I will not here consider his best- known criticism, which is that the right does not exist because it has no basis in the Constitution.7 Far more devastating is his claim that the right is indeterminate, so that there is no way to know what liberties are or are not protected. As a Court of Ap- peals judge, Bork observed that the privacy cases "contain little guidance for lower courts."' For example, Bork maintained that Griswold v Connecticut,' which held that married couples had a right to use contraceptives, "did not indicate what other activities might be protected by the new right of privacy and did not pro- 478 US 186 (1986). Id at 189. For two somewhat overlapping lists of such commentators, see David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade 902 n 97 (MacMillan 1994), and Earl M. Maltz, The Court, the Academy, and the Constitution:A Comment on Bowers v. Hardwick and Its Critics, 1989 BYU L Rev 59, 60 n 4. 6 See Powell v State, 510 SE 2d 18 (Ga 1998); Gryczan v State, 942 P2d 112 (Mont 1997); Campbell v Sundquist, 926 SW 2d 250 (Tenn App 1996); Commonwealth v Wasson, 842 SW 2d 487 (Ky 1992); Post v State, 715 P2d 1105 (Okla Crim App 1986); People v Onofre, 415 NE 2d 936 (NY 1980); Commonwealth v Bonadio, 415 A2d 47 (Pa 1980); State v Pilcher, 242 NW 2d 348 (Iowa 1976); National Coalition for Gay and Lesbian Equality v Minister of Justice, 1998 (12) BCLR 1517 (South Africa Constitutional Court). See Robert Bork, The Tempting of America 95-100 (Free 1990). " Dronenburg v Zech, 741 F2d 1388, 1392 (D C Cir 1984) (Bork) (upholding Navy's policy of mandatory discharge for homosexual conduct). 9 381 US 479 (1965). 1051 THE RIGHT TO PRIVACY? vide any guidance for reasoning about future claims laid under that right."'° The same critique applies to explicit privacy protec- tions in state constitutions: What do they mean? Some constitutional interpreters have argued that the solu- tion to this indeterminacy problem is to define privacy rights as broadly as possible." Bork has, however, correctly observed that one cannot, as a practical matter, abstract all the way to a gen- eral right to2 freedom, since some legal constraints on freedom must exist.1 John Stuart Mill provided an obvious candidate for a limiting principle with his dictum that the only purpose for which power can be rightfully exer- cised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." 10 Id. " See, for example, Bruce Ackerman, Liberating Abstraction, 59 U Chi L Rev 317 (1992). 12 Robert Bork, The Tempting of America 99-100. (cited in note 7). Laurence Tribe and Michael Dorf concede that the choice of the level of abstraction at which to read the Constitution's liberty clauses is "a choice that neither the Constitution's text nor its struc- ture nor its history can make for us." Laurence H. Tribe and Michael C. Dorf, On Reading the Constitution 116 (Harvard 1991). But then, none of these sources prevent the Court from reaching the result that it does in Hardwick. At one point, Tribe and Dorf's treat- ment of the privacy issue attempts to cut through this knot by entertaining the possibility of maximal abstraction: [Niothing in the Constitution's text remotely forecloses the argument that unconventional sexual behavior is a fundamental right. If we are to take seriously the Ninth Amendment's requirement that "[t]he enumeration in the Constitution, of certain rights, shall not be con- strued to deny or disparage others retained by the people," at a minimum we must consider the possibility that rights which are consistent with the enumerated rights-as a right to choose unconventional sexual behavior is, and as a 'right" to engage in theft surely is not-may be required by the Constitution. Id at 110. This argument would appear to leave little for a legislature to do, since once it had prohibited conduct violative of constitutional rights such as the right to property, it would not be permitted to prohibit any other conduct. The set of constitutionally protected activities would be pretty large; examples that come to mind include the right to grow wheat on your farm without federal interference, the right to discharge pollutants into the atmosphere, and the right to fornicate and defecate in public. None of these rights seems inconsistent with any of the enumerated rights. 13 John Stuart Mill, On Liberty 68 (Penguin 1974) (Gertrude Himmelfarb, ed). THE UNIVERSITY OF CHICAGO LEGAL FORUM [2002: Mill's principle has been cited by some state courts when inter- preting their constitutions to vindicate claims like Hardwick's." Mill's essay is a great work of political theory, and it has always been appealing to those friendly to gay rights, but his line would secure liberty for gays at far too high a price.
Load more

Recommended publications
  • CREATING an AMERICAN PROPERTY LAW: ALIENABILITY and ITS LIMITS in AMERICAN HISTORY Claire Priest
    CREATING AN AMERICAN PROPERTY LAW: ALIENABILITY AND ITS LIMITS IN AMERICAN HISTORY Claire Priest Contact Information: Northwestern University School of Law 357 East Chicago Ave. Chicago, IL 60611 Phone: (312) 503-4470 Email: [email protected] Acknowledgements: ∗Associate Professor of Law, Northwestern University School of Law. B.A., J.D., Ph.D. Yale University. I would like to thank James McMasters of Northwestern’s Law Library for his help in finding copies of many of the primary sources used to write this Article. For extremely valuable comments and suggestions, I would like to thank Bernard Bailyn, Stuart Banner, Kenworthey Bilz, Charlotte Crane, David Dana, Michele Landis Dauber, Christine Desan, Tony A. Freyer, Morton J. Horwitz, Daniel Hulsebosch, Stanley N. Katz, Daniel M. Klerman, Naomi Lamoreaux, Charles W. McCurdy, Edmund S. Morgan, Janice Nadler, Sarah Pearsall, Dylan Penningroth, George L. Priest, Richard J. Ross, Emma Rothschild, Dhananjai Shivakumar, Kenneth L. Sokoloff, Vicky Saker Woeste, Gavin Wright and the seminar participants at Northwestern University School of Law’s Faculty Workshop, Stanford Law School’s Faculty Workshop, UCLA’s Legal History Colloquium and Economic History Workshop, NYU’s Legal History Colloquium, the University of Florida Fredric G. Levin College of Law’s Faculty Workshop, the Chicago Legal History Seminar, the American Society for Legal History’s Annual Meeting, the University of Illinois College of Law’s Faculty Workshop, the Omohundro Institute of Early American History’s Annual Conference, and Harvard University’s Conference on Atlantic Legalities. The Julius Rosenthal Fund at Northwestern University School of Law provided generous research support. CREATING AN AMERICAN PROPERTY LAW: ALIENABILITY AND ITS LIMITS IN AMERICAN HISTORY This Article analyzes an issue central to the economic and political development of the early United States: laws protecting real property from the claims of creditors.
    [Show full text]
  • Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts*
    The Journal of Political Philosophy: Volume 10, Number 1, 2002, pp. 20±53 Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts* CAROLE PATEMAN Political Science, University of California at Los Angeles Democracy is at war with the renting of human beings, not with private property. David Ellerman URING the 1990s a number of political philosophers turned their attention Dto the concept of self-ownership. Much of the discussion is critical of libertarianism,1 a political theory that goes hand-in-hand with neo-liberal economic doctrines and global policies of structural adjustment and privatization. Attracta Ingram's A Political Theory of Rights and G. A. Cohen's Self-Ownership, Freedom, and Equality are devoted to such criticism Uand I shall focus much of my argument on their books2). The consensus among most participants in the debate is that self-ownership is merely a way of talking about autonomy, but Ingram and Cohen go against the tide by arguing that the idea is inimical to autonomy and that an alternative is needed. In The Sexual Contract I am also critical of libertarianism, and my conclusion is similar to Ingram's and Cohen's. I argue that the idea of property in the person must be relinquished if a more free and democratic social and political order is to be created. However, despite some common concerns, there are very few points at which my work and that of Cohen and Ingram, or of most contributors to the current debates about self-ownership, come together. In large part this is because property in the person, not self-ownership, is central to my analysis.
    [Show full text]
  • Journal of Agribusiness and Rural Development
    Journal of Agribusiness pISSN 1899-5241 eISSN 1899-5772 and Rural Development www.jard.edu.pl 4(34) 2014, 159-171 PERPETUAL USUFRUCT OF AGRICULTURAL LANDS – SELECTED LEGAL AND FINANCIAL ISSUES Aneta Suchoń Adam Mickiewicz University in Poznań Abstract. The article makes an attempt to determine whether the legal regulations provide a perpetual lessee with, first of all, stable conditions to hold agricultural lands and to run a business activity on these lands and, second of all, whether the regulations make it easi- er for perpetual lessees to acquire the right to own the lands they possess. The first part of the article concentrates on the legal nature of perpetual usufruct as well as the rights and financial obligations of a perpetual lessee. Then, the paper focuses on the transformation of perpetual usufruct into the right of ownership and the expiry of perpetual usufruct. Next, the article analyses the issue of a perpetual lessee as an agricultural producer. At the end, the Author states that perpetual lessee possesses a wide range of rights and can freely run an agricultural activity on agricultural lands. The legislator has acknowledged perpet- ual usufruct, along with the most popular forms of holding lands such as ownership and lease, to be a stable element of rural relations. Thus, a perpetual lessee can be granted the European funds, agricultural tax reliefs and insurance in KRUS. Key words: perpetual usufruct, agricultural lands, agricultural activity, EU funds INTRODUCTION For each agricultural producer it is essential to possess lands in an autonomous and stable way in order to ensure uninterrupted course of an agricultural activity.
    [Show full text]
  • American Law Institute Cle Eminent Domain and Land Valuation Litigation Keynote Address: “Property Rights: Foundation for a Free Society”
    AMERICAN LAW INSTITUTE CLE EMINENT DOMAIN AND LAND VALUATION LITIGATION KEYNOTE ADDRESS: “PROPERTY RIGHTS: FOUNDATION FOR A FREE SOCIETY” PALM SPRINGS, CALIFORNIA JANUARY 24, 2019 KEYNOTE ADDRESS SPEAKER W. Taylor Reveley, III, President Emeritus of William & Mary, and John Stewart Bryan Professor of Jurisprudence Emeritus at William & Mary Law School* Friends, let’s think back to September 1787. Our country’s Consti- tutional Convention was nearing its end in Philadelphia when a formidable woman encountered Benjamin Franklin, a delegate to the Convention.1 She braced him with this question: “Well[,] Doctor[,] what have we got[,] a republic or a monarchy[?]”2 The wise, old, battle- tested Franklin replied simply: “A republic . if you can keep it.”3 So, friends, we have a republic if we can keep it. We have a free so- ciety if we can keep it. Just what role do property rights—the freedom to acquire and govern our assets—play in nurturing our republic and our society? It is the rare American these days who doesn’t feel that our coun- try’s civic life and democratic institutions have gotten pretty ragged, and our political and social fabric dangerously frayed. This feeling runs across the political and cultural spectrum from citizens who find Donald Trump and Fox News the “be all and end all” to those who sit at the feet of Nancy Pelosi or Bernie Sanders, aided and abetted by CNN and MSNBC. Perhaps the citizens most concerned about the sad state of our political and social fabric are those who fall be- tween these two poles, hoping everyone will take a deep breath, cool the invective, and get on with the work at hand.
    [Show full text]
  • The Essential JOHN STUART MILL the Essential DAVID HUME
    The Essential JOHN STUART MILL The Essential DAVID HUME DAVID The Essential by Sandra J. Peart Copyright © 2021 by the Fraser Institute. All rights reserved. No part of this book may be reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. The author of this publication has worked independently and opinions expressed by him are, therefore, his own, and do not necessarily reflect the opinions of the Fraser Institute or its supporters, directors, or staff. This publication in no way implies that the Fraser Institute, its directors, or staff are in favour of, or oppose the passage of, any bill; or that they support or oppose any particular political party or candidate. Printed and bound in Canada Cover design and artwork Bill C. Ray ISBN 978-0-88975-616-8 Contents Introduction: Who Was John Stuart Mill? / 1 1. Liberty: Why, for Whom, and How Much? / 9 2. Freedom of Expression: Learning, Bias, and Tolerance / 21 3. Utilitarianism: Happiness, Pleasure, and Public Policy / 31 4. Mill’s Feminism: Marriage, Property, and the Labour Market / 41 5. Production and Distribution / 49 6. Mill on Property / 59 7. Mill on Socialism, Capitalism, and Competition / 71 8. Mill’s Considerations on Representative Government / 81 Concluding Thoughts: Lessons from Mill’s Radical Reformism / 91 Suggestions for Further Reading / 93 Publishing information / 99 About the author / 100 Publisher’s acknowledgments / 100 Supporting the Fraser Institute / 101 Purpose, funding, and independence / 101 About the Fraser Institute / 102 Editorial Advisory Board / 103 Fraser Institute d www.fraserinstitute.org Introduction: Who Was John Stuart Mill? I have thought that in an age in which education, and its improvement, are the subject of more, if not of profounder study than at any former period of English history, it may be useful that there should be some record of an education which was unusual and remarkable.
    [Show full text]
  • Handbook for New Jersey Assessors
    Handbook For New Jersey Assessors PHIL MURPHY, Governor ELIZABETH MAHER MUOIO, State Treasurer Issued by Property Administration – Local Property Division of Taxation – Department of the Treasury State of New Jersey Trenton, New Jersey Revised April 2021 April 2021 April 2021 April 2021 April 2021 New Jersey Property Taxpayers’ Bill of Rights P.L. 2017, c.128 N.J.S.A. 54:1-2.1 Overview The Property Taxpayers’ Bill of Rights ensures that: 1. All property taxpayers are accorded the basic rights of fair and equitable treatment under the State Constitution and laws of New Jersey; 2. All property taxpayers receive the information and assistance they need to understand and meet their property tax responsibilities. Services to Property Taxpayers As a property taxpayer, you have the right to obtain information explained in simple, nontechnical terms about: Your responsibilities and rights as a property owner and property taxpayer; Your real property assessment and how it is determined and calculated; Your right to appeal and how to appeal an assessment you believe is incorrect as to your property or as to another property in the same county and the time limits involved; Your right, in the context of a property tax appeal, to view the property record card of other real property in the municipality. Responsiveness You have the right to expect questions will be responded to within a reasonable amount of time. Statements and Notices You have the right to expect all notices you receive will clearly identify the purpose of the communication and the proper procedure when responding. For More Information Many Local Property Tax forms and publications are available on the Division of Taxation’s website at: www.state.nj.us/treasury/taxation/.
    [Show full text]
  • Self-Ownership, Property, and Moral Desert
    Adrian Bardon FROM NOZICK TO WELFARE RIGHTS: SELF-OWNERSHIP, PROPERTY,AND MORAL DESERT ABSTRACT: The Kantian moral foundations of Nozickian libertarianism sug- gest that the claim that self-ownership grounds only negative rights to property should be rejected. The moral foundations of Nozick’s libertarianism better support basing property rights on moral desert. It is neither incoherent nor im- plausible to say that need can be a basis for desert. By implication, the liber- tarian contention that persons ought to be respected as persons living self-shap- ing lives is inconsistent with the libertarian refusal to accept that claims of need can sometimes outweigh claims to property. Nozickian libertarians maintain the view that persons can hold absolute rights to property, even though the assertion of such rights may place others in a position such that their basic subsistence needs are not met. In this paper I examine the moral foundations of Nozickian libertarian- ism. I argue that the libertarian claim that persons ought to be re- spected as persons living self-shaping lives entails that claims of need can sometimes outweigh claims to property. In the first part of the paper, I outline some arguments that under- mine the standard libertarian claim that self-ownership is the moral ground for absolute negative rights to property. I also examine argu- ments showing that moral desert based on labor is a more secure foun- Critical Review (), no. ISSN ‒.© Critical Review Foundation. Adrian Bardon, Department of Philosophy, Wake Forest University, Winston-Salem, NC , thanks Bruce Aune, Fred Feldman, Jack Hanson, Clay Splawn, Jean-Paul Vessel, and two anonymous reviewers for their extensive and invaluable comments on an earlier draft.
    [Show full text]
  • Self-Ownership, Freedom and Eudaimonia
    Georgia State University ScholarWorks @ Georgia State University Philosophy Theses Department of Philosophy Spring 5-13-2011 Self-Ownership, Freedom and Eudaimonia Keith D. Fox Georgia State University Follow this and additional works at: https://scholarworks.gsu.edu/philosophy_theses Part of the Philosophy Commons Recommended Citation Fox, Keith D., "Self-Ownership, Freedom and Eudaimonia." Thesis, Georgia State University, 2011. https://scholarworks.gsu.edu/philosophy_theses/78 This Thesis is brought to you for free and open access by the Department of Philosophy at ScholarWorks @ Georgia State University. It has been accepted for inclusion in Philosophy Theses by an authorized administrator of ScholarWorks @ Georgia State University. For more information, please contact [email protected]. “SELF-OWNERSHIP, FREEDOM AND EUDAIMONIA” by KEITH D. FOX Under the direction of Andrew Jason Cohen ABSTRACT In this thesis I will explore the relationship between Nozick’s self-ownership principle and freedom. I will defend G.A. Cohen’s critique of self-ownership and try to show how his argument that self-ownership is hostile to genuine freedom presents a problem for Nozick. I think it is clear that Nozick’s self-ownership does little to protect a meaningful sort of freedom; and a meaningful sort of freedom is exactly what Nozick aims to protect. This is true because eudaimonistic moral beliefs ought to undergird Nozick’s self-ownership thesis, and self-ownership can therefore be assessed in light of whether it actually promotes human flourishing in the relevant ways. This undergirding eudaimonism becomes clear when we see that self-ownership is intended to protect the ability of each individual to pursue and act upon her own conception of the good.
    [Show full text]
  • Locke and the Right to (Acquire) Property: a Lockean Argument for the Rawlsian Difference Principle
    1 Locke and the Right to (Acquire) Property: A Lockean Argument for the Rawlsian Difference Principle Richard Oxenberg I. Introduction The purpose of my paper is to show the derivation of what has sometimes been called the ‘new liberalism’ (or, as we might now call it, ‘progressive liberalism’) from the basic principles of classical liberalism. In particular, I wish to argue that a careful analysis of the right to property as developed by John Locke shows that this right is neither absolute nor unlimited. Indeed, analysis shows that, considered in the light of modern capitalist society, to honor this right will demand a fairly robust and ongoing program of progressive taxation, aid to the poor, and social programs sufficient to bring the distribution of property into accord with John Rawls’ difference principle. To properly grasp Locke’s theory of property rights it is first of all necessary to make a distinction between the natural right to property as it exists in the Lockean ‘state of nature’ and the societal right to property as it may be established by consent in a socio-economic political system. I begin, then, with an examination of the natural right to property and then proceed to consideration of the societal right to property. II. The Natural Right to Property Of classical liberalism’s celebrated triad of natural rights – life, liberty, and property – the right to property is distinctive. Unlike the others, it is a right to something not inherent to our individual natures. Whereas life belongs to us as biological entities and liberty, arguably, as 2 rational agents, material property does not naturally inhere in us at all.
    [Show full text]
  • Transformative Environmental Constitutionalism's Response to The
    humanities Article Transformative Environmental Constitutionalism’s Response to the Setting Aside of South Africa’s Moratorium on Rhino Horn Trade Melanie Murcott Department of Public Law, University of Pretoria, Lynnwood Road, Hatfield 0002, South Africa; [email protected] Received: 7 September 2017; Accepted: 5 November 2017; Published: 7 November 2017 Abstract: South Africa’s rhino population is under threat of extinction due to poaching for purposes of illegal international trade of rhino horn. The South African government has thus far been unable to regulate rhino poaching effectively. One of the legal responses was to introduce a moratorium on local trade of rhino horn. However, in 2015 the High Court set aside the moratorium. Subsequent appeals against the High Court’s decision to the Supreme Court of Appeal and the Constitutional Court were dismissed without a hearing. The anthropocentric approach to the protection of biodiversity under South African environmental law is reflected upon in this article. It is argued that the High Court adopted an unapologetic and uncritical anthropocentric approach to the issues before it. A legal theory of transformative environmental constitutionalism is proposed as a means to infuse litigation about global environmental problems with substantive environmental considerations, such as precaution, prevention and equity. These principles could facilitate a more ecocentric orientation towards the application of environmental laws. Keywords: rhino; environmental law; transformative environmental constitutionalism 1. Introduction Species extinction and biodiversity loss are two of the many disturbing impacts of the Anthropocene, a time that acknowledges ‘the devastating and overwhelming impact of people on Earth and its systems’, as ‘the consequences of human actions have become the major factor in influencing ecological outcomes’1.
    [Show full text]
  • Chapter 7 the CONCEPT of PROPERTY
    Chapter 7 THE CONCEPT OF PROPERTY Section 1. THE UTILITARIAN THEORY Justifications of property on utilitarian grounds are at least as old as David Hume, the eighteenth-century Scottish empirical philosopher. In Hume’s treatment, the utilitarian argument is at once an answer to Locke—property is not a natural right but a product of civil society—and a justification of property—civil society needs a concept of property in order to operate. See L. BECKER, PROPERTY RIGHTS: PHILOSOPHIC FOUNDATIONS 57–64 (1970); Berry, Property and Possession: Two Replies to Locke-Hume and Hegel, in PROPERTY 89–95 (J. Pennock & J. Chapman eds., Nomos No. 22, 1980). The following extracts expand on Hume’s ideas in two different directions: the first from the great utilitarian philosopher Jeremy Bentham, emphasizes how dependent property is on society; the second, by a modern economist, emphasizes how important property is for maximizing the wealth of society: [p*133] J. BENTHAM, THEORY OF LEGISLATION 111–13 (R. Hildreth ed. 1864)1 The better to understand the advantages of law let us endeavor to form a clear idea of property. We shall see that there is no such thing as natural property, and that it is entirely the work of law. Property is nothing but a basis of expectation; the expectation of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand towards it. There is no image, no painting, no visible trait, which can express the relation that constitutes property. It is not material, it is metaphysical; it is a mere conception of the mind.
    [Show full text]
  • The Human Right of Property
    University of Miami Law Review Volume 72 Number 3 Spring 2018 Article 3 4-24-2018 The Human Right of Property José E. Alvarez New York University School of Law Follow this and additional works at: https://repository.law.miami.edu/umlr Part of the International Law Commons, and the Property Law and Real Estate Commons Recommended Citation José E. Alvarez, The Human Right of Property, 72 U. Miami L. Rev. 580 (2018) Available at: https://repository.law.miami.edu/umlr/vol72/iss3/3 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. ARTICLES The Human Right of Property JOSÉ E. ALVAREZ * Despite the absence of a comprehensive global pact on the subject, the human right to property protection—a right of property but only rarely to specific property—exists and is recognized in 21 human rights instruments, including some of the most widely ratified multilateral treaties ever adopted. The Cold War’s omission of property rights in the two prin- cipal treaties on human rights, namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, has been overtaken by events. But that reality continues to be re- sisted by legal scholars, including human rights advocates, as well as by many across the political spectrum from many on the left (who associate property rights with misguided “Western” models for economic development) to some on the right (who see it as yet another intrusion on sovereign discretion sought by global elites).
    [Show full text]