The new leader of the Conservative Party of Canada has taken the position that property rights should be enshrined in the Canadian Charter of Rights and Freedoms. I'd like to take a moment to explain why that's actually not such a great idea. I’ll start by talking about a problem I struggled with many years ago, designing a rules system for a live roleplaying game.
In most any roleplaying game, there’s a fictional world in which the player’s characters live and operate, and that world usually includes physical artifacts like weapons, tools, money and so on, many of which can change hands during the course of the game. In a live action roleplaying game, where players wear costumes and move around in an actual physical site, these items are represented by actual physical props or tokens.
But here’s the problem: those actual physical props often belong to individual players, and while a player may be obliged under the game rules to let an opponent take the imaginary game world item the prop represents, the prop itself may be something they’re unwilling to part with.
Now, there are a number of ways to get around this, and in practice it’s not usually a huge problem because the players usually understand from the outset what’s involved in playing the game. But I was still interested in structuring the game rules so that they’d mesh with the laws of the real world.
The solution I adopted was to issue paper chits to represent (and to document the in-game effect of) every game item for which these issues might arise, and to constitute all of these chits as the legal property of the game organizers, not the players who may happen to be in possession of them. The players would be permitted to carry and use the game items, subject to the rules imposed by the game organizers. You could use your own costume or prop items for roleplaying purposes, and players often would tape these chits to their prop weapons to make brandishing them more dramatically satisfying, but as far as the game itself was concerned, the chit was the item; the player’s real-world property was merely a visualization aid.
So, within the game world, there was an emergent economy. Some players might have skills or abilities that they used to collect various natural resources (represented by chits) that other players might process into various other goods (also represented by chits) that might be traded to other players, and so on. And within that context, it would be completely appropriate for your character to speak of the chit in your hand as your sword, your own rightful property that it would be immoral and illegal to steal from you, while in the ‘real world’ the chit was legally the property of the game organizers, whose property rights would be violated if you failed to deal with it in accordance with the rules they’d specified. You’d be cheating (and breaching a real-world contract) if you failed to turn it over to a player whose character had satisfied the game rule requirements to take it from you by game-force.
Consider, then, what happened here. The goal of the game organizers is to create a playable game world in which people can pursue various objectives, interact in a variety of ways, and exchange various items in ways that advance the storytelling objectives of the game organizers. And so rules were created governing how the game resources, i.e. the items, would change hands within the game world. The question of which character owns any given item is answered with reference to those game rules: did the character obtain possession of it in accordance with the rules of the game? Ownership is not a fundamental fact-about-the-world that precedes the rules; it is a consequence of applying those rules.
And those rules can change from time to time, as the rulemakers recognize some inadequacy or injustice that needs to be fixed. Sometimes that means a player is going to be disappointed, say, when an overpowered magic sword gets nerfed, and players do sometimes complain bitterly when something like that happens. Changing the rules in any way introduces disruptions and continuity issues, and is generally to be avoided, but players have no particular right to be insulated against changes to the game rules.
I want to argue that this is almost exactly analogous to the property rights we enjoy in the ‘real’ world. We have, as a society, developed elaborate rules to facilitate the distribution of goods and services in a free and democratic society, and these rules involve a concept we call “ownership”. It’s a pretty good system, overall, though it does lead to some injustices and might need some tweaking now and then. Intellectual property is an example of such a tweak, intended to allow creators of ideas (which, once created, are no longer subject to rules of scarcity) to participate in an economy where the food, clothing and shelter they need are in exhaustible supply.
So this is what I mean when I say that property rights are not fundamental. They’re not the basic rights upon which the entire legal system is built, but rather consequences of that legal system. You claim to own a parcel of land? Okay, we can apply the rules and test that claim (checking the registry at the Land Titles Office), and if you think there’s a mistake you can argue for a judge to issue an order registering what it ought to be. Your right to a fair procedure in answering the question is fundamental to our entire system; your right to a particular outcome of that procedure is not.
That is why I argue that property rights should not be enshrined explicitly in the Charter. We may decide, as happens from time to time, that there’s a flaw in our property system, and when that happens we can and should be able to fix it. That someone ends up less well-off does not necessarily mean that they have suffered an injustice, and to see this most clearly one need only consider the example of chattel slavery. At one time, the law recognized property rights in human beings: some people were owned by other people. Eventually that came to be recognized as just plain wrong, and the law had to change.
Did that change violate the property rights of the former slave holders? Did they lose something for which they ought justly to be compensated? Or did we just come to recognize that we were all wrong about what property rights they actually held, and they were never truly entitled to it? People don’t have a right to be compensated for taking away something they should never have had in the first place.
Slavery may be an extreme example, but it illustrates clearly that even legally recognized official title to something (or someone) may turn out to be a gross injustice to be remedied. Society needs to be able to adjust the rules of property from time to time, and it will not always be the case that a right that’s taken away needs to be compensated in some way.
To put it another way, our economy is in some sense a game, and when we adjust the rules to make the game better, we have no obligation to preserve the advantages enjoyed by the people who have been winning under earlier versions of the rules.