This Land Is Your Land. Or Is It?

Route 205 between Burns, Oregon and the Malheur National Wildlife Refuge. Credit Jarod Opperman for The New York Times

By Justin P. McBrayer, NYT
January 5, 2016 8:35 pm

Since last weekend, armed men have been in control of the Malheur National Wildlife Refuge in Oregon. Incensed by the sentencing of local ranchers to jail time for burning public lands, the protesters want the federal government out of the land business. Their stated goal is to return the refuge to the locals so that “people can reclaim their resources.” But this raises an important question: Why does justice demand that the land and resources belong to the locals instead of the commons? What makes property private?

Despite its appeal to conservatives, the idea that history alone explains private property is hard to justify.

This is not a question germane only to a standoff in Oregon. It’s a question that applies to each and every one of us. If you’re reading this, you probably own a smartphone. You think you justly own your phone and that it’s wrong for the government or anyone else to take it from you. But why is your phone your private property? You might say that you are entitled to it because the law says that you are entitled to it. But that’s a bad answer.

There are lots of cases where legal ownership and just ownership come apart. You know full well that slave ownership was once legal, but you probably don’t think it was just. And if the law changed tomorrow to outlaw smartphones, you probably don’t think that your entitlement to your phone would vanish. You’d think the government had made a mistake and that it would be O.K. to resist. So what explains why some property is your private property?

An idea common among conservatives — and surely an assumption of the protesters in Oregon — is that the past fully explains private property. For example, perhaps you paid for your phone or were given it as a gift. That’s why you are entitled to it. So in general we might say that if you paid for something or were given something, then you are entitled to it.

(More here.)