Property rights, social norms and the law: A natural law theory of property

The problem area of distributive justice includes at its core questions about what ought to be owned, how it can be owned and who ought to own it. A fundamental assumption behind recent attempts to address these questions is that the power to shape the property institutions of a society lies entirely in that society's laws. This view, I argue, is mistaken. In this dissertation I provide an account of how property institutions are related to other social practices in a society. A consequence of this account is that property law does not solely determine what property looks like in a society.; The analysis begins with the observation of Enlightenment-era natural rights theorists that property is, first and foremost, a conventional social norm. I then turn to modern developments in game theory and social psychology to propose a novel account of how conventional social norms guide agents. On this account, a norm guides an agent by influencing their practical reasoning in one of two ways: either rationally, by generating a belief that behavior in those circumstances is required by that norm, or sub-rationally, by structuring the agent's practical reasoning, without the agent being aware of it, in such a way that ensures the formation of intentions to act in a manner required by the norm. This second form of norm guidance, which I call 'passive norm guidance', provides grounds for the claim that property norms can exist and function independently of recognition by the law. I go on to show how the independent existence of property norms can support a robust natural law account of property rights according to which property rights exist independent of recognition by the law. The dissertation ends by show how this account, while radical, is also consistent with the dominant Twentieth Century analytic jurisprudence accounts of property.