Sagoff8-9

Chapter 8: Property and the Value of Land

Chapter is to answer these questions:

To what extent is the value of land reflected in the price of property? (Very little)
Will markets in which consenting adults freely exchange property allocate land to its most beneficial uses? (No, not if any substantive concept of "beneficial" is used.)
In what does the most beneficial use of a parcel of land consist? (Can be decided only on a case-by-case basis)
How is this use related to the ways land can be developed or exploited most profitably? (Moral goals may be subject to economic limitations.)

LOCKE ON PROPERTY

The Lockean theory of property is based on two principles (175, 186-7):

1 "an individual has a ‘natural’ right to enjoy his property as he wishes, to sell or not to sell it, as long as he respects the same right of others similarly to enjoy their property without intrusion or invasion."

2 "property rights should flow to those who are willing to pay the most for them (and this results in the most beneficial use of resources)"

These two principles are in confict as is shown by the following:

Example: a dusty,noisy cement plant locates near farms, making them unliveable an unfarmable.

According to principle 1, the court should grant an injunction to shut the plant down

According to principle 2, the court should allow the pollution and merely compensate

Principle 1 favors Pareto criterion of transfer (some improve, no one worse off; corresponds to pure libertarian righs-based theory)

Principle 2 favors Kaldor-Hicks criterion (maximize utility; potential compensation, hypothetical consent; corresponds to pure utilitarianism)

Both principles are extreme:

Principle 1 gives anyone who is harmed veto power over a project and would stop the economy (187).

Principle 2 would in effect eliminate property rights altogether (187) because anyone who could afford to pay (whether they actually pay or not) could take or damage my property—and is also incoherent (192):

1 There are no property rights without legal institutions.

2 These institutions cannot be judged against the allocation of property rights that would have no status or worth apart from them.

So 3 "The Lockean principle that property rights are there,

already defined, for law to help allocate in efficient and

equitable ways" is incoherent. (1,2)

4 The thesis that public law should allocate property rights efficiently assumes this Lockean principle. [This is not at all clear.]

So 5 The thesis that public law should allocate property rights

efficiently is incoherent. (3,4; see also 181)

Statutory law (in the form of zoning ordinances, pollution laws, etc.) provides a middle path (178)

Such statutes "attempt to protect personal freedoms and rights while maintaining at the same time the viability of the economy" (179)

Note how Sierra Club an Audubon sell out to the mall and how consumer Sagoff chides his boycotting friend to go to the mall. (171, 194).

Comment 1: This halfway stuff will lose the war.

Comment 2: What is a virtuous person on Sagoff’s view?

Chapter 9: Reason and Rationality in Environmental Law

Purpose of the chapter is announced on pp. 196 and 200. Read 200.

Sagoff, like a good liberal, wants to compromise between two extremes: regulation that ingores economic constraints (which is unrealistic and pits environmentalists against regulators) and pure cost-benefit analysis based on willingness to pay (211-213)

Environmentalists are willing to compromise on the timetable for pollution elimination but not on the goal; Sagoff advocates compromise on both. (199)

Sagoff’s "framework" is stated on 212-13, also 220.

This is a prgamatist solution, based on an epistemic-virtues account of rationality.