Fairness and Possession
by Gary Chartier
Justice in possession is not, per se, a matter of relationships between people and things. Rather, it’s a matter of relationships among people. Like many (perhaps not all) moral requirements, it has to do with how it’s reasonable for us to treat each other. The basic moral requirement of fairness means that we have good reason to take each others’ interests into account when we make decisions. In tandem with a set of truisms about human behavior and the human condition, this principle entails respect for a set of rules about possession. There is good reason for a just legal system to treat these rules as exceptionless, though somewhat less reason for individual moral actors to do so.
We can fail to be reasonable in relation to each other in various ways. For instance, I can opt to attack some aspect of your well being out of spite or a desire for revenge, or as a means to accomplishing some goal of mine. And this kind of unreasonableness is extremely important – it’s at the root of much injustice in war, for instance. But it’s not the kind of unreasonableness that typically arises when people ignore or actively violate each other’s legitimate possessory interests. Generally, the kind of unreasonable action at issue in such cases is arbitrary discrimination among those affected by an agent’s choices. This kind of unreasonableness violates what I’ll call the Principle of Fairness.
There are different ways to express this principle, none immune to criticism. For present purposes, I want to highlight a fairly simple aspect of the principle, which can be formulated something like this: avoid treating others in ways you wouldn’t be willing to be treated in relevantly similar circumstances. This formulation is rooted in what I take to be the intuitively plausible suggestion that those affected by our acts and omissions are generally quite like ourselves, and that simple numerical difference is insufficient to warrant fundamentally different treatment.
This aspect of the Principle of Fairness can serve as the basis of a set of possessory rules.
First, the Principle establishes a presumption in favor of allowing people to retain control of the things they actually possess. Most of us aren’t willing most of the time for others violently or deceptively to snatch our stuff. So it’s generally not reasonable for us to take theirs.
Of course, that basic presumption can be defeated – as the notion of objectionable snatching itself suggests. Thieves don’t like their possessions taken any more than do those who come by what they have honestly and peacefully, but our reactions to thieves’ possessory claims tend, I think justifiably, to be rather different from our responses to the claims of those the thieves have dispossessed.
Further considerations help to clarify the reach and narrow the range of just possessory rules. Taken in tandem with the Principle of Fairness, these considerations provide considerable support for what I call the baseline rules: (i) someone establishes a just possessory claim to an unclaimed physical object or tract of land by establishment effective possession of it; (ii) once a person takes possession of a physical object or tract of land, it’s up to her how it is used and what is done with it (to the extent that, in so doing, she doesn’t attack other people’s bodies or justly acquired possessions); (iii) this means, in particular, that someone with a just possessory claim that freely permit someone else to take possession of an object or tract of land that is hers, on any mutually agreeable terms. If I’m right about the baseline rules, then, while it will be true in some sense that possessory norms are conventions, they are tightly constrained conventions, since fairness seems to require that reasonable possessory norms incorporate the baseline rules.
A look at some relevant considerations will help to make clear how they support the baseline rules.
All other things being equal (presuming, in particular, that costs can’t be shifted onto the unwilling, as so often happens in connection with abuses ranging from slavery to pollution), everyone benefits as supplies of the goods and services people want increases and their costs decrease. If people’s possessory rights are stable, so that they can bargain with others and keep what they are promised in return for goods and services they provide, they are more likely to produce those goods and services in desirable quantities at desirable prices.
People tend to want autonomy: they want to be able to make their own decisions without, at minimum, forcible interference from others. Stable possessory claims enable people to preserve their autonomy. So it will be unreasonable for most people not to favor rules that protect such claims.
Coordinating the behavior of economic actors – setting prices and determining production levels and distribution patterns – can be a rational activity only if people have stable possessory rights.
Stable possessory rights enable people to bargain effectively with each other – such rights create a baseline for bargaining – and make people to be compensated for their past efforts.
You can’t be generous if you don’t have stable possessory rights and those to whom you give lack such rights.
People are likely to be productive – in ways that benefit themselves and others alike – when they can keep what they earn. This means, in turn, that they and those with whom they bargain need stable possessory rights.
Stable possessory rights, acknowledged as such by everyone, reduce conflict over scarce resources.
Having stable possessory rights means that people are likely to put resources to their most productive use. (This point needs some qualifying, of course, since different people have different goals; one person’s goal for a piece of land, for instance, may be precisely that it function effectively as a nature preserve.)
Reliability makes for stability and effective planning.
Simple rules are easier to formulate, articulate, understand, and apply. The baseline rules are simpler than almost all alternatives. (They are less so, perhaps, than a set of rules allowing everyone access to everything, but the other considerations certainly suggest that such rules would be undesirable.)
Some rules are likely to be rooted in self-enforcing conventions. Such rules are easier to understand and apply. And there is good reason to think that the baseline rules are, precisely, stable, self-enforcing conventions.
Stewardship matters: everyone benefits when things are well taken care, and things are well taken care of when someone in particular is responsible for everything.
These various considerations contribute to overlapping latticeworks of justification for the baseline possessory rules. In general, all of them (concern for the productivity of individual assets is arguably the one exception) tilt in the same direction: to treat others fairly, to take their interests appropriately into account, is to act in a way that takes each of these considerations seriously.
The Principle of Fairness will require compensation for violations of interests protected by the baseline rules. After all, the rules are pretty meaningless if they can be violated with impunity. Legitimate interests deserve protection. Those considering the possibility of causing harm to others’ possessions are best-situated to avoid or prevent the harms they’re considering causing; further, fairness suggests that they should not shift the costs of compensating their victims to others. And a compensation requirement will obviously serve to incentivize those who might cause harm to avoid doing so.
Exceptionless rules are simpler, more reliable, and more stable than ones that allow for exceptions. So it makes sense for a just legal system to embody such rules and for people to support them. However (I maintain), this means only that people should support the provision of compensation for actual harms resulting from the violation of such rules, not that they should favor, for instance, legal principles that would allow the use of unlimited physical violence to protect the interests delineated by the rules. Also, while the Principle of Fairness gives everyone significant reason to support the maintenance of the baseline rules, this does not mean that the Principle itself will not sometimes warrant violation of the possessory interests.
That’s because fairness is finally a characteristic of individual choices. When you’re implementing or supporting a rule that’s going to be applied across a range of cases, it makes sense to think of the rule as a general rule. But when you’re deciding for yourself in a particular case – while you still need to think of the impact of your choice on, for instance, general confidence that just possessory interests will be respected – you have to ask what’s fair for you to do in that case. So it will make sense for someone simultaneously to (a) support a rule that requires compensation for damage done while trespassing or breaking and entering without exceptions and (b) break into an abandoned mountain cabin to escape an avalanche.
Does that mean that it’s consistent with the Principle of Fairness for people to violate others’ just possessory interests with impunity as long as they’re willing to pay compensation when they’ve caused actual harm? Not quite, since there will be, as I’ve suggested, reason for someone contemplating a possible violation to recognize that the action in which she is deciding whether to engage might be unreasonable because it would tend to undermine confidence in the reliability of just possessory claims, something everyone has reason to favor. This won’t always be the case, but it certainly will on occasion.
People will also have further reasons to avoid interfering with others’ possessions willy-nilly. For one thing, just compensation for interfering with someone’s possessions won’t just amount to the value of harm resulting from the interference; it will also include the reasonable costs of recovery – the costs of identifying the person responsible for the interference and securing compensation from her. And responsibility for those costs will certainly serve as a disincentive. In addition, people who take or damage or trespass unjustly won’t be viewed very kindly by others. They’re likely to be subjected to various kinds of social sanctions over and above the demand that they compensate their victims.
Together with a range of plausible generalizations about human behavior and human preferences, the Principle of Fairness can ground a set of simple, reliable rules about justice in possession – the baseline possessory rules. The Principle doesn’t resolve all questions about possession, and it’s compatible with multiple legal frameworks. But it does constrain quite significantly what will count as a reasonable legal rule regarding possession and also, if somewhat less severely, what will count as a reasonable choice to interfere with someone else’s justly acquired possessions. Among other things, taking the rules seriously will mean avoiding the interference with others’ possessions that seems to be the defining characteristic of the predatory state.