Mike Huemer, to repeat, is my favorite philosopher.  Here are some highlights from his recent working paper, “Is Wealth Redistribution a Rights Violation?” [footnotes omitted]

There are at least three broad views one might take concerning the foundation of
property rights:

a. The Extreme Realist View: Property rights are moral rights that individuals possess, which are in every aspect and detail independent of social conventions, laws, and the state.

b. The Extreme Legalist View: Property rights are in every aspect and detail dependent on government-created laws. (N.B., property rights are normally understood as not only legal but also moral rights; this is why theft is not just illegal but unethical. The Legalist View is not merely that certain legal rights are dependent on laws, but that the relevant moral rights are dependent on laws.)

c. The Moderate View: Certain broad aspects of property rights are natural, independent of conventions and laws; however, other aspects and details of property rights must be settled by conventions or laws.

Which of these views are plausible…?

The Extreme Realist View… [is] highly implausible on reflection. Consider an example from the economist David Friedman: if I fire a thousand megawatt laser at my neighbor’s house, I thereby violate his property rights. On the other hand, if I turn on a lamp in my house, knowing that some photons will go out the window and hit my neighbor’s house, I do not thereby violate his property rights. The only physical difference between these two actions lies in the number and energy levels of the photons that I send my neighbor’s way. So there must be some principle governing the number and energy levels of photons that one may send onto another person’s property (of course, the principle need not be formulated in those terms): there is some amount of light at which it first becomes a rights-violation. But it is not plausible that this is determined purely by natural law. We need some sort of convention or (human-made) law to settle the matter.


We might be tempted, then, by the Extreme Legalist View: perhaps all questions about property rights are to be settled by government-made laws. Again, the claim here would not be the trivial one that the legal questions are settled by laws, but the ambitious claim that the moral questions as to one’s property rights are entirely settled by laws. This view can be broken into two component theses: (i) Laws that recognize a particular set of property rights are necessary for the existence of moral property rights; without legal rules governing property, there would be no property rights. (ii) Laws that recognize a particular set of property rights are sufficient for the existence of moral property rights; for example, the existence of such conventions or laws makes it pro tanto morally wrong to take, damage, or use an item that, according to the conventions, belongs to another person, without that person’s permission.

But both theses are implausible. Begin with (i), the idea that laws are necessary for property rights. Suppose you are exploring a remote wilderness region outside the jurisdiction of any government, when you come upon a clearing containing a rude hut. The hut appears to have been built by a hermit, who is its only inhabitant. Since property rights depend entirely upon governmental laws, and none are in force here, you determine that the hermit does not own the hut. Over his vociferous protestations, you decide to spend the night in the hut, eat some of the food that the hermit has grown and gathered, and then paint the hut lime green. You don’t need to do any of these things; you just do them for fun. If there really are no property rights in this situation, you have just as much right to do these things as the hermit does.  Notice that my claim is not that in this scenario, the hermit has the full set of property rights exactly as they would be if a U.S. citizen bought some land in the United States and built a house on it. My claim, in accordance with the Moderate View of property rights, is only that there is at least some elementary, core notion of property that applies in the scenario.

Now consider thesis (ii), that certain kinds of laws are sufficient for property rights to exist. In the pre-Civil War U.S., ownership of human beings was recognized in the southern states, both conventionally and legally. Thus, thesis (ii) would imply that a slave was genuine property of his master, in a morally loaded sense. This need not preclude the possibility of arguing that some other distribution of property would be preferable (perhaps one in which no one were assigned a property right in another human being). But, given the laws as they were, one would have to say that a master in fact had the moral rights regarding his slaves that go along with property – the right to determine how his slaves were used, to sell them, bequeath them, and so on. One would have to say that for a slave to escape from his master, or for a third party to help a slave to do so, was an act of theft. I find this, to say the least, implausible…

We might be tempted to simply postulate that there are certain moral constraints, independent of the actual laws, that the state must respect in order for its establishment of a given class of property rights to be legitimate (e.g., to succeed in generating moral obligations on the part of citizens to respect the property rights that the state purports to establish). One of these constraints would be that a person may not be the property of another person. Presumably, there would be other constraints as well. But at this point, we seem to have abandoned the central idea of the Legalist View, in favor of the Moderate View of the foundations of property rights. And if we are content to posit a constraint such as “a legitimate property rights regime may not assign ownership of a person to another person,” it is unclear why we should not be equally content with such constraints as “a legitimate property rights regime must assign initial ownership of a person’s labor to that person” and other norms of the sort that would define a traditional conception of natural property rights.

The upshot is that only the moderate view of property rights is plausible. On this view, the objective moral principles governing property leave certain matters unsettled – how much light one may shine at a neighbor’s property, how high above someone else’s land one may fly, and so on. It is for laws and conventions to settle those matters. But the laws and conventions are not completely unconstrained; they must respect certain broad normative truths about property.