Thursday, January 10, 2013
Eric Claeys (George Mason) has posted Productive Use in Acquisition, Accession, and Labour Theory on SSRN. Here's the abstract:
American property scholarship is sceptical of Locke’s theory of labour.
Robert Nozick (in Anarchy, State and Utopia (1974)) and Jeremy Waldron
(in The Right to Private Property (1986)) are both assumed to have
discredited Locke’s conception of labour. Locke’s theory seems
incoherent because it seems to trade inconsistently on both rights-based
and utilitarian components. And contemporary legal scholars are
generally uninterested in how law implements moral theories of rights.
In political-philosophy scholarship over the last generation, however,
Locke’s theory of labour has been substantially rehabilitated. A more
charitable line of scholarship construes Locke – like many natural-law
or – rights thinkers before him – as propounding a rights-based theory
justifying consequentialist reasoning to secure rights. In this
scholarship, the moral right to labour seems more sensible because
‘labour’ is justified in relation to the responsibility to produce goods
contributing to human self-preservation or – improvement.
This book chapter restates productive labour theory for contemporary legal scholars. The chapter shows how productive labour theory anticipates and avoids the most common sources of scepticism toward labour theory among contemporary legal scholars. The chapter also illustrates how productive labour supplies a moral foundation for legal property rights, some focus to those rights, and a substantial amount of flexibility how to qualify such rights. The chapter illustrates using: the acquisition doctrines for capturing chattels; the tort doctrine regulating disputes in which one appropriator interferes with another’s attempts to capture chattels; and the accession-related fixture and ratione soli rules, both of which take chattels out of the coverage of capture doctrine.