Skeptic: Science is BS. Physicists believe in these things called “quarks,” which are little flavored particles that spin around and work like magic charms. Their evidence is that they read about them in a James Joyce novel. Some of them think the universe is made up of tiny shoelaces tied together, though they admit that they have no evidence for this and have to take it on faith. Einstein said morality is all relative – which is why he stole his ideas from this guy who worked in a patent office, and why Richard Feynman stole atomic secrets during WWII. Meanwhile, the chemists contradict the physicists and believe instead in little colored balls held together by sticks. Biologists believe monkeys can give birth to human beings. What a bunch of crap! It’s child abuse to teach kids about this stuff in schools.

Scientist: Are you joking? If not, I suggest that you actually read some science before criticizing it.

Skeptic: I’ve already read a lot about it, in blog comboxes like this one. And why should I waste my time reading anything else? I already know it’s all BS! Didn’t you hear the examples I just gave?

Scientist: No, you’re missing my point. You’ve completely distorted what scientists actually say. It’s not remotely as silly as you think it is. In fact it’s not silly at all. But you need to actually read the stuff to see that.

Skeptic: So you deny that physicists believe in quarks? What flavor are your quarks, chocolate or vanilla? Do you deny that they think we came from monkeys? Which monkey was your mother?

Scientist: No one says that monkeys gave birth to humans. That’s a ridiculous caricature. And of course I don’t deny that physicists believe in quarks, but you’re badly misunderstanding what they mean when they attribute “flavor” to them. They don’t mean that literally…

Skeptic: Oh so it’s just empty verbiage, then. See, you’re just proving my point for me.

Scientist: No, it’s not empty verbiage. It’s technical terminology.

Skeptic: I see, like magic spells. That’s why they talk about “charm.” Really, you’re just digging the hole deeper.

Scientist: Actually, it’s you who is digging your own hole deeper. That’s not what they mean by “charm.” If you knew anything at all about physics, you’d realize that.

Skeptic: See, every time I debate people like you, you always whine about how everyone misunderstands what you mean. You always say go read this shelf of books and come back when you know what you’re talking about.” It’s like one of the naked emperor’s sycophants telling the kid who sees that he’s naked that he needs to read the learned works of Count Roderigo concerning the fine leather of the emperor’s boots, etc.

Scientist: What a ridiculous analogy. You’re just begging the question. Whether science is really comparable to the naked emperor is precisely what’s at issue.

Skeptic: OK, I’ll bite. Explain it to me, then. Prove to me here and now in this combox that science is worth my time, as opposed to being the tissue of superstition, lies, and bigotry that I already know it to be. And don’t get long-winded like you people tend to do, or start throwing around references to this scientist I should know about or that book I should have read.

Scientist: What is this, an invitation to the Star Chamber? How am I supposed to explain fields as complex as quantum physics, or evolutionary biology, or chemistry to the satisfaction of someone as hostile to them as you are in a combox comment, or even a blog post or series of blog posts? Besides, there are so many things wrong with what you’ve said I don’t even know where to begin! And if I keep it short, you’ll tell me that I’m dodging whatever issue I don’t address, while if I respond at greater length you’ll tell me I’m a windbag. I can’t win! But why are you wasting time in a combox anyway? Why don’t you just read the work of some actual scientists? It’s right there in the library or bookstore if you really want to understand it.

Skeptic: I knew it. You won’t defend yourself because you know you can’t. But then, arguing with people like you just gives you credibility. That’s why you uneducated, irrational fanatical bigots need to be shouted down by reasonable, open-minded, well-read, tolerant people like me. Science is BS, and you know it. It’s just so obvious. So why don’t you go back to eating your tasty flavored quarks and tying your vibrating 11-dimensional shoestrings over at your Uncle Monkey’s house, OK? I’ll be here in the reality-based community reading my copy of The Science Delusion.

Naturally, a Dawkins or Myers would be appalled at our Skeptic. And rightly so. But replace terms like “science,” “physicists,” “quarks,” etc. with terms like “theism,” “philosophers,” “God,” etc. and you’ve suddenly got in our Skeptic a typical Dawkins or Myers fan – indeed, you’ve got someone pretty much indistinguishable from Dawkins or Myers themselves.

[Read more →]

II.        Purported Justifications
One of the earliest attempts to justify an inroad into property rights in sub-soil was made in The Case of Mines. Three arguments offered by counsel for the queen are recorded which I have labelled excellence, necessity and currency:

Excellence: “because gold and silver were the most excellent products of the soil, they should, ipso facto, go to the Queen, who was the most excellent person in the realm.”[29]

Necessity: “That the King as head of the realm needed the money to keep up the army and enforce the laws.”[30]

Currency: “That gold was necessary or coin or commerce, and the Crown ought to have it to mint,”[31]

Whilst “none of the reasoning of the judges is given, just the bare decision”,[32] I will assume that the reasons offered by counsel were the reasons accepted by the court and address the merits of each in turn.

The excellence argument is clearly problematic as it is not a given that the monarch will always be the most excellent person in the realm (especially when one pauses to consider the character and conduct of some of England’s monarchs). Further, even assuming that a monarch is the most excellent person in the realm, it would not follow that this attribute confers an automatic right to the most excellent form of every conceivable thing regardless of whether those things were owned by other people. Further, the assumption that gold is the most excellent of metals suggests that ‘excellent’ is being used in an economic sense to denote gold as the most economically valuable of metals. However, if this assumption is correct then the most excellent person must be the richest, which would entail that anyone wealthier than the queen was entitled to take her gold (an argument that I am fairly confident counsel for the queen did not intend).

The other two arguments are more plausible. They both speak to the state’s need to be able to finance the discharge of its basic functions (i.e. defence, justice, minting the currency, etc) and, as such, are arguably extensions of the necessity justification. Given the then threat of Spanish invasion, the need to raise an army in times of war and the practical uses of gold and silver in the 16^th century, these arguments may have had some merit. However, in contemporary New Zealand where the core functions of government are funded by taxation, where we keep a standing army and our currency is not minted from, or based on, gold and silver, the elements of necessity that ground the reasoning within The Case of Mines are not currently present.

As current precedent The Case of Mines can justifiably affirm the principle that in situations of necessity, such as defence or natural disaster, where the state needs a particular mineral and cannot realistically obtain it from within its own lands or by trade then it might be justified in expropriating it from private citizens for the duration of the necessity. Something like this justification was arguably present in the passage of the Petroleum Act 1937. Oil had become a mineral of strategic importance to defence as the British Royal Navy fleet had converted to oil in 1914. This proved to be critical in their sea victories during WWI. In 1919 existing regulations governing the extraction of oil were extended to private land. Driven largely by the British Navy’s need for oil, a post-war search for oil in the British Colonies began.

In 1927 a Petroleum Bill was drafted but abandoned. At the time, the petroleum industry was growing by itself; Shell and BP were both active in New Zealand, private agreements to extract petroleum were being struck and the national urgency in the wake of WWI was waning. However, as the 1930′s progressed, issues of national defence increasingly came back into focus;[33]

The growing strategic threat from Japan and Germany caused the New Zealand government to focus on the need to increase investment by international oil companies in the discovery and extraction of New Zealand’s oil reserves – and on the ability of those companies to deal with a single owner (the government) as being ‘in the national interest’.

The Petroleum Act 1937 nationalised all petroleum. The justifications cited were petroleum’s strategic importance in defence, the economy, transport and the preference of the oil companies to deal with a single party.[34] Whilst the appeal to national interests found broad support within society, the passage of the act was highly controversial.[35] It was disputed that the expropriation of private property was necessary to achieve the objectives and the lack of compensation was widely objected to, particularly so by Maori.

The Waitangi Tribunal reports that “Maori shared in the wider endorsement, and their challenge was not to the intent to nationalise the resource but to the failure to pay landowners compensation for their loss of property rights under the common law and the Treaty.”[36] The 1937 Act did not grant royalties to the landowners despite the provision to do this initially being left open;[37]

The approach of the government in 1937 and 1938 was based on the position that, where the ‘national interest’ justified action and where the owners of the confiscated rights could be presumed to share in the national benefits of the policy, no compensation for the loss of private property rights need be paid.

The government of the day appeared to hold that property rights could be justifiably overridden without compensation on the grounds of “national interests.” Traditionally these were a mixture of strategic national security issues and economic benefits to the country as whole.

A.        National Security Justifications
Now earlier I suggested that the necessity justification may apply to such appeals; however, the strategic necessity arising from factors such as the threat posed by Germany, Japan, Spain or the British Navy’s need for oil is no longer present (the British navy is these days increasingly nuclear propelled and the New Zealand Navy barely has a fleet). Yet despite the change in the strategic situation, legislation asserting ownership of petroleum, gold, silver, and uranium to the state remain — in fact, post-WWII legislation has affirmed their position as state property “whether or not the land has been alienated” and has reserved additional minerals to the collection.[38] (In the case of the continued state reservation of uranium this seems rather odd given that it appears incapable of attaining the standard for military necessity given New Zealand’s nuclear free policies.)

B.        Economic Justifications
Peter Ackroyd suggests that taking property to acquire economic benefit was a driving justification for many of New Zealand’s past legislative acts. He cites from Hansard, “The Colony, however, could not afford to dispense with the mining industry, and every effort should be made by the Legislature to assist in maintaining its position.” [39]

It is indisputable that a prosperous mining industry can contribute greatly to the progress of a society; however, whether the gain of this benefit, in and of itself, can justify the taking of another’s property seems rather dubious. Almost any taking of one person’s property by another will economically advantage the taker yet this does not typically justify taking (even if the taker invested the property in a way that ended up benefiting the takee). Every person has a right to retain their justly acquired property and to have the taking of it protected by law. Paternalistic justifications such as “it is economically good for you” are not normally grounds for overriding the rights of adults.

In the event that someone does take from another, it is normal practice under the principles of restorative justice that the taker be required to compensate the takee. Likewise, when a state takes property in the name of national or economic interest it was recognised at common law that compensation must be paid. Further it is common to find this requirement in other jurisdictions. A recent survey of the constitutional legislation within 30 OECD countries showed that 28 expressly acknowledge property rights and 24 required expropriations of property rights to be adequately justified and to not occur without compensation.[40]

In New Zealand the CMA provides compensation for the disturbance of the land caused by mining activities but not for the loss of the minerals. The situation is analogous to a judge ordering a burglar to fix the window broken during the burglary but permitting the burglar to keep the widescreen plasma TV he took from the house.

As cited earlier, a justification commonly offered for the state’s failure to pay compensation is that “the owners of the confiscated rights could be presumed to share in the national benefits of the policy.” Lewis Evans, Neil Quigley and Kevin Counsell identify a problem with this line of reasoning;[41]

This position will … only be justified if it can be shown that those affected by the confiscation of the private rights will receive benefits roughly equivalent in value to the share of the benefits that they would have otherwise received. In this case [the Petroleum Act], of course, no such analysis was done.

Even if the state did undertake this analysis of costs and benefits, the justification fails to note that compensation does not actually introduce any additional cost. The following example will bear this out. A person owns a piece of property, P. P is worth a certain value, V. If the state expropriates P and fails to compensate the owner then the owner loses V. However, if the state does compensate the owner then the state loses the value of V. Either way, someone is going to pay the cost of V. The question is who should bear this cost – the private owner or the government? Both the loss and the cost remain the same regardless of who bears it.[42]

Lewis, Evans & Quigley note that the absence of compensation increases the chance that the state will over-estimate the benefits of various takings and not accurately measure the costs.[43]

Uncompensated confiscation is not justified by actions that are deemed by politicians to be ‘in the public interest’. It is too easy for interest groups who benefit from government actions but bear none of those costs to create the appearance of a public benefit when none in fact exists. If there is a public interest, its value must be quantified against the loss to the private property rights that would be destroyed by the action. In the absence of this accounting, government will overuse its power of eminent domain and will engage in actions that impose net costs on society as a whole.

As shown above, compensating owners does not increase the cost to society but a policy permitting expropriation without compensation may.

III.       Conclusion
I have argued that there is a common law presumption in favour of property rights, which is based on a moral principle antecedent to state recognition. According to this principle, a state must justify any expropriation of property. While I granted that expropriation may be able to be justified on certain grounds, contemporary New Zealand does not currently meet such grounds. Expropriation on economic grounds is far more dubious and even if this ground could be justified, the absence of statutory provisions for compensation renders such takings unjust.

^[29] James Parcell “A Thesis on the Prerogative Right of the Crown to Royal Metals” (Government Printer, Wellington, 1960) 13.
^[30] Ibid 14.
^[31] Ibid.
^[32] Ibid 11. Parcell suggests that the report was a forgery or had been embellished.
^[33] Lewis Evans, Neil Quigley & Kevin Counsell “Protection of Private Property Rights and Just Compensation: An Economic Analysis of the Most Fundamental Human Right Not Provided in New Zealand” (2009) New Zealand Institute for the Study of Competition and Regulation (at 21 January 2010) 23.
^[34] Ibid 23-24.
^[35] Hansard and the national archives record fierce debate; breaches of the Treaty of Waitangi were alleged and the Petroleum Haka became part of New Zealand history.
^[36] Waitangi Tribunal The Petroleum Report – Wai 796 (2003) 29.
^[37] Lewis, Evans & Quigley, above n 33, 24.
^[38] Key examples: Atomic Energy Act 1945; Coal Act 1948, 1949; Iron and Steel Industry Act 1959; Mining Act 1971, which were all brought under the CMA.
^[39] Peter Ackroyd “Mining Legislation and the Reservation of Mineral Resources in New Zealand” [1988] NZLJ 41, 42.
^[40] Lewis, Evans & Quigley, above n 33, 43-48.
^[41] Lewis, Evans & Quigley, above n 33, 24.
^[42] I am grateful to Matthew Flannagan for the development of this argument.
^[43] Lewis, Evans & Quigley, above n 33, 41.

RELATED POSTS:
Can State Expropriation of Minerals be Justified? Part I
Property Rights: Blackstone, Locke and the Legislative Scheme Part I
Property Rights: Blackstone, Locke and the Legislative Scheme Part II

Drawing from Talmudic Law, the jurist Accursius of Bologna wrote the phrase cujus est solum, ejus est usque ad coelum et ad inferos (to whom belongs the soil it is his, even to heaven and to the middle of the earth) as a gloss on Justinian’s Digest.[1] By the 16^th century this maxim had become accepted common law doctrine for determining the extent of the rights enjoyed by a tenant in fee simple (“landowner”).[2] The English Laws Act retrospectively declared that “so far as applicable to the circumstances of the Colony of New Zealand,” all statute and common laws of England became “part of the laws of New Zealand.” [3] This was confirmed by the Imperial Laws Application Act 1988. Since 1840 to the present day there have been few instances where the court has held that a statute or common law of England was not applicable to the circumstances of the colony of New Zealand.[4] Hence, in the absence of statutes overriding it, the maxim is part of New Zealand law.

Historically the rights of the landowner included ownership of the minerals in the sub-soil. “The grant of the land includes the surface and … all that is infra, i.e. mines, earth, clay etc.”[5] The sub-soil minerals were assumed to be conveyed along with the land, unless the conveyance instrument stipulated otherwise.[6]

Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. … whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day’s experience in the mining countries. So that the word “land” includes not only the face of the earth, but every thing under it, or over it. And therefore, if a man grants all his lands, he grants thereby all his mines of metal …

Until the last century or so, the only minerals not subject to this doctrine were gold and silver.[7] In The Case of Mines, the court held “that by the law all mines of gold and silver within the realm, whether they be in the lands of the Queen, or of subjects, belong to the Queen by prerogative.”[8] When it came to ownership of other minerals the court held,[9]

That if the ore or mine in the soil of a subject be of copper, tin, lead, or iron, in which there is no gold or silver, in this case the proprietor of the soil shall have the ore or mine, and not the Crown by prerogative, for in such barren base metal no prerogative is given to the Crown.

Whilst gold and silver were the primary focus of the New Zealand government’s first legislative reservations of minerals,[10] successive legislation incrementally added all the “base” minerals (and more) mentioned in The Case of Mines into state ownership.[11]

Initially the state only claimed the minerals contained in state land and reserved the mineral rights on alienation of its own land.[12] However, subsequent legislation saw all land subject to a retention clause on alienation that reserved, for the state, all minerals existing in their natural condition within that land.[13] Today there are still pockets of minerals that remain in private ownership, as some land has not been alienated since the passage of the relevant legislation. However, these minerals cannot be petroleum, gold, silver, and uranium as these minerals belong to the state regardless of whether or not the land has been alienated.[14] The state possesses an exclusive right to alienate (or grant a licence to alienate) the minerals it owns.[15] In many circumstances, land owners cannot refuse consent for prospecting, exploration and mining to occur on their land.[16]

This state of affairs, with respect to the ownership of minerals, has eroded the rights of the landowner as mineral ownership has changed without the consent of the original owner. Further, this change in ownership occurred without the owner being compensated. Prima facie, this change of ownership cannot be said to be compatible with property rights.

I.          Property Rights
Property rights are often described as “a bundle of rights.” This bundle includes the full or limited right to access, use, assign, exclude others from and destroy property. William Blackstone identified property rights as “The third absolute right, inherent in every Englishman, … which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.”[17]

It is important to understand this quote in context. Blackstone grounded the legal right to property in a moral right that exists antecedent to the state.[18]

There is indeed some difference among the writers on natural law concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title;—a dispute that savours too much of nice and scholastic refinement. However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seizing to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.

Blackstone appeals to John Locke’s polemic against absolute monarchy, which sets out the locus classicus for the justification of property rights.[19] Locke argued that human beings have a series of rights antecedent to the existence of civil government. The state serves people by protecting and recognising these rights. One such right is the right to property. Locke argued that people own their own bodies and as such their own labour. When one mixes one’s labour with previously unowned land one acquires a right to this land, subject to the proviso that one leaves “enough and as good … for others”[20]

Edward Feser has suggested that Locke’s proviso is mistaken and that an initial acquisition of the sort Locke refers cannot be unjust;[21]

This, it seems to me, is a clear implication of the assumption … that external resources are initially unowned. Consider the following example. Suppose an individual A seeks to acquire some previously unowned resource R. For it to be the case that A commits an injustice in acquiring R, it would also have to be the case that there is some individual B (or perhaps a group of individuals) against whom A commits the injustice. But for B to have been wronged by A’s acquisition of R, B would have to have had a rightful claim over R, a right to R. By hypothesis, however, B did not have a right to R, because no one had a right to it—it was unowned, after all. So B was not wronged and could not have been. In fact, the very first person who could conceivably be wronged by anyone’s use of R would be, not B, but A himself, since A is the first one to own R. Such a wrong would in the nature of the case be an injustice in transfer—in unjustly taking from A what is rightfully his—not in initial acquisition. The same thing, by extension, will be true of all unowned resources: it is only after someone has initially acquired them that anyone could unjustly come to possess them, via unjust transfer. It is impossible, then, for there to be any injustices in initial acquisition.

If one mixes one’s labour with, and gains ownership of, previously unowned land then one acquires a property right to it, which in turn gives one the right to assign it to others. Given this, Locke’s proviso is unnecessary. Assignees of such land acquire the property rights along with the land. Unless another can establish that the initial acquisition was unjust or that there has been an unjust transfer at some point in the chain of ownership, the landowner’s property rights must be respected.

The moral property rights of the landowner are not absolute in the sense of never being able to be overridden.[22] Although Blackstone suggests property rights are limited “only by the laws of the land”, he qualifies this in the very next paragraph,

So great moreover is the regard of the law for private property, that it will not authorise the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.[23]

Blackstone suggests property rights can be overridden for the public good provided that, public good is understood as “the protection of every individual’s private rights”, “the legislature alone” authorises it by law and the owner is compensated. Elsewhere he suggests that necessity might be a further option; a person in need “may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor.”[24]

Ed Feser elaborates on the idea of necessity or “absolute distress”,[25]

The most obvious implication is that individuals in circumstances of what Cronin calls “absolute distress” have a right to the use of the resources of others, where the paradigm examples would be the starving man in the woods who takes food from a cabin, or a window washer who grabs a flagpole to break his fall from a building, or someone fleeing robbers who can only escape by running through someone else’s back yard. Someone in circumstances like these is not guilty of theft or the like, because for actions like the ones in question to count as theft, etc., the cabin owner or flagpole owner or homeowner would have to have such an absolute right to his property that he could justly refuse to allow others to use it even in the circumstances in question; and, according to natural law theory, no one could possibly have so absolute a property right. For the same reason, if some resource (say, the only remaining source of water in an area stricken by drought) became “absolutely necessary … to save the community or part of it from extinction,” then any individual who had heretofore privately owned that resource would have an obligation in justice to relinquish it.”

Necessity can be a justifiable but limited inroad into property rights.  Feser argues that the necessity exception can extend to political situations,[26]

It [necessity] is also what would justify the taxation required for the necessary functions of government (national defense, courts of law, etc.), since … the very existence of the community … depends on the state’s performance of these functions.

Feser also suggests that necessity might,[27]

justify taxation for the purposes of funding some measure of public assistance for those in absolute distress who are incapable of either finding work or getting help from family members and friends. For these circumstances would seem to be relevantly similar to those in which the starving man in the woods finds himself.

Whilst the right may not be absolute, a prima facie property right exists. The burden falls on the expropriator to justify takings.[28]

That we do in fact, in everyday life, put the burden of proof on the denier of claims to property is evidenced by the presumption that exists in law that the possessor of a holding is the rightful owner of it. This reflects our intuitive sense of justice in holdings. It is only (egalitarian) philosophers who—bizarrely—put the burden on the possessor to prove that we shouldn’t expropriate his holdings. Such philosophers are reminiscent of the epistemological skeptic who challenges you to prove you’re not dreaming, or are not a brain in a vat, or whatever—as if it were such strange logical possibilities, rather than the commonsense belief in the external world, that had the presumption in their favor!

In Can State Expropriation of Minerals be Justified? Part II, I will set out some of the purported justifications for expropriation of property, using the examples of petroleum, gold and silver. I  will then analyse and critique these.

^[1] Yehuda Abramovitch gives a fascinating history of the origins of the maxim in “The Maxim ‘Cujus Est Solum Ejus Usque Ad Caelum’ as Applied in Aviation” (1962) 8 McGill LJ 247.
^[2] Bury v Pope (1586) 1 Cro Eliz 118; 78 ER 375.
^[3] 858 s1.
^[4] David Williams “Gold, The Case of Mines (1568) and the Waitangi Tribunal” (2003) 7 Australian Journal of Legal History 157, 165.
^[5] Mitchell v Mosley Cozens [1914] 1 Ch 438 at 450 (CA) Per Hardy MR.
^[6] William Blackstone “Chapter 2: Of Real Property; And, First, of Corporeal Hereditaments” in George Sharswood (ed) Sir William Blackstone, Commentaries on the Laws of England in Four Books (J.B. Lippincott Co, Philadelphia, 1893) Vol 1, Bk 2, Ch 2, s 19.
^[7] R v Earl of Northumberland (1568) 1 Plowden 310 [75 ER 472] (Case of Mines). Upheld in Woolley v A-G (1877) 2 AC 163 (PC); A-G v Morgan [1891] 1 Ch 432.
^[8] Case of Mines 510.
^[9] Ibid 511.
^[10] Gold Fields Act 1858.
^[11] In 1991 all incremental legislation relating to the extraction of minerals was brought under Crown Minerals Act subject only to Ngai Tahu (Pounamu Vesting) Act 1997.
^[12] Land Amendment Act 1913.
^[13] For example, Land Act 1948 and Crown Minerals Act 1991 (“CMA”).
^[14] CMA s10.
^[15] Permits to prospect, explore and mine minerals are granted under ss23-29 of the CMA.
^[16] Access to land is covered under ss49-80 of the CMA. A landowner might succeed at vetoing the exercise of a mining permit on his or her land (if it is not a mining permit for petroleum) but stands little success opposing the exercise of a permit to prospect or explore as the public interest grounds referred to in s66 of the CMA are very broad.
^[17] William Blackstone “Chapter 1: Of The Absolute Rights Of Individuals” in Sharswood, above n 6, Vol 1, Bk 1, Ch 1, s 139. This is similar to the opening flourish of property as “sole and despotic dominion” in Blackstone’s chapter “Of Property in General” below n 18.
^[18] William Blackstone “Chapter 1: Of Property, In General” in Sharswood, above n 6, Vol 1, Bk 2, Ch 1, s 9.
^[19] John Locke Two Treatises of Government (1690) Peter Laslett (ed) (Cambridge University Press, Cambridge, 1967), Second Treatise, Ch 5.
^[20] Ibid s 27.
^[21] Edward Feser “There is no such thing as an Unjust Initial Acquisition” (2005) 22 Social Philosophy and Policy 56, 58-59.
^[22] Although Blackstone describes property rights as absolute rights of people, it is clear from the context that  by ‘absolute’ he means a right a person has in the state of nature, that is, a right that exists antecedent to any state recognition. He does not mean absolute in the sense of never being able to be overridden.
^[23] Feser, above n 21.
^[24] Ibid.
^[25] Edward Feser “Classical Natural Law Theory, Property Rights, and Taxation” (2010) 27 Social Philosophy and Policy 21, 43.
^[26] Ibid 47.
^[27] Ibid.
^[28] Feser, above n 21, 11.

RELATED POSTS:
Can State Expropriation of Minerals be Justified? Part II
Property Rights: Blackstone, Locke and the Legislative Scheme Part I
Property Rights: Blackstone, Locke and the Legislative Scheme Part II

What is a Property Right?
Property rights are often described as “a bundle of rights.” This bundle includes the full or limited right to access, use, assign, exclude others from and destroy property. William Blackstone, judge, jurist and professor of law who authored one of the most influential texts, Commentaries on the Laws of England, on the classical views of the common law and its principles, grounded the legal right to property in a moral right that exists antecedent to the state. His infamous statement at the beginning of his chapter “Of Property, in General” certainly seems to bear this out,

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.[1]

This theme of property rights being paramount is found in other parts of his writings. In “Of The Absolute Rights Of Individuals” Blackstone identified property rights as “The third absolute right, inherent in every Englishman, … which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.”[2] [Emphasis added]

The latter part of this quote has been used by some to suggest that what Blackstone really meant to say was that one can use one’s land as one see’s fit provided one does not breach any laws of the land. I certainly have heard this in class from my Professors and it is prevalent enough to be left standing on Wikipedia,

…the phrase is often presented without taking into account the greater context of Blackstone’s thought on the subject of property. Blackstone likely offered the statement as a rhetorical flourish to begin his discussion, given that even in his age, individual property rights were not sole and absolute. Property owners must rely on the enforcement powers of the state, in any event, for the realization of their rights.[3]

Now I agree that the greater context must always be taken into account when chopping a few sentences out of a greater text, so let us do precisely this. Blackstone suggests that property rights are limited “only by the laws of the land”; to ascertain what he meant by this we must read the very next paragraph,

So great moreover is the regard of the law for private property, that it will not authorise the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.[4]

So qualified, we can see that although Blackstone describes property rights as absolute rights of people, it is clear from the context that  by ‘absolute’ he means a right a person has in the state of nature, that is, a right that exists antecedent to any state recognition. He does not mean ‘absolute’ in the sense of never being able to be overridden but likewise he does not have in mind the notion that the passage of any law, no matter its impact on the landowner, is compatible with property rights; what he is getting at is more limited than that.

Blackstone suggests that property rights can be encroached for the public good provided that, public good is understood as “the protection of every individual’s private rights”, “the legislature alone” authorises it by law and the owner is compensated. Elsewhere in the same text he suggests that necessity might be a further option. A person in need “may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor.”[5]

Ed Feser elaborates on the idea of necessity or “absolute distress”,

the starving man in the woods who takes food from a cabin, or a window washer who grabs a flagpole to break his fall from a building, or someone fleeing robbers who can only escape by running through someone else’s back yard. … if some resource (say, the only remaining source of water in an area stricken by drought) became “absolutely necessary … to save the community or part of it from extinction,” then any individual who had heretofore privately owned that resource would have an obligation in justice to relinquish it.”[6]

The author of the Wikipedia quote was not wrong when he or she said that “even in [Blackstone’s] age, individual property rights were not sole and absolute.” It is true that the landowner’s rights were traditionally, at common law, subject to the rights of others. For example, lessees, easement holders, mortgagees held rights in another’s land. Tortious liabilities such as actionable nuisance, the doctrines of support and waste, etc are examples of the ability of others to dictate what a landowner does with his or her land. These restrictions were tied up with fact that every person has the right to enjoy his or her property, hence, the exercise of enjoying one’s property (or exercising one’s property rights) was limited by the degree it prevented another from enjoying theirs.

Blackstone did not consider property rights to simply be legal rights. As I have stated a few times thus far, he grounded the legal right to property in a moral right that exists antecedent to the state,

There is indeed some difference among the writers on natural law concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title;—a dispute that savours too much of nice and scholastic refinement. However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seizing to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. [7]

He appealed to John Locke’s polemic against absolute monarchy, which sets out the locus classicus for the justification of property rights.[8] Locke argued that human beings have a series of rights antecedent to the existence of civil government, that is, they exist whether or not the state acknowledges them. A just state will protect and recognise these rights. One such right is the right to property. Locke argued that people own their own bodies and as such their own labour. When one mixes one’s labour with previously unowned land one acquires a right to this land subject to the proviso that one leaves “enough and as good … for others.”[9]

Feser has argued that Locke’s proviso is mistaken and that an initial acquisition of the sort Locke refers to cannot be unjust.[10] If one mixes one’s labour with and gains ownership of, a parcel of previously unowned land then one acquires a property right to it. This acquisition, in turn, gives one the right to assign it to others. Given this, Locke’s proviso is unnecessary. Assignees of such land acquire the property rights along with the land. Unless another can establish that the initial acquisition was unjust or there has been an unjust transfer at some point in the chain of ownership, the landowner’s property rights must be respected.

Whilst the right may not be absolute, a prima facie property right exists. If one takes possession of previously unoccupied land and mixes one’s labour with it or one obtains ownership of such land via a just transaction then, prima facie, one has rights over this land. The burden then falls on the taker to justify taking,

That we do in fact, in everyday life, put the burden of proof on the denier of claims to property is evidenced by the presumption that exists in law that the possessor of a holding is the rightful owner of it. This reflects our intuitive sense of justice in holdings. It is only (egalitarian) philosophers who—bizarrely—put the burden on the possessor to prove that we shouldn’t expropriate his holdings. Such philosophers are reminiscent of the epistemological skeptic who challenges you to prove you’re not dreaming, or are not a brain in a vat, or whatever—as if it were such strange logical possibilities, rather than the commonsense belief in the external world, that had the presumption in their favor![11]

In Property Rights: Blackstone, Locke and the Legislative Scheme Part II, I turn to the extent of the landowners rights, the relationship of property rights to legislative controls, looking at the CMA, RMA and recent judgments. I critique the notion that property rights remain untouched by these controls by highlighting the shift from posterior to prior restraint, I conclude by placing the argument through the lens of Blackstone’s qualifications on the absolute right to property.

[1] William Blackstone “Of Property, in General” in George Sharswood (ed) Sir William Blackstone, Commentaries on the Laws of England in Four Books (J.B. Lippincott Co, Philadelphia, 1893) Vol 1, Bk 2, Ch 1.
[2] Blackstone “Of The Absolute Rights Of Individuals”, above n 1, Vol 1, Bk 1, Ch 1, s 139.
[3] “Blackstone and Property Jurisprudence” in William Blackstone accessed at 17 February 2010.
[4] Blackstone, above n 1.
[5] Ibid.
[6] Edward Feser “Classical Natural Law Theory, Property Rights, and Taxation” (2010) 27 Social Philosophy and Policy 21-52, 38.
[7] William Blackstone “Chapter 1: Of Property, In General” in Sharswood, above n 6, Vol 1, Bk 2, Ch 1, s 9.
[8] John Locke Two Treatises of Government (1690) Peter Laslett (ed) (Cambridge University Press, Cambridge, 1967), Second Treatise, Ch 5.
[9] Ibid s 27.
[10] Edward Feser “There is no such thing as an Unjust Initial Acquisition” (2005) Social Philosophy and Policy 58-59.
[11] Ibid 11.

RELATED POSTS:
Property Rights: Blackstone, Locke and the Legislative Scheme Part II
Can State Expropriation of Minerals be Justified? Part I

(ii)        Are religious reasons ever subject to open justification?

Gaus might rejoin that commitments to freedom of religion can be defended in terms of open justification. Consider some of the cases that divide society that I listed earlier; at least one side in such debates is mistaken, has made an error in rejecting the purported open justification presented to them. This is entirely possible. It could also be true of Qutb; perhaps he mistakenly rejected a premise that, given other things he believes, he should have embraced.

While this rejoinder would avoid the thinness objection, the problem is that it would no longer be clear or obvious, in the absence of substantive argument, that any viewpoint could be openly justified. Neither side in the above debates is likely to concede its position as the one in error. Cuneo and Eberle note the problem;[66]

Were we to ask Qutb whether he would have reasons to support laws that protect a robust right to religious freedom if he were adequately informed and reasonable, surely he would say: no. Moreover, he would claim that his compatriots would reject the liberal protection of such a right if they were adequately informed about the divine authorship of the Quran and the proper rules of its interpretation. While Qutb’s say-so doesn’t settle the issue of who would believe what in improved conditions, liberal critics maintain that his response indicates just how complicated the issue under consideration is. Among other things, to establish that Qutb is wrong it seems that one would have to deny the truth of various theological claims on which Qutb relies when he determines that he would reject the right to religious freedom were he adequately informed and reasonable. That would require advocates of the standard view to take a stand on contested religious issues. However, liberal critics point out that defenders of the standard view have been wary of explicitly denying the truth of religious claims, especially those found within the major theistic religions.

Gaus’ case for open justification can only succeed if one makes certain assumptions as to the merits of substantive contentions about morality, philosophy of religion, the truth or falsity of various religious doctrines and questions of meta-ethics. However, such contentions are controversial.

An additional problem is that open justification commits one to the DRR only if one assumes that religious reasons can never be openly justified. Recall that Audi’s definition of a religious reason is one that possesses “normative force, that is, its status as a prima facie justificatory element, does not (evidentially) depend on the existence of God.” This suggests that proponents of the DRR must assume that belief in God cannot ever be openly justified. I would dispute this.

Philosophers and theologians have offered arguments for God’s existence entailing that the beliefs most rational people already accept commit them to theism.  Richard Swinburne has written several works arguing that Christianity is more probable than not on the public evidence than any alternative.[67] Robert Adams has argued that the best account of moral obligation is such that they are the commands of a loving God.[68] Alvin Plantinga sketched 26 arguments for God’s existence, which are currently being defended in the literature.[69] Blackwell recently published an encyclopaedia containing 11 current arguments used to defend the existence of God.[70] Edward Feser agrees,[71]

Versions of these arguments were defended by the likes of Plato, Aristotle, Augustine, Aquinas, Duns Scotus, Descartes, Leibniz, Locke, and Newton, and their defense had absolutely nothing to do with ignorance of modern science — indeed, some of these thinkers were among the founders of modern science — because the arguments do not ultimately stand or fall with any scientific results in the first place. … Among the contemporary defenders of the arguments are writers like Alvin Plantinga, Richard Swinburne, John J. Haldane, James F. Ross, Richard Taylor, William Lane Craig, David S. Oderberg, David Braine, Barry Miller, Robert Koons, Charles Taliaferro and many others — analytic philosophers highly respected within the field and applying the most rigorous methods of analysis and argumentation. … anyone familiar with the classical and contemporary literature on philosophical theology [cannot] deny that the arguments for the theistic worldview mentioned above are every bit as defensible today as any other philosophical argument.

Just as there are numerous secular arguments, each defended by intelligent and capable scholars, held to be sound by their proponents even if rejected by their opponents, so too are there arguments for the existence of God that meet these criteria. In light of this it seems arbitrary to simply assume that religious arguments cannot meet the standard of public justification. Critics can argue the merits of these arguments and claim that only secular arguments can succeed but this will not give proponents of religious reasons a real reason for accepting such claims. Religious believers hold quite different assessments on the cogency of these arguments. Therefore, the demand of open justification does not appear to be a sufficient reason for the restriction of religious reasons but not others.

(iii)       Are secular reasons for coercive laws subject to open justification?
Gaus contends that religious reasons cannot be openly justified and that secular beliefs can. Many thinkers have argued that secular perspectives cannot justify the core commitments of a liberal democracy. Nihilist thinkers have argued that secular naturalistic views of the world entail that all moral claims are false.[72] Stephen Layman[73] and George Mavrodes[74] have argued that a secular view renders belief in morality irrational. Using a Kantian line, John Hare has argued that atheism makes the moral life rationally unstable.[75] Mark De Linville argues that atheism, when combined with evolutionary theory, provides good reason for thinking our moral beliefs are unreliable.[76] Alvin Plantinga has articulated the case for the conclusion that evolution, when combined with atheism, provides a reason for being sceptical about everything we believe (public policy would be no exception).[77] Michael Perry and Wolterstorff claim that human beings possessing inherent rights (a fundamental commitment of liberal democracy) cannot be adequately defended on secular grounds and is only defensible if one assumes religious doctrines.[78]

As with many secular arguments, religious justifications for coercive policies have been advocated by intelligent and capable scholars, held to be sound by their proponents even if they are rejected by their opponents. It would be arbitrary to simply assume that secular arguments meet the criteria of open justification and that religious ones do not.  Cuneo and Eberle note the problem;[79]

Liberal critics maintain that we are simply not in good epistemic position to judge the reasons an agent would have to support laws that protect basic liberal commitments were he better informed and more reasonable. More exactly, liberal critics maintain that we are not in a good epistemic position to determine whether a secular agent who is reasonable and better informed would endorse or reject the type of theistic commitments that philosophers such as Wolterstorff claim justify the ascription of natural human rights. The problem is that we don’t really have any idea how radically a person would change his views were he to occupy these conditions. The main, and still unresolved, question for this version of the standard view, then, is whether there is some coherent and non-arbitrary construal of the relevant counterfactual conditions that is strong enough to prohibit exclusive reliance on religious reasons but weak enough to allow for the justification of basic liberal commitments.

Given the divide between intelligent and capable people over various arguments for and against particular coercive policies it is not prima facie evident that any of these arguments can meet the standard of open justification. Moreover, if an argument could, there appears to be no reason to assume that it could not be a religious one. Now Gaus could examine all currently unsettled policy disputes in society and defend the ones he agrees with and attack the others but the inevitable result will be that many who do not share Gaus’ position will likely be unconvinced. If this is the outcome, there seems no reason why those who do not agree should accept the DRR.

Feser suggests that this arbitrary singling-out of religious reasons for restraint with little or no basis seems to be based more on ignorance and bigotry than reason,[80]

The problem, in the view of many liberals, is that religious considerations are matters of faith, where “faith” connotes in their minds a kind of groundless commitment, a will to believe that for which there is no objective evidence. Opinions on matters of public policy, they would say, can only appropriately be arrived at via methods of argument assessable by all members of the political community, not by reference to the idiosyncratic and subjective feelings of a minority.

If religious arguments were in general really like this, then I would agree with the liberal that they ought to be kept out of the public square. But in fact this liberal depiction of religion is a ludicrous caricature, and manifests just the sort of ignorance and bigotry of which liberals frequently accuse others.

Jeremy Waldron makes a similar point,[81]

Secular theorists often assume that they know what a religious argument is like: they present it as a crude prescription from God, backed up with threat of hellfire, derived from general or particular revelation, and they contrast it with the elegant complexity of a philosophical argument by Rawls (say) or Dworkin. With this image in mind, they think it obvious that religious argument should be excluded from public life, … But those who have bothered to make themselves familiar with existing religious-based arguments in modern political theory know that this is mostly a travesty;

A common theme in the arguments from respect, despite both possessing the features considered relevant, is the asymmetry between religious reasons and secular reasons. On the golden rule argument, Audi privileges secular reasons over religious reasons even though secular reasons were potentially subject to the same charges of being false and burdensome. Similarly with the argument from epistemic inaccessibility, reasonable people are able to reject both secular and religious reasons in a pluralistic society yet Audi and Rawls use this fact to exclude the latter and not the former. Likewise, with open justification, prima facie, there is no reason to accept that religious beliefs cannot be openly justified whilst secular beliefs can. Nor is there a prima facie reason for assuming that liberal commitments can be openly justified on secular grounds. In both cases intelligent and capable scholars have advanced arguments from premises which they believe others are committed to holding. Further in both cases the cogency of these arguments can be reasonably disputed.

In my next post, Religious Restraint and Public Policy: Part VI, I will look at the dangers of religion as a justification for its asymmetrical treatment within the DRR and conclude my argument.

[66] Christopher J. Eberle and Terence Cuneo “Religion and Political Theory” (2008) Stanford Encyclopedia of Philosophy (at 9 August 2009).
[67] Richard Swinburne The Coherence of Theism (Clarendon Press, Oxford, 1977); The Existence of God (Clarendon Press, Oxford, 1979); Faith and Reason (Clarendon Press, Oxford, 2005); Responsibility and Atonement (Clarendon Press, Oxford, 1989); Revelation (Clarendon Press, Oxford, 2007); The Christian God (Clarendon Press, Oxford, 1994); Providence and The Problem of Evil (Clarendon Press, Oxford, 1998).
[68] Robert Adams Finite and Infinite Goods (Oxford University Press, New York, 1999); “Divine Command Meta-Ethics Modified Again” (1979) 7:1 Journal of Religious Ethics 66; “Moral Arguments for Theistic Belief” in Robert Adams (ed) The Virtue of Faith and Other Essays in Philosophical Theology (Oxford University Press, New York, 1987) 144; “Divine Commands and the Social Nature of Obligation” (1987) 4 Faith and Philosophy 262.
[69] Alvin Plantinga “Appendix: Two Dozen (or so) Theistic Arguments” in Deane-Peter Baker (ed) Alvin Plantinga
[70] JP Moreland and William Lane Craig Blackwell Companion to Natural Theology (Blackwell Publishing, Malden MA, 2009).
[71] Edward Feser “How to Mix Religion and Politics” (20056) TCSDaily (at 6 October 2009).
[72] Prominent examples are: JL Mackie Ethics: Inventing Right and Wrong (Penguin, Harmondsworth, 1977); Michael Ruse “Evolutionary Theory and Christian Ethics” in Michael Ruse (eds) The Darwinian Paradigm (Routledge, London, 1989) 251-273.
[73] C Stephen Layman “God and the Moral Order” (2002) 19:3 Faith and Philosophy 304; “God and the Moral Order: Replies and Objections” (2006) 32:2 Faith and Philosophy 209.
[74] George Mavrodes “Religion and the Queerness of Morality” in Robert Audi and William Wrainwright (eds) Rationality, Religious Belief and Moral Commitment (Cornell University Press, Ithaca, 1986) 213-226.
[75] John Hare The Moral Gap (Clarendon Press, Oxford, 1996); “Naturalism and Morality” in JP Moreland and William Lane Craig (eds) Naturalism: A Critical Appraisal (Routledge, London, 2000) 189-211; “Kant and the Rational Instability of Atheism” in Andrew Dole and Andrew Chignell (eds) The Ethics of Belief (Cambridge University Press, Cambridge, 2005).
[76] Mark D Linville “The Moral Argument” in JP Moreland and William Lane Craig (eds) Blackwell Companion to Natural Theology (Blackwell Publishing, Malden MA, 2009) 391 449.
[77] Alvin Plantinga Warrant and Proper Function (Oxford University, New York, 1993) 216-239; “The Evolutionary Argument against Naturalism” and “Replies to Beilby and his Cohorts” in James K Beilby (ed) Naturalism Defeated? Essays on Plantinga’s Evolutionary Argument Against Naturalism (Cornell University Press, New York, 2002) 1-15 & 204-277; “Naturalism vs Evolution: A Religion Science Conflict” in Paul Draper (ed) God or Blind Nature? Philosophers Debate the Evidence (at 3 September 2009).
[78] Nicholas Wolterstorff Justice Rights and Wrongs (Princeton University Press, Princeton NJ, 2008); Michael Perry Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge University Press, Cambridge, 2006).
[79] Eberle and Cuneo, above n 65.
[80] Feser, above n 71.
[81] Jeremy Waldron God, Locke, and Equality: Christian Foundations of John Locke’s Political Thought (Cambridge University Press, Cambridge, 2002) 20. Gaus appears to agree; in his book review of Eberle’s work on the subject he writes, “At the outset, however, let me stress that Eberle has written a very good book indeed. It is manifest that he has thought much harder and deeper about justificatory liberalism than justificatory liberals have thought about religious justification and belief. His analysis of religious epistemology and mysticism (ch. clearly demonstrates the extent to which many liberals have attacked caricatures of religious justification. After Eberle’s book, secular liberals must be much more careful in their claims about religious beliefs and their justifications.” Gerald Gaus “Religious Convictions in Liberal Politics” (2003) Notre Dame Philosophical Reviews (at 13 September 2009) (book review). (Cambridge University Press, New York, 2007) 203-229.

RELATED POSTS:
Religious Restraint and Public Policy: Part I
Religious Restraint and Public Policy: Part II
Religious Restraint and Public Policy: Part III
Religious Restraint and Public Policy: Part IV
Religious Restraint and Public Policy: Part VI