再思私有财产（英文）

INTRODUCTION This paper explores a connection between law and economics, but not from the conservative point of view that is familiar in jurisprudence today. Instead I bring together the work of legal theorists in the realist and critical legal studies (CLS) schools, and the work of political theorists and economists writing in the market socialist tradition. It is my contention that the legal writers provide some of the theoretical underpinning needed by the market socialist project, while the market socialists provide concrete detail about alternative social and legal arrangements which is missing from many CLS analyses. The central focus of the paper is property, and the viability of a market socialist project to devise a different kind of private property and free market system. At first sight, it is hard to see such a project as ‘socialist’. Socialism is usually associated with the goal of replacing private property and the free market with social ownership and an economy consciously planned to meet human needs. This is indeed typical of the Marxist strand of socialism, but Marxism and socialism are not co-extensive. Market socialists accept that market mechanisms should have a large role in a socialist economy, although they differ on their approaches to property rights. One version of market socialism argues that public ownership can be combined with market mechanisms, while another moves even further away from the Marxist position and embraces both the market and private property. It is this second version which I am going to concentrate on in this paper. This second version of market socialism seeks to rework the basic ground rules of private property and the free market so that socialist end-states tend to be produced naturally as a result of people freely exercising their newly configured property and market rights. This market socialism is therefore distinguishable from an approach which relies more upon ex post facto rejigging by the state of an already existing end-state. The familiar left-liberal and social-democratic models tend to favour this approach: they generally © Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA * Senior Lecturer, Faculty of Law, University of Otago, Box 56, Dunedin, New Zealand 465 JOURNAL OF LAW AND SOCIETY VOLUME 24, NUMBER 4, DECEMBER 1997 ISSN: 0263–323X, pp. 465–85 Reconceiving Private Property MICHAEL ROBERTSON* 466 © Blackwell Publishers Ltd 1997 leave capitalist ground rules for private property and the market in place, but then seek to alter the end-states produced when these institutional structures play themselves out. The market socialist project which I shall describe in this paper relies far more on ‘private’ mechanisms than ‘public’ action to achieve the end-states it desires, but its supporters are always clear that some role for the state in taxation, redistribution, and planning will still remain.1 Why is it appropriate to link CLS to this version of market socialism, rather than a more traditional ‘left’ position on property? In the first place, it fits well with the CLS approach to social change. In his paper, ‘The Critical Legal Studies Movement’, Roberto Unger repeatedly stresses the method of not rejecting the central organizing concepts of a society, but rather seeking to give them a different content. He refers to this variously as ‘internal development’, or ‘revolutionary reform’, and is adamant that it can lead to significant social change, not merely reformist tinkering.2 The version of market socialism which retains the central concepts of private property and the free market, but which seeks to reconceive them in ways which advance socialist ends, obviously accords well with Unger’s CLS methodology. As well, there are more direct connections between CLS and this version of market socialism. As we shall see, a number of important CLS writers have explicitly endorsed the project of reconceiving private property, and a few have even attempted to carry that project forward by providing detailed models. There are good strategic political reasons today for CLS property theorists to support a market socialist project which seeks to maintain an important role for both private property and the free market. The failure of Soviet- style Marxism has probably crippled any attempt to advance the notion of widespread public ownership for some time ahead, even public ownership as part of a market socialist economy. Recently the ‘interventionist’ methods of the welfare state have been coming under strong attack too. The defenders of private property and the free market are in the ascendancy today, and I suspect that any changes to existing arrangements will only succeed if they can shelter under these same banners. I conclude that any CLS analysis of existing property arrangements which is to go beyond critique, and set out politically realizable alternatives, is likely to embrace some form of the market socialism described in this paper. OBJECTIONS TO THE PROJECT OF RECONCEIVING PRIVATE PROPERTY This market socialist project involves interesting challenges in the areas of property rights and property theory. One challenge is the detailed specification of how property rights and market rights would change from what we are familiar with now. I will describe one response to this challenge 467 © Blackwell Publishers Ltd 1997 later. But before this stage can be reached, there are a number of more theoretical objections to the viability of the project which must be faced. I hope to show that the writings on property theory within legal realism and CLS provide powerful responses to some of these objections. 1. The conceptual objection The first objection is that you cannot significantly alter the current bundle of private property rights, and blithely claim that what you end up with is still private property. After all, you cannot significantly change the shape of a circle and be confident that you will still end up with a circle. Similarly, it may be impossible to pursue the market socialist project I have described, because if you change property rules enough to produce socialist outcomes, you will have moved outside the concept of private property altogether. The other objections do not deny that it is conceptually possible for the state to change private property rights in the radical way proposed by the market socialist, but claim that the state should not do so, for the reasons that follow. 2. The efficiency objection The result will be less efficient than what we have now. Market socialist writers spend a lot of time responding to this important objection, but I shall not deal with it at length in this paper. The economic debate is complex and technical, and would divert me from considering the contribution of legal realism and CLS to the project of reconceiving private property. 3. The natural rights objection The bundle of rights which makes up private property derives from some non-governmental source, and it is therefore not within the legitimate role of the state to change it. This is a natural rights or Lockean objection. Paul Brest writes that: From its inception, liberal theory has had two traditions, originating in the writings of Locke and Hobbes respectively. Under the Lockean or ‘natural rights’ version, citizens retain certain inalienable rights, held in the pre-governmental state of nature, that the state may not abridge. Under the Hobbesian or ‘positivist’ version, citizens entering into civil society relinquish all natural rights and possess only those rights granted by legislatures and other lawmaking institutions.3 I will not respond to the natural rights objection in this paper, and will instead confine myself to objections made from within the positivist tradition. To consider the voluminous writings surrounding the Lockean theory of property would similarly divert me from my main focus. 468 © Blackwell Publishers Ltd 1997 4. The public/private objection It is characteristic of liberal political theory to be concerned to limit the role of the state. Thus, it becomes crucial to demarcate a public zone where state action is legitimate and desirable, and another private zone where the state should keep out. This private zone is one of freedom, because the coercive power of the state is excluded. Instead, what happens in the private zone is determined by the free choices of individuals. On the classical liberal picture, the market, freedom of contract, and the use of private property are to be found in the private zone. But if this is the case, any market socialist project which would have the state deliberately enter the private zone to reorganize market and private property rules would violate the proper boundaries for state action and threaten freedom. 5. The neutrality objection Although the public/private distinction fits very well with a Lockean approach, there is a tension when it is urged by those in the positivist strand of liberalism. Since, on a positivist approach, the rules regarding market transfers, private property, and voluntary contracting must originate with the state, the state has to be involved to some extent in the private zone, which therefore cannot ever be completely free of state action. Thus, for a more sophisticated liberal positivist, the public/private objection to the market socialist project needs to be refined. What is crucial is not that the state stay out of the private zone, but that the property, market, and contract rules set up by the state be neutral. They should merely facilitate the non- coercive seeking by individuals of their private preferences and visions of the good life, rather than impose the state’s values or preferences. But the market socialist project wants to choose particular property and market rules precisely because they generate certain end-states and advance certain values and, hence, it is not neutral. REALIST AND CRITICAL LEGAL STUDIES RESPONSES TO THE OBJECTIONS I have relied upon a number of sources to extract what I believe would be the responses to these objections by realist4 and CLS5 writers. The realist and CLS writing on property theory is valuable, but it is not as extensive and sustained as it is in the areas of contract and constitutional law, for example. In what follows, I therefore attempt to expand their insights and provide concrete examples of the points they make. 1. Response to the conceptual objection The realist and CLS position is that the conceptual objection does not have any force when dealing with concepts such as private property and the 469 © Blackwell Publishers Ltd 1997 market. There is not one way, or even a narrowly restricted set of ways, that abstract concepts such as these can be made concrete. If we return to the example of a circle mentioned earlier, the abstract concept of this geometrical form largely dictates the shape that any attempt to concretize it will have. There is only one choice open to the circle-creator, that of the radius and hence the diameter. But with concepts like the market and private property, there are many more choices that have to be made in order to make them concrete, and the combination of different ground-rule choices can create many varied market and private property ‘shapes’ which still fit the abstract concepts. It is when we lose sight of the existence and crucial role of these ground-rule choices that we can come to see the private property and market systems we are familiar with as being somehow natural or inevitable, and the conceptual objection arises. The realist and CLS writers sought to remind us of the necessary, but often obscured, choices beneath our existing market and private property systems. Take the abstract concept of a free market. Unger describes it as ‘an order in which many independent agents bargain on their own initiative and for their own account’, but he warns that too often people ‘take for granted an identity between the abstract idea of a market . . . and a particular system of contract and property.’ He urges us to ‘turn our attention to the work of imagining alternative forms of market economies . . .’.6 The key to such a project, I take it, is recognizing the significance of the choices that have to be made in concretizing this abstract concept. For example, one of the most basic choices which must be made here is deciding what kinds of entities can be the independent market actors. Consider the range of possibilities. The actors could be confined to individual human beings. One way to expand the category of market actors is to allow groups of humans to participate, but then we have to choose what types of groups will be recognized: families, tribes, partnerships, producers’ co-operatives? We can choose to expand the category of market actors even further by allowing non-human entities to participate, but again we have to decide what types of non-human entities should be allowed to do this: business corporations, municipalities, churches? The point being made here is that none of these choices is required by the abstract definition of a free market, but that each choice is very significant in terms of the type of society which will result. A market which limited participation to individual humans would fit the definition as well as one which allowed multinational corporations to participate, but the end-states and societies which would be produced as a result of these ground- rule choices would be very different. The foundational choices for any market system do not stop here, but also spread out into property and contract ground rules, since contracts involving property rights form a large part of market exchanges. With respect to property, it is necessary to decide what types of things can be owned and by what classes of the permitted market actors. For example, it has been decided in our private property system that living people can own 470 © Blackwell Publishers Ltd 1997 land, but cannot own other living people. It has been decided that living people can own some types of artificial entities, such as business corporations, but that they cannot own other types of artificial entities, such as municipalities, churches or political parties. It has been decided that artificial legal entities are able to own all of the things that living human beings are able to own, including other artificial legal entities. Again, all of these choices could have been made differently, and we would still have had a private property and market system, although we would also have had a very different kind of society. Another crucial ground-rule decision relates to the bundle of property rights that owners of different types of things will enjoy. Tony Honoré, in a famous analysis, set out what he claimed were the elements making up private property ownership in the full liberal sense.7 A defender of the conceptual objection may attempt to take comfort from Honoré’s analysis, and urge that the various rights, liabilities, prohibitions, and incidents identified in that paper are the things that are conceptually required by the notion of private property. But this is certainly not Honoré’s own position. He is very clear in this paper that he is describing a very particular case: the fullest possible ownership by one human being of one material object. He acknowledges that the liberal concept of ownership will apply to other types of things as well (for example, non-material things like copyrights), and that in those cases the bundle of rights, and so on, held by the owner will not be as extensive as in his standard case. Why then, given this variety, does he focus on the example he does, since it is not seen by him as providing the elements necessary for private property ownership to exist? The point, he argues, of describing the ownership bundle in his ‘standard’ case is that it provides the clearest paradigm of full liberal ownership. Whether ‘ownership’ will be said to exist in other cases depends on the extent of the analogy with the paradigm. Once this is understood, the market socialist project that I wish to support is quite compatible with Honoré’s analysis. First, market socialism will not deny a significant place for full, liberal ownership. The examples Honoré provides of his paradigm (for example, houses, clothing, food, umbrellas) tend to suggest that he had items for personal use and consumption in mind. Market socialists, like most socialists, stress the difference between property for consumption and property for production, and the redesigning of property rules relates only to the latter. Full liberal ownership of homes and personal chattels would continue unaffected, as they do not involve the power over other people and large social effects associated with ownership of productive assets.8 Secondly, as long as the redesigned property rules for productive assets are similar enough to Honoré’s paradigm, he would accept that they still fall under the concept of private property, or liberal ownership. I will argue that the model to be presented later in this paper makes different choices about the bundle of ownership rights in productive assets which are significant enough to produce major social change, but that the result is still private property on Honoré’s analysis. 471 © Blackwell Publishers Ltd 1997 Finally, the specification of any market system also requires significant choices to be made relating to the law of contracts.9 Since the free market requires voluntary contracts, those which are involuntary must be excluded. But this conceptual requirement does not free us from choice – rather, it requires us to choose what types of pressure or coercion will be seen as rendering an exchange involuntary. As Hale pointed out repeatedly, all contracting is performed in conditions of reciprocal (but typically unequal) pressure or coercion.10 Since coercion is an inevitable feature of contracting, we must choose what types of coercion, or power over others, we will deem to be unacceptable and what types we will allow to be normal or invisible. This is not simply a technical legal matter, for it distributes power among groups in society. Our choices here will affect the type of society which results when groups with the different powers which have been granted to them enter into bargaining. CLS writing in this area typically stresses the labour relations context, but the point remains valid for all contractual exchanges. So, to summarize, the realist and CLS response to the conceptual objection is to point out that, by themselves, the abstract concepts of private property, freedom of contract, and the market do not require any particular arrangement, or even any narrowly restricted set of arrangements. In order to give any concrete content to these abstract notions, a large number of choices have to be made about matters such as those described above. These unavoidable choices are very significant. Not only will they produce very different private-property, contract, and free-market systems, but these systems in turn will produce very different types of societies. The conceptual objection gets its greatest hold on those who have lost sight of the contingent choices at the root of the current market and property arrangements which they reify. There is therefore no a priori reason why the market-socialist project of making choices which advance socialist values and outcomes, while still falling under the concept of a private-property and free-market system, is an impossible one. This realist and CLS conclusion can claim some empirical support. Historical investigations into the forms private property have taken in the past show not a constant form but wide variation and change.11 Even the private property systems in place in capitalist countries today exhibit sig