A HUMEAN THEORY OF PROPERTY RIGHTS by Ira K. Lindsay A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (Philosophy) in the University of Michigan 2014 Doctoral Committee: Professor Peter A. Railton, Chair Professor Elizabeth S. Anderson Professor Allan F. Gibbard Professor Scott A. Hershovitz © Ira K. Lindsay 2014 DEDICATION For R. Kenneth and Sylvia Lindsay parents and teachers ii ACKNOWLEDGMENTS I came to Michigan in 2004 to study philosophy. I had a keen interest in ethics, but little background in the subject, much less philosophical views on it. Peter Railton, Elizabeth Anderson, and Allan Gibbard provided a wonderful education in moral psychology, metaethics, political philosophy normative ethics and much else. After several years devoted to legal education and training, I returned to Ann Arbor in 2011 because of them. To my great good fortune, Scott Hershovitz had joined Michigan Law School while I was away. This work is influenced not only by their advice as members of my committee, but also by my studies with each of them, sometimes in subtle or unexpected ways. I am also thankful for support, encouragement and guidance from numerous other members (past and present) of Michigan’s philosophy department including Sarah Buss, Victor Caston, Steve Darwall, Matt Evans, Jim Joyce, Michelle Kosch, Louis Loeb, Ishani Maitra, Gabe Mendlow, Scott Shapiro, Jamie Tappenden, and Rich Thomason. Chloe Armstrong, Paul Boswell, Annette Bryson, Dmitri Gallow, Nils Hennes-Stear, Jeremy Lent, Chip Sebens, Jon Shaheen, Patrick Shirreff, Will Thomas, and Robin Zheng commented on large parts of this work. Special thanks are due to two philosophers without whom this work would not have been written. Hans Oberdiek first introduced me to political philosophy as a freshman at Swarthmore College and has provided encouragement ever since. Jules Coleman guided my circuitous path from graduate school, through law school, two jobs as a lawyer and back to graduate school. It was Jules who first encouraged me to work on Hume’s theory of property, although it took me several years to fully appreciate the wisdom of this advice. Finally and most importantly, Irina Trenbach has continuously encouraged my studies despite the hardships they entail for the rest of our family. Over the course of ten years, six moves, three degrees, and two additions to our family, her enthusiasm has never flagged. Whatever has been accomplished here is truly a team effort. iii TABLE OF CONTENTS DEDICATION ........................................................................................................................ ii ACKNOWLEDGMENTS ......................................................................................................... iii ABSTRACT ........................................................................................................................... v CHAPTER I - HUMEAN PROPERTY THEORY: A DEFENSE ...................................................... 1 CHAPTER II - PROPERTY AS GOVERNANCE AND WEALTH.................................................. 71 CHAPTER III - PROPERTY RIGHTS, TAX OBLIGATIONS..................................................... 132 BIBLIOGRAPHY ................................................................................................................ 181 iv ABSTRACT My dissertation defends a Humean theory of property rights against its neo-Lockean and ‘resource egalitarian’ rivals. Humean property rights are conventional and not grounded in pre- institutional moral entitlements. Nevertheless, the importance of property rights for facilitating social cooperation between people with differing views about justice gives them normative authority even when they do not conform to ideal principles of distributive justice or ‘natural right.’ I develop a conceptual architecture of property rights and property interests in order to dispel confusion about the relationship between property’s legal form and economic substance. Although the structure of property rights constrains the extent to which property ownership can be fragmented in the service of egalitarian distributive goals, robust private property rights are compatible with extensive social insurance. This analysis undermines the neo-Lockean position that all redistributive taxation is an infringement of property rights and provides an attractive middle ground between libertarianism and strong forms of egalitarianism. Humean theory justifies giving normative weight to pre-tax property entitlements when determining tax obligations. I use this insight to rebut Liam Murphy and Thomas Nagel’s argument that principles of tax equity are vacuous because pre-tax income has no moral significance. Viewing tax policy exclusively from the perspective of post-tax income effaces the important role of tax fairness norms in preventing wasteful tax policy when people disagree about fundamental principles of distributive justice. I distinguish my view from Gerald Gaus’ recent critique of Murphy and Nagel. Whereas Gaus is skeptical of redistributive taxation, my theory of tax fairness is compatible both with classical liberalism and with a more robust social welfare state. v CHAPTER I HUMEAN PROPERTY THEORY: A DEFENSE Discussions of property rights in political philosophy usually take John Locke as the central figure.1 Lockean property rights are central to an important strand of classical liberal and libertarian traditions and are often the target of criticism from those with views further to the left.2 Neo-Lockean views, such as Robert Nozick’s, are, however, a minority position. In the wake of the paradigm setting work of John Rawls, property rights are most often analyzed in light of more abstract principles of distributive justice. Under this approach, rules fixing property entitlements are an output of a theory of justice and not, as Lockeans would have it, an independent constraint on state action. I will call theories that evaluate property rights in light of abstract principles of distributive justice founded on some conception of equality ‘resource egalitarian’.3 Discussions of property in political philosophy are often structured as a debate 1 E.g., Jeremy Waldron, The Right to Private Property (New York: Oxford University Press, 1988); Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974). Despite Waldron’s longstanding interest in Lockean property, he has recently written, “I think it would be a good idea if [Hume’s] theory were as widely studied, or as widely used as a template for the study of property, as the Lockean theory presently is.” Jeremy Waldron, “‘To Bestow Stability upon Possession’: Hume’s Alternative to Locke” in Philosophical Foundations of Property Law, James E. Penner & Henry E. Smith, eds., (Oxford: Oxford University Press, 2013), 12. 2 E.g., Nozick, Anarchy, State and Utopia; Eric Mack, “The Natural Right of Property,” Social Philosophy & Policy 27 (Winter 2010): 53-78; Loren Lomasky, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987). 3 Resource egalitarianism is most strongly associated with the work of John Rawls, which is largely responsible for framing the resource egalitarian research agenda. However, Ronald Dworkin might be a better example of an archetypal resource egalitarian since his theory of distributive justice follows more directly from a conception of moral equality. See Ronald Dworkin, “What is Equality? Part 2: Equality of Resources,” Philosophy and Public Affairs 10, no. 4. (Autumn, 1981): 283-345. 1 between resource egalitarians and neo-Lockeans. There is, however, a third alternative. Humean theories of property rights provide an ideological middle ground between neo-Lockean and resource egalitarian theories. Humeans join resource egalitarians in rejecting natural rights as a source of property entitlements. But they join Lockeans in believing that private property rights are a constraint on state action independent of abstract principles of distributive justice. Although somewhat neglected in mainstream political philosophy,4 Hume’s theory of property was an important forerunner of game theoretic analysis of norms and conventions and Humean property theory is more closely connected with the social sciences than either of its rivals.5 In this chapter, I defend a Humean approach to property rights. Hume’s treatment of property rights in the Treatise is innovative, but far from comprehensive and so any Humean theory must fill in important details. My approach is Humean in that it embraces most of the elements of Hume’s theory, but is not exactly the same as Hume’s. I aim to show that Humean property theory is a compelling alternative to neo-Lockean and ‘resource egalitarian’ theories and will explore how it can ground a broader neo-Humean political theory. First, I will introduce the two main rivals to Humean property theory. Second, I briefly explain Hume’s account of property rights and artificial virtue in A Treatise of Human Nature. Third, I describe the advantages of Humean theory over neo-Lockean and resource egalitarian alternatives. Finally, I 4 Exceptions include Jerry Gaus, Jeremy Waldron and Brian Barry. See Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World, (Cambridge: Cambridge University Press, 2011); Jeremy Waldron, “The Advantages and Difficulties of the Humean Theory of Property,” Social Philosophy and Policy 11 (1994): 85–123; Brian Barry, A Treatise on Social