Natural Law Commons^™

Natural Property Rights: A Reply, Eric R. Claeys

Texas A&M Journal of Property Law

This Reply concludes the symposium hosted by the Texas A&M University Journal of Property Law on the author’s forthcoming book Natural Property Rights. The Reply shows how natural law and rights apply to a wide range of doctrinal examples raised in this symposium—including business associations, correlative oil rights, timber extraction, sinking coastlands, water law, nuisance law, property rights in subsurface minerals, and the issues about sovereignty and property disposition associated with Johnson v. M’Intosh (1823). The Reply also addresses a wide range of skeptical objections to natural law—especially the arguments that it relies too much on intuitions and …

The Natural Right Of Property, Timothy Sandefur

Texas A&M Journal of Property Law

This Article offers a critical examination of Eric Claeys’s argument for natural property rights, focusing in particular on the questions of self-ownership and the so-called “Lockean proviso.” It argues that while Claeys is generally on the right track in his argument for natural property rights, he errs in omitting a self-ownership argument, some version of which is necessary for a proper naturalistic account of property, and that the Lockean proviso is neither necessary for such an account nor defensible in its own right. I conclude that the concerns animating the Lockean proviso argument are adequately dealt with by an alternative …

The Future Of Natural Property Law: Comments On Eric Claeys’S Natural Property Rights, Christopher Serkin

Texas A&M Journal of Property Law

Professor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing.

There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of …

Property And Moral Responsibilities: Some Reflections On Modern Catholic Social Theory, Lucia A. Silecchia

Texas A&M Journal of Property Law

Professor Eric Claeys’s forthcoming book, Natural Property Rights, offers a deep perspective on property rights principles. However, while the law tends to focus—as I believe it must—on property rights, rights are inextricably intertwined with duties or responsibilities. The natural rights framework for property is, as Claeys says, “good enough for government work.” It reflects a principled way for the government to allocate property rights and use the law to protect them.

However, it is necessary to look beyond what is desirable for government to protect through law. Other sources propose parameters for reasoned use of property with an emphasis …

Ad Coelum And The Design Of Property Rights, Joseph A. Schremmer

Texas A&M Journal of Property Law

This Article seizes on a specific doctrinal discussion in Eric Claeys’s Natural Property Rights to argue for the importance of understanding property doctrines in the context of a system of interconnecting rules and standards and not in isolation. The ad coelum doctrine provides that land ownership entails ownership of the suprajacent airspace as well as the underlying subsurface. As Claeys’s discussion highlights, scholars disagree about the significance of ad coelum both conceptually, as to what function the rule serves in defining and allocating property, and normatively. It is only by viewing ad coelum in the context of how it interacts …

Oil, Trees, And Water: Evaluating The Transition From Natural Property Rights To Property Conventions, John A. Lovett

Texas A&M Journal of Property Law

In his new book, Natural Property Rights, Eric Claeys offers a property theory grounded in a person’s ability to make productive or purposive use of a resource and the requirement of clear communication about the extent of a person’s claim to that resource. This Article illustrates some of the normative and practical advantages of Claeys’s theory by using it to explicate three property disputes that have arisen in Louisiana concerning highly contested natural resources—oil, trees, and water. The Article argues that Claeys’s theory illuminates a major focal case in the development of Louisiana’s law of the obligations of neighborhood, …

Natural Property Rights: An Introduction, Eric R. Claeys

Texas A&M Journal of Property Law

This Article introduces a symposium hosted by the Texas A&M University Journal of Property Law. The symposium is on a forthcoming book, and in that book the author introduces and defends a theory of property relying on labor, natural rights, and mine-run principles of natural law. Parts I and II of the Article preview the main claims of the book, summarizing part by part and chapter by chapter.

The rest of the Article illustrates how the theory introduced in the book applies to a contemporary resource dispute. The Article studies an ongoing lawsuit styled Campo v. United States, now …

Balancing The Inequities In Applying Natural Property Rights To Rights In Real Or Intellectual Property, Lolita Darden

Texas A&M Journal of Property Law

Eric Claeys’s book, Natural Property Rights, introduces a Lockean-based theory of interest-based natural property rights. Central to Claeys’s theory are the concepts of justified interests and productive use. A justified interest, Claeys writes, exists when an individual demonstrates a stronger interest in a resource than anyone else in the community and uses the resource productively in a manner that is “intelligent, purposeful, value-creating, . . . sociable,” and leads to survival or flourishing. Claeys’s theory demonstrates “how a standard justification for property gets implemented in practice” and how a community’s “goods” build on the individual’s goods.

Claeys’s community “goods” focus, …

Business Organizations As Natural Objects Of Ownership, Kevin Douglas

Texas A&M Journal of Property Law

Given the importance of “property rights” in American law and cul- ture, academic and judicial disagreement over the content of the con- cept is a problem. Professor Eric Claeys makes considerable progress toward resolving this problem in his forthcoming book, Natural Prop- erty Rights. Using John Locke’s labor theory of property, the treatise identifies intelligible limits to the kinds of objects that qualify as prop- erty and provides guidance on how legal rights should operate for a given category of objects. It also identifies several examples of American law that already follow a Lockean framework. The chapters Designing Property Rights …

How Far Does Natural Law Protect Private Property?, James W. Ely Jr.

Texas A&M Journal of Property Law

This Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century.

The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical …

Too Simple Rules For A Complex World? Prior Appropriation Water Rights As Natural Rights, Vanessa Casado-Pérez

Texas A&M Journal of Property Law

This Article assesses the fit of Professor Claeys’s theory of Natural Property Rights to traditional prior appropriation, the regime that allocates water in the West, and its capacity to fit the future of the regime. Natural Property Rights does not offer clear answers to the conflicts under the prior appropriation doctrine of water when there is scarcity. This Article explores the lack of determinacy of Claeys’s theory and the maladjustment between the theory and some of the foundational prior appropriation principles, which cannot be ignored even in the most stylized form of the regime. In particular, the Article analyzes the …

Comparing & Contrasting Economic And Natural Law Approaches To Policymaking, Eric Kades

Texas A&M Journal of Property Law

Eric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap …

Opus As The Core Of Property, Adam Macleod

Texas A&M Journal of Property Law

No account of property law can achieve a comprehensive understanding without factoring in natural rights. Professor Eric Claeys’s new book offers a significant contribution to contemporary property theory by setting out the most comprehensive and defensible theory of natural property rights to appear in a long time. Claeys describes the function of property as productive work. Intentional planning, purposeful effort, and creative ordering enable people to achieve lives of flourishing. And, as Claeys demonstrates in careful detail, the various norms and institutions of property law make possible those exercises of practical reason and the flourishing that results from them. Natural …

Natural Law, Assumptions, And Humility, Ezra Rosser

Texas A&M Journal of Property Law

This review of Natural Property Rights celebrates Eric Claeys’s efforts to resuscitate natural law as a viable approach to property law. Although readers unlikely to be convinced that natural law is the way to best understand property rights, Claeys succeeds in breathing new life into natural law. Natural Property Rights’ emphasis on use as property law’s fundamental value creates space to reconceptualize the rights of property owners and the place of non-owners within a just theory of property rights. The main critiques of Natural Property Rights offered in this review center around the choice to prioritize rights over duties …

Adapting To The Changing World Of Biotechnology: Syngenta Ag Mir162 Corn Litigation As Regulation By Litigation, Paul Goeringer

Texas A&M Law Review

Agriculture has relied on plant breeding to improve genetics since the first domestication of agricultural plants 10,000 years ago. More recently, Gregor Mendel and his hybridization experiments on peas led to what we know as modern genetics. The rise in recombinantDNA technology has opened up many possibilities in plant breeding, including Roundup Ready technology and crop varieties designed to resist a number of pests. At the same time, governments and the private sector have sought to institute regulations for handling the releases of new biotechnology to ensure the technologies will have limited environmental impacts and provide safe foods to the …

Recognizing Challenges And Opportunities In The Quest To End Hunger, Jennifer Williams Zwagerman

Texas A&M Law Review

As an attorney and professor that does not focus on intellectual property law, I was a bit apprehensive about providing a keynote address for a Symposium focusing on “Agriculture, Intellectual Property, and Feeding the World in the 21st Century.” As I thought about this topic, knowing that there were other speakers who would focus more on the IP issues and technical aspects of various topics, I kept coming back to the importance of technology as we worktowards the goal of feeding the world, and the many ways in which innovation plays a role in meeting that goal. It also brought …