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account and both of theirs. Both Essert’s and Austin’s views of property depend upon the institution of conventional rules of trespass to make sense of the nature of a property right;33 my account does not. I have not had to cite any conventions, or even rules of law, to elaborate my impersonal characterization of the rights, powers, and duties, which make the idea that a right is transmissible a plausible one. I think that is an advantage, for it would at least allow us to pursue the idea that transmissible rights may be justified as natural or universal rights, that is, rights which do not depend upon the institution of a legal system or state. As I shall claim in Section 4, property rights can be justified as rights of this kind, and it would be unfortunate if the very possibility of justifying property rights as natural rights were foreclosed by the kind of theoretical elaboration that Essert and Austin give them.

4. Justifying Transmissible Rights

I now turn to the second of the questions with which we began, whether and how transmissible rights can be justified.

The first issue to consider, given that a right to immediate, exclusive possession of a tangible is one thing, and the power to transfer title to it another, is whether these norms have different grounding justifications, and it would seem fairly clear that they might. Consider our old friend the contractual debt to be paid £10 by C. I think it would surprise most contract theorists if you told them that, in order to justify how C might have the power to bind himself to pay A £10 by agreeing to do so, they would also, at the same time, and necessarily so as a matter of the logic of personal rights generated by agreements, have to justify A’s power to assign the debt to B. On the other hand, we do tend to see the link as more essential in the case of tangibles. I think the reason why is fairly obvious on a moment’s reflection. Unlike purely personal claim-rights, as a matter of the nature of things tangibles and persons are not so intimately linked. Blackacre will be around forever, so if it is always owned, necessarily it will be owned by more than one person. Chattels may outlast their owners as well. In the case of tangibles, what is mine might well have been, or might well be yours, so the idea of transmissibility is, in that sense, native. But as far as I can see justifying the institution of the claim-right to immediate, exclusive possession is distinct from, indeed logically prior to, justifying any rules of succession, including of course the power of an incumbent to transfer it. Before one can justify a power to transfer, one must know what is to be transferred, and whether having that ‘what’ is justified in the first place. The same, of course, applies to the question of transferring intangible rights; there is no point in working out the details of assigning the rights under a hit man’s contract if it turns out (as happens to be the case) that no one has the power to create such contracts in the first place.

The key to my non-conventional justification of the right to transfer property is the idea, which typifies the work of Raz and Gardner,34 that humans, as part of

33Essert 2013, 15–20; in contrast to Essert’s account, I would say that an owner occupies not an office, but what he would call a ‘role’; Austin this volume.

34Raz 1975; Raz 2011; Gardner 2007.

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their cognitive endowment, are able to respond to facts as reasons. That is, humans regard features of the world35 as giving them reasons for acting in various ways, and to understand rational human behaviour is to understand how they operate with respect to reasons. Raz famously distinguished between the case where one is not subject to an exclusionary reason, where rationality requires that one weigh up all the various reasons for acting in one way rather than another and then decide to act in the way indicated by the balance of reasons, and the case where one is subject to an exclusionary reason. The most important and interesting kind of exclusionary reason is a moral reason. A moral reason is one which prevails over (at least some of ) those reasons which are one’s current personal goals. Though my (perfectly rational and acceptable) current personal goal is to finish this chapter, if you stumbled through my door requiring immediate medical attention I would be under a moral obligation to stop writing and help you get it. Our question here, then, is whether in light of this ability of human beings to respond to reasons, and respond in particular to exclusionary, moral, reasons, we can explain the transmissibility of property rights, in particular the power to transfer, without making reference to conventions. I think we can. To get the sense of this non-conventional approach to powers, let us first consider Shiffrin’s non-conventional justification of the power to authorize what would otherwise be a battery.

4.1 The power to authorize what would otherwise be a battery

Shiffrin states:36

One could imagine a conception of autonomy without consent in which an agent exercised complete sovereignty over her body and other personal spaces, such as the home, but had no ability to share or transfer these powers to others. That is, the agent could not grant consent to others to exercise these powers in lieu of or alongside herself. Such a structure is imaginable but so impoverished as to be utterly implausible. As Joseph Raz has argued, the development and realization of our central autonomous capacities requires a diverse and rich set of meaningful options. Rights of autonomous control that were inalienable to this degree would render (morally) impossible real forms of meaningful human relationships and the full definition and recognition of the self (not to mention making medical and dental care cumbersome, dangerous, and awfully painful). To forge meaningful relationships, embodied human beings must have the ability to interact within the same physical space, to share the use of property, and to touch one another. They must therefore be able to empower particular people. A plausible account of autonomy would have to reject the isolation the constricted model of self-sovereignty would enforce as inconsistent with affording opportunities to lead a decent life and realize one’s central capacities. It would have to include the power of consent to share at least some of the powers associated with self-sovereignty.

This passage is a most compelling statement of what might be called the ‘social thesis’, the thesis that the ‘default’ characterization of human existence for the purposes of exploring interpersonal morality is not that of a hermit in some state of

35Entities, properties, events, causal and other relations, the lot.

36Shiffrin 2008, 501–2.

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nature who shares no interests with others, but one in which interpersonal relations of real significance are native or natural to human existence. As such, those normative means, like the power to consent to be touched by another or to make agreements, which make those interpersonal relations possible, are not some cultural achievement which we could plausibly be without, but are part and parcel of our natural endowments, in the same way as our basic responsiveness to reasons makes us (in part) the kind of creatures that we are.

I am not sure how much weight Shiffrin wishes to place on the Razian considerations of autonomy she cites; I would not place much. It seems to me that, considerations of the value of autonomy to one side, what her characterization of the importance of the power to consent makes plain is the ability of different individuals to respond to the same reason, not only when the interest is one they might share (forming a meaningful relationship), but even where the reason in question is an interest of only one of them (to have some dental work done). If this is right, then in order to explain the norms of property, all we have to do is make plausible that these norms are exclusionary reasons to which we would naturally respond in the appropriate social context. I take it that the preceding passage more than makes plausible the case for the power to consent to what would otherwise be a battery, so we can move on.

4.2 The right to immediate, exclusive possession of property

Imagine coming out of the woods and finding some fish neatly piled on the riverbank, or a basket of apples. I take it that you would not regard the fish or the apples just being there in that state as the result of some natural process, or, more precisely, since humans are part of nature, some process in which human agency was not involved. You would assume the fish to have been caught, and the apples gathered, by some person or persons. My sense is that you would understand that to grab the fish or the apples would be to interfere with some other human agent’s purposive activity and that, understanding the interest people have in the success of their purposive activity, you would understand it to be wrong to take the fish or the apples, i.e. you would understand yourself to have a duty not to interfere with them. The duty would not be an absolute one, of course, but that is not the issue. Rather, respect for the interest that others have in the fulfilment of their purposes and the fish’s and apples’ contribution to that in this case could be cognitively assimilated, that is, understood by you, as a reason not to interfere which would prevail over your current, personal, goals, such that it would be both rational and reasonable to regard yourself to be under a duty not to interfere. Again, the point is not at this stage to determine the stringency of the duty, just its possibility. No convention is required here, just an understanding of human nature and the nature of the world in which we operate (it has fish, it has apples, they are edible, the former need to be caught and the latter need to be gathered, and so on). Much the same could be said about other appropriations, such as fencing off land to keep one’s cattle in, planting a field, building a dwelling, and so on, although the judgments here require greater subtlety, and the reason for this greater subtlety is just that land, conceived of as a location, or space, can be used in different, and

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non-competitive ways. Moreover, this respect of the agency of others extends beyond the case of humans. Imagine you observe a bird laboriously constructing a nest over the course of several hours. I am not sure whether birds have rights, but I do think the bird’s interest in the success of this project is a reason for you to forbear from smashing the nest just for the hell of it. A child who did so would quite properly be scolded.

Seeing the right to immediate exclusive possession as not requiring a convention deepens our appreciation of the way that the duty in rem not to interfere with the tangibles of others is general. Again, the key is responsiveness to reasons. The reason why the duty is general—and this is the systematic element of the duty not to interfere with property which can be mistaken for conventional—is that the responsiveness to reasons that gives rise to a right of possession are not personal to the individual appropriator; we deceive ourselves on this point when we think of coming across the caught fish lying on the bank or the apples gathered in the basket and naturally appreciate that it was a particular person or group of persons who did the fishing or gathering. But the reason is not personal to them; it reflects the way that human agency gives rise to reasons. We have a duty not to grab the fish or dump the apples out of the basket not because of ‘fish exploitation reasons’ or ‘apple valuation reasons’ that are relative to the particular appropriator, any more than we think the reason not to smash the bird’s nest is a reason which applies only to that particular bird. We have that duty because of our reasons for respecting purposive human agency generally insofar as that involves engagement with the tangible resources of the world. We are not concerned with the particular uses or goals that the right holder has for the tangibles which he appropriates, just that they are appropriated.

At this stage of the argument I must emphasize that I am only justifying the right to immediate exclusive possession, not ‘full-blown’ title, with the power to transfer, and so on. I set out to justify those further incidents below. Nor am I, as I said at the outset of this section, saying that this right is absolute. Not all appropriations ought to be respected, any more than every agreement (e.g. to murder someone) ought to be respected. Nor am I saying that any engagement with the material world should be respected as an appropriation giving rise to a right to immediate exclusive possession. Consider the case of arrows marked in chalk dust on wilderness trails helping people find their bearings.37 I should regard it as wrong of me to rub them out for no reason, but at the same time it is not because anyone has an immediate right to exclusive possession of these marks.

In the case of genuine appropriations, it is important to see that no compact or convention is needed to understand how this responsiveness to the reasons that the presence of human agency brings to the table is reciprocal, working just as much for the individual duty ower as for the right bearer whose right is respected. A particularly misleading rhetorical trope that arises in discussions of the justification of property needs to be addressed here. In looking at justifications of property, one often hears that the right to immediate exclusive possession needs to be justified by the right

37 I owe the example to Rob Chambers.