The Future of Natural Property Law: Comments on Eric Claeys’s Natural Property Rights

Professor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing. There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of property rights in the substance of positive law. Where property rights come from the State, the State has broad authority to reconfigure those rights. Natural rights theorists, like Claeys, want property to be a bulwark against regulation and so insist that property has a pre-political core. That core is deeply contested, however. For rights to be “natural,” they must apply widely, if not universally, accepted, or at least be derivable in the abstract. To operate at this level, they generally underdetermine the substantive content of property law. Reasoning from natural rights, therefore, often devolves into contingent consequentialist or utilitarian arguments that look anything but natural. Often, natural law is deployed to rationalize existing legal doctrines and rights. But this can sometimes feel like a bit of a failure of imagination, assuming aspects of law are necessary or inherent when in fact, they may be quite contingent. If natural law reasoning can defend even dramatically different substantive property rights, it becomes worryingly thin as a justificatory enterprise. It risks sliding into outcome-driven and conclusory analyses. One way to explore the limits of natural rights reasoning is to see whether natural rights reasoning could be used to defend a radically different set of property institutions. Instead of looking anthropologically at different communities around the world or historically at different property arrangements in our own legal history, it is perhaps interesting—or at least entertaining—to consider how natural rights theorists in the future might defend a transformed property law. What follows, then, is a thought experiment—an Article from the perspective of a fictional future. It is intended to explore whether natural law actually imposes limits on the substantive content of imagined property rights of the future. If not, it should serve as a caution for the use of natural law to justify the property regime we have today.