The Holmes opinion is a famous one, on whether a newspaper has a property right in the news it creates and can sue another newspaper that reprints it a few hours later. That is a case at the boundaries of our definitions of property, which is what occasions Holmes's statement. The idea is that our legal system has carefully defined what "property" is in the sense of what a person can go to court for and exclude other people from using. Without any courts, there would indeed be no "property" of this kind.
"Property, a creation of law, does not arise from value, although exchangeable -- a matter of fact." That's from Holmes' 1918 opinion in INS v. AP. ...
What Holmes is saying here is that even though property is exchangeable, it doesn't arise from value; it's a creation of law. And that's simply a matter of fact. With these sixteen words, Holmes captured much of the legal realist critique of laissez-faire -- and a key part of legal thinking between 1890 and 1930. A system of free markets isn't law-free; it depends on law. Property rights, as we enjoy and live them, are a creation of law; they don't predate law.
To understand this, think of murder in the same way. "Murder is a creation of the law; it doesn't predate law." This is true in the sense that without courts, there is no way anyone will be charged and punished for killing someone else. The legal system has carefully defined "murder" over the years, and since we do have courts, there are some killings for which you can be punished, and others for which you cannot. There still exist boundary cases which are difficult-- the different degrees of assistance to suicide, for example.
What Professor Sunstein and his school do is to slide from "property" and "murder" as terms of art to their everyday meanings. The everyday meanings do predate law. Even without courts, people have a pretty good idea of what property and murder are. The meanings even coincide with the legal meanings in 99% of situations in daily life. In the other 1%, the everyday meaning is too vague, and people scratch their heads: "Does a newspaper really have property to its news?" "Is an MP3 on the web the property of the media company?" "Does my property include the right to an unobstructed view?" Law professors, naturally, spend 99% of their time on the 1% of cases that are difficult, since it would be pointless to spend time explaining to students that if they deliberately cut my throat and abscond with my wallet they have committed murder and stolen my property.
The rhetorical slide is useful for liberals, because it is their answer to the classic conservative line, "The government thinks it owns all your income, and it is being nice to let you keep some of it. But really, of course, it is your money, not the government's, and you shouldn't be humbly grateful that the tax rate is just 30%." The liberal response is "You wouldn't have any property at all without government. So the government has every right to divvy up society's resources, and you have no right to income just because you `earned' it. We need to start from scratch, with all the income in a common pool, and decide, unselfishly, how we should spend it for the good of all of us."
What is wrong with the liberal position is that without government property and income would still exist; there just would be a different threat to it. Currently, the biggest threat to my wealth is from the government, which with overwhelming force takes 30% or so of it each year. Without government, the biggest threat would be from my fellow citizens. They probably wouldn't steal 30% of it, but I'd have to spend 10% or so of it on bribes and weapons to fend them off. Everybody, in this state of nature, would still recognize that what I produced was my property; they just would want to transform it into *their* property by stealing it.
We even see property existing in the animal world. Many animals are territorial, and consider territory, food, and females as their property. Every squirrel is quite aware that a given nut tree is some squirrel's property (unless the owner has died or moved). That doesn't mean a squirrel wouldn't fight to dispossess the old owner if he could get away with it at low enough cost, but it does mean that he understands what property is. Even without courts.
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