Natural Property Rights: An Introduction

ABSTRACT:

This Article introduces a symposium hosted by the Texas A&M University Journal of Property Law. The symposium is on a forthcoming book, Natural Property Rights, by the Article’s author. Natural Property Rights 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 dispute at issue in Campo v. United States, now pending in federal court. In Campo, a class of oyster producers are suing the United States for inverse condemnation. The class plaintiffs seek $1.6 billion in just compensation for the U.S. Army Corps of Engineers’ having (allegedly) killed oysters they were raising when it diverted water from the Mississippi River through a spillway into the Gulf Coast.

The Campo case repays study for two reasons. Labor and natural rights are already at play in the Campo litigation. The U.S. government moved to dismiss the plaintiffs’ claims to property in oysters, and when the presiding judge denied that motion he relied in part on natural rights and the labor theory John Locke introduced in his Second Treatise of Government. Separately, the underlying dispute fairly tests any general theory of property. The dispute raises questions about: whether oysters should be private property; whether coastal water bottoms should be open for private appropriation or kept as public commonses; how property in oysters and water bottoms should be reconciled with public interests in shoreline protection; why have an institution like eminent domain; and how nuisance principles should apply to a government-sponsored water diversion into coastal waters. If a theory of property can shed helpful light on all of those issues, it applies broadly enough to constitute a general theory of property, and the theory introduced in this Article satisfies that standard. Along the way, this Article also shows how a labor- and rights-based property theory differs from justifications for property and regulation influential in contemporary law, policy, and scholarship.