Professional Documents
Culture Documents
7:416
Some years ago, when there was a plan in the works for tearing
down a nice old church and replacing it with one of the undist-
inguished structures, part barn and part motel, that were the main-
stay of ecclesiastical architecture at the time, I got together with a
colleague from the Architecture School to try to put a Historic
Preservation Ordinance through our City Council. At the time, the
vicissitudes of local politics had put a Republican in the mayor's
office and a majority of Republicans on the Council-something
that had not happened before in my time, and was not to happen
again. Our ordinance was working its way through the legislative
process, slowed mainly by the natural mefiance between politicians
and academics, when the mayor took a good look at it and decided
that it interfered with rights of property. That was the end of it.
The conservatism prevailing in city government at the time was not
for conserving buildings, but for conserving property rights. The
church came down and was replaced according to plan.
It is with the right that so concerned the city fathers that Pro-
fessor Jeremy Waldron deals in this lucid and authoritative book.
only one bad poker game or a few shares of worthless stock and
some people will end up as propertyless as the day they were born.
To make sure that everyone has property, we will have to place
restrictions on use and transfer that will be inconsistent with genu-
ine property rights for anyone. The possibility of being a loser is
inherent in the power to make decisions.
Waldron considers and rejects the view often put forth that
Hegel's requirement for full humanity will be satisfied if everyone
has the opportunity to acquire and retain property even though
some fail to do so. Whatever values are promoted by the struggle to
acquire and retain, they are not the same ones we have in mind
when we assert that people all need something to call their own. A
lottery ticket is not a bank account.
On the other hand, Waldron is willing-although with some
misgivings, it seems to me-to allow enough restrictions on the ex-
ercise of property rights to make sure that people are not done out
of their property once they get some. It is not clear to him that
such restrictions necessarily make the right illusory.
By ending with a bottom line he is not quite sure of, he gives
the book a less powerful conclusion than it deserves. But he be-
lieves that his most important contribution is not in answering the
question private property yes or no, but in organizing and analyzing
the arguments that can legitimately be deployed on the subject. In
the process he shows us that private property is not a single juridi-
cal form supported by a single moral argument, but that different
arguments support different forms. It is especially important that
SR arguments lead to quite different legal results from GR
arguments.
With this distinction, he unmasks a number of specious argu-
ments that have been put forward by a few theorists, and by many
politicians, business executives, and possessors of inherited wealth.
We are all familiar with the arguments in question; typically, they
run something like this: Property, like life and liberty, is a basic
human right. Therefore to interfere with my right of property by
keeping me from chopping down my forest (making me install
safety devices in my factory, giving some of my land to the peasants
... ) is to interfere with a basic human right, thus violating the
Judaeo-Christian tradition, the Constitution, the writings of the best
philosophers, and the Helsinki accords. Behind the rhetoric is a
move to appropriate the intuitively attractive GR argument in such
a way that it will rub off on intuitively weak SR based claims, or
even on the intuitively repellent claim that if something is my prop-
erty I can do just as I damn please with it.
422 CONSTITUTIONAL COMMENTARY [Vol. 7:418
4. R. UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT 32-36, 52-56 and passim
(1986).
5. SeeR. RODES, LAW AND LIBERATION 74-77 (1986).
6. S. WEIL, THE NEED FOR ROOTS 35 (1952).
424 CONSTITUTIONAL COMMENTARY [Vol. 7:418