Possession Is Not a Basic Aspect of Well-Being Safeguarded by the Principle of Respect

1. Neither Any Particular Possession nor the Capacity to Possess Seems Obviously Like an Authentic Dimension of Welfare

While they are strongly protected by the Principle of Fairness, just possessory claims do not deserve the unqualified respect to which basic aspects of welfare are entitled.

If controlling the disposition of (justly acquired) possessions were itself a basic aspect of well-being, any purposeful or instrumental attack on a just possessory claim would be unreasonable. Perhaps, the argument might run, a person’s possessory claims to material realities external to her person should be treated as equivalent to

her person, as an extension of her body. Just as it would be wrong to attack a person’s body, on this view, it would be equally wrong, and wrong for the same basic reason, to attack her possessions. But there is little reason to believe that possession is a basic dimension of flourishing or well-being.

Possessions themselves are at least ordinarily instrumentally rather than intrinsi-cally valuable (Subsection 2). Possessing something does not appear to be a basic reason for action (Subsection 3). Interference with possessory interests is, indeed, sometimes experienced as an injury without the need to refer to any other aspect of well-being (Subsection 4). But other approaches to identifying basic dimensions of welfare don’t seem to suggest that possession is such a dimension. There does not seem to be anything self-contradictory about denying that possession is a basic aspect of welfare (Subsection 5). Possessory interests enjoy respect cross-culturally, but not necessarily in a way that shows that they are treated as basic (Subsection 6). It’s not clear that reflective equilibrium grounds support for treating them as such, either (Subsection 7). There does not seem to be any justification for treating attacks on possessory interests as attacks on basic aspects of well-being, and so on the self, at least in general (Subsection 8). And even if possession were a basic aspect of well-being, the Principle of Fairness, rather than the Principle of Respect, would still typically be the norm that determined whether a given interference with another’s possessions was or wasn’t just (Subsection 9). Exceptionless protections for possessory claims probably cannot be grounded in the Principle of Respect (Subsection 10).

2. Possessions Themselves Seem to Be Instrumentally Rather than Intrinsically Valuable

There is good reason to understand the value of possessions as instrumental. For

“anything human persons make, or have, considered as distinct from persons . . . cannot be basic. It is always for . . . reasons which culminate within persons . . . that individuals and communities are concerned with such goods.”¹³² We acquire a phys-ical object because it is beautiful, because it will provide space for a family to flour-ish, because it will promote bodily well-being—because it will enable us to achieve other goals. Even if we don’t know just what we will want to do with money we acquire, we understand that we acquire it to achieve other ends. We can and do explain our acquisition of particular possessions in terms of the ways in which we’re able to flourish in virtue of having those possessions. In short: we ordinarily pursue the acquisition of particular things as an instrumental rather than as an intrinsic good, and I think we would be inclined to regard the pursuit of material objects, or of material wealth more broadly, as fetishistic unless undertaken for some ulterior

132 Finnis et al., supra note 1, at 178.

purpose. (We might have good reason to regard the attempt to obtain or retain a just possessory claim with respect to some specific, identity-constitutive possession—

understood as inherently valuable—as a different matter. But such claims should not, I have argued, receive particular protection from the legal system.)

Doubtless the lines are not absolutely clear. My hand is part of me, and so intrin-sically valuable; by contrast, an object I control with my hand is not. But of course some things that are external to me may be identity-constitutive in ways that some aspects of my body—the tips of my hair or of my fingernails, say—are not. And of course a prosthesis would seem to have a more intimate relationship to my identity than a purely external object (a tool, for instance), but less so than, say, a flesh-and-blood hand. (Would it matter whether the hand was grafted on, regrown, or an orig-inal part of my body?) So it might seem reasonable to talk here about a difference in degree rather than in kind. It seems to me, though, that (i) we do characteristically treat the relationship between our identities and parts of our bodies as a different kind from at least most of the relationships between our identities and physical real-ities external to our bodies. Further, (ii) even if the difference is judged to be a differ-ence in degree rather than in kind, the differdiffer-ence in degree seems to be substantial.

And (iii) the difference between the bodily and the nonbodily can thus conveniently serve, for legal purposes, as marking a bright-line distinction in many cases.¹³³

3. We Don’t Characteristically Treat Possession as a Basic Reason for Action Of course, it does not follow from the fact that this or that possession is instrumental that possession itself is instrumental. Perhaps one pathway or another to the identifi-cation of other aspects of human well-being as basic might also justify characterizing control over the use and disposition of justly acquired possessions as a basic aspect of welfare. It may be that we value possession itself—control over aspects of the non-sentient world that have come legitimately to be ours—intrinsically. The ques-tion, then, is: do we treat possession as a reason-terminator? Do we regard posses-sions justly. or maintaining control over the use and dispossession of justly acquired possessions as itself an exhaustive explanation of or justification for an action?¹³⁴ And it seems, in general, that we do not: rather, we reason in terms of the instrumental value of particular possessions.

To be sure, we extend ourselves into the physical world when we come to possess things, and the capacity to possess things in at least relatively undisturbed fashion would seem to be a constitutive component of personal autonomy. But autonomy

133 Thanks to an anonymous reader for emphasizing the need to clarify this point.

134 Cf. Finnis, Ethics, supra note 57, at 51–52; Finnis, supra note 7, at 51–99; Chappell, supra note 57, at 35).

is not itself a basic aspect of well-being—rather, it is a precondition for flourishing that is safeguarded in virtue both of the value of those aspects of well-being and of the requirements that flow from the requirements of practical reasonableness.

(Anyone who is unwilling to accept infringements on her own autonomy in a given set of circumstances will act unreasonably if she infringes on another’s in similar circumstances. The protection of autonomy is also a by-product of the protection of other interests of which we must reasonably take account in accordance with the Principle of Fairness. And it is difficult to avoid violating the Principle of Respect when infringing on another’s autonomy.) Interference with people’s justly acquired possessions will be unreasonable insofar as they are assaults on basic aspects of well-being or violations of the Principle of Fairness. But it does not seem as if any and all interferences with people’s just possessor claims will be either attacks on basic aspects of welfare or instances of unfairness.

4. We Sometimes Regard Deprivation of Possessions as a Harm

A basic aspect of well-being just is what has been (ultimately) damaged any time one has suffered a recognized harm or loss. Certainly, when something has been stolen from me, I am inclined to see the wrong done not only as instrumental—so that theft, say, is objectionable just because it keeps me from enjoying some future benefit—but also as a violation of a protected sphere of my existence. When you take something that is legitimately mine, I will be inclined to experience this as a violation quite apart from its obvious instrumental undesirability.

Consider an analogy with liberty. Someone might argue that “[p]eople want lib-erty in order to pursue the truth, to worship as they think right, to participate in the responsible play of political decision-making, to live in friendship, and so on.”¹³⁵ In fact, however, people often seem to seek liberty because they do not wish to be dom-inated, suborddom-inated, pushed around; they appear to value liberty for its own sake.

Similarly, while it might at first be thought that possession mattered only instrumen-tally, we do seem sometimes to regard an attack on a moral patient’s possession of something as a harm in its own right, apart from any particular instrumental loss resulting from the attack.¹³⁶

It might be possible to explain this phenomenon, first of all, by adverting to the Principle of Fairness. Intrusion into someone’s protected sphere understandably provokes resentment because the intruder treats her victim in a way she would be unwilling to be treated herself or to see her loved ones treated. Given that one’s

135 Finnis et al., supra note 1, at 278).

136 Our concern in these cases may be seen as with the attacker’s attitude—her disrespect for our just pos-sessory claims—as well as with her violation of our autonomy, along with our related right to control our possessions.

possessory claims are rightly protected in accordance with the Principle of Fairness, one might reasonably treat the violation of those claims as problematic because unfair, quite apart from the specific losses suffered as a result of the violation (to seek and value fairness is itself an aspect of practical reasonableness). And this might be enough to explain someone’s characteristic reaction to interference with her pos-sessions as undesirable apart from specific instrumental consequences; there would be no need to invoke the notion that possession itself, or any possession, should be seen as a basic aspect of well-being. (This kind of analysis probably works for lib-erty as well, given that violations of liblib-erty are often, ultimately, violations of the Principle of Respect—not because liberty itself is a basic aspect of well-being, but because attacks on liberty are frequently at the same time attacks on various aspects of well-being, notably bodily well-being, peace of mind, and practical reasonable-ness—and the Principle of Fairness.)

Of course, thieves with no claim at all to possessions they have stolen may be angry when those possessions are reclaimed—even (perhaps sometimes especially) by the just possessors. While the recognition of harm in the case of theft does high-light something of moral importance, any account of possession would be deficient to the extent that it failed to give adequate attention to the distinction between justly and unjustly acquired possessions. That this is so highlights the dependence of any account of possession as a fundamental dimension of flourishing on independently specified rules governing the acquisition, retention, and extent of possessory claims.

Even, therefore, if possession were a basic aspect of well-being, the Principle of Fairness would still (as I will argue in more detail below) play a crucial role in deter-mining its contours.

5. It Is Not Obvious That Denying the Possibility of Just Possessory Claims Would Ensnare One in Self-Contradiction

Perhaps it might be argued that denying the inherent value of possession involves one in self-contradiction. One might maintain, for instance, that one cannot adopt a purpose as one’s own without valuing autonomy, and that one cannot value auton-omy without valuing the just possessory claims that make it possible to be autono-mous, so that anyone who attempts to achieve a purpose while denying the value of just possessory claims is implicitly contradicting herself.¹³⁷ This sort of argument would not settle which claims were just, however. And even if the argument were persuasive, it would not follow that one would thus be treating possession itself as a

137 See, e.g., Hans-Hermann Hoppe, The Economics and Ethics of Private Property (2006);

cf. David D. Friedman, The Trouble with Hoppe, Liberty, Nov. 1988, at 4, available at http://www.

daviddfriedman.com/Libertarian/On_Hoppe.html.

basic aspect of well-being. Rather, it seems as if one could just as well be understood to be affirming its undoubted instrumental value, its integral connection with the pursuit of inherently valuable aspects of welfare.

6. There Is Clear Cross-Cultural Support for the Protection of Possessory Interests, But Not Necessarily for Identifying Possession Itself as a Basic

Aspect of Welfare

While cross-cultural support for the identification of something as a basic aspect of welfare is a pointer to—not constitutive of—its status,¹³⁸ cultural variation in this area is enormous. Some control over resources has been seen as crucial, but whether that control should be vested in particular persons or in groups, whether it should be viewed instrumentally, how far it should extend, and how it might appropriately be established have been viewed quite differently. That doesn’t mean that some culture-specific possessory patterns aren’t preferable to others, that some cultures aren’t more insightful than others as regards possessory issues, but it does mean that it’s hard to ground the claim that possession as such is a basic aspect of well-being in cross-cultural consensus.

7. Reflective Equilibrium Provides Little Support for the Notion That Possession Is a Basic Aspect of Welfare

It seems likely that recognition of just possessory claims of some sort will form part of a system of beliefs in reflective equilibrium, but it is unclear that a reflective-equilibrium-based approach would be sufficient to justify the claim that possession was a basic aspect of welfare. That is because it will be possible to cash almost any argument for the value of possession as an argument for its instrumental value.

8. There Isn’t Much in the Way of Convergent Support for the Notion That Possession Is a Basic Aspect of Well-Being

We appear to value possessions instrumentally. Asking whether the claim justly to possess some particular thing serves as the terminus in a plausible chain of practi-cal reasoning seems to lead to a negative answer, even if possession itself might seem a more likely candidate for status as a fundamental aspect of flourishing.

The approach by way of privation suggests, albeit not definitively, that we may see, at least, control over what is already legitimately ours as intrinsically important, but this may be because others’ respect for one’s possessions is an aspect of their

138 See Finnis, supra note 7, at 83–85, 97.

treating one in accordance with the requirements of practical reasonableness, and not because possession itself is a basic aspect of well-being. There is little reason to think that either the claim that a given possession was a basic aspect of well-being or the claim that possession itself was an aspect of well-being could be denied without self-contradiction. Cross-cultural evidence and reflective equilibrium alike might provide some general support for the value of possession, but certainly quite little support for treating it as an intrinsic good. There is little in the way of convergent support from these various approaches for the notion that possession itself is an intrinsic, rather than instrumental, aspect of well-being. I think it likely makes more sense to read evidence that might be adduced in support of the view that an attack on a just possessory claim is an injury in its own right as supporting the view that just possessory claims, though instrumental, play vital roles in securing autonomy, in protecting our capacity to flourish, and in fostering our flourishing (particularly given that respecting just possessory claims is a way of treating us in accordance with the Principle of Fairness), and should therefore be regarded as very robust indeed.

9. Even if Possession Were a Basic Aspect of Well-Being, the Principle of Fairness, Rather than the Principle of Respect, Would Still Be Decisive

as Regards Most Instances of Interference with Others’ Possessions

There might be some limited reason to think of possession as a basic aspect of wel-fare. But it will often be the case that an infringements on a possessory claim cannot plausibly be understood as a purposeful or instrumental attack on a just possessor’s claim to possess (whatever she possesses) without interference. Actions which cause harm to possessions or impede a just possessor’s control over her possessions may be incidental rather than purposeful or instrumental. Thus, even if possession were a basic aspect of well-being, it would not rule out these incidental harms. Instead, the appropriateness of causing them would need to be assessed using the Principle of Fairness.

A further, related, problem is that acknowledging the intrinsic value of possession wouldn’t answer the question of what scheme or schemes of possessory rules should be understood as just. Treating possession as intrinsically valuable provides no par-ticular basis for defining just what claims ought to be secure against interference and how these claims ought to be acquired.

The definition of just possessory claims—including both their acquisition and their extent—seems unavoidably dependent on the Principle of Fairness. But if this is the case, then, even if possession were a basic aspect of well-being, the actual contours of just possessory claims would be little different from what they would be if they had been defined in light of the Principle of Fairness without any reference

to possession as a basic aspect of well-being. If exceptions to general possessory rules were consistent with the Principle of Fairness, it is not clear why such exceptions would not be reasonable even if possession were understood to be a fundamental dimension of flourishing. It’s just that the Principle of Fairness would lead to the prior definition of the relevant boundaries.

Suppose someone took another’s possessions under circumstances in which doing so would be justifiable if possessory rules were simply determined in accordance with the Principle of Fairness: it seems as if taking another’s possession would similarly be justified if possession were a basic aspect of well-being—provided the contours of possession were shaped by the Principle of Fairness. Thus, it is unclear that treating possession as a basic aspect of well-being, even were it defensible, would yield moral conclusions different from those that would result if possessory rules (and so posses-sory claims) were seen as derivative from the Principle of Fairness.

10. Exceptionless Protections for Possessory Claims Cannot Plausibly Be Rooted in the Principle of Respect

If the good of possession were understood as involving the baseline possessory rules without exception, the Principle of Respect might generate exceptionless prohibi-tions on interfering with others’ possessions. But it is difficult to see how the view that possession should be seen as a basic aspect of well-being, or the claim that, if

If the good of possession were understood as involving the baseline possessory rules without exception, the Principle of Respect might generate exceptionless prohibi-tions on interfering with others’ possessions. But it is difficult to see how the view that possession should be seen as a basic aspect of well-being, or the claim that, if