4.3 The power to license and to give property away

the right to immediate, exclusive possession has a ‘gate’. We share property, for obvious reasons, and the most extensive ‘licence to share’ is the power to give, for only by having the power to give may I have the power to serve my interests in a thing where my interest lies in someone else’s flourishing (my interest in their best interests).

4.4 The power to sell or transfer pursuant to an agreement

The question here is whether the appreciation of the interests of others, which I take to be necessary for the formation of agreements, as reasons that can be exclusionary reasons for oneself, is available in the absence of conventions for individuals to be able to enter binding agreements.

Elsewhere40 I have described bargain agreements as agreements between strangers, which I explained to be cases where the parties did not share interests in each other’s welfare or in some shared joint project (though I did question, given that there are all sorts of contracts where this is not the case, such as contracts of employment, long-term supply contracts, and relational contracts of various kinds, whether the bargain between strangers should be the paradigm it seems to be in contract law theory).41 Nor in the case of bargains are parties usually in a position to help shape or reveal the interests of the other (the patter of certain sales people notwithstanding). Nevertheless, it would be a mistake to characterize bargains purely in terms of self-interest, narrowly conceived:42

It is often assumed that in a true bargain, one is supposed to disregard the interests of the other party, paying attention only to one’s own. As a practical matter, in the limiting case of some simple transaction, such as the purchase of an umbrella, the interests of the other party hardly rise to consciousness; one simply goes through with the transaction. But generally, not only is this a poor bargaining strategy, it involves a misconception of the relationship bargainers have to each other’s interests. In a bargain, parties do serve the interests of another, by acting in accordance with the normative character of the transaction (e.g. selling only what one has title or power to sell) or by performing executory undertakings. Each party therefore must ‘take on board’ the interests of the other—as defined by the agreement—by treating the agreement as an exclusionary reason guiding his or her behaviour. The value of bargains, indeed their nobility, is that this relationship of obligation and trust permits strangers voluntarily to treat the interests of each other as reasons guiding their behaviour.

Given the possibility of interactions between strangers, is the absence of conventions for agreeing fatal to their ability to enter into binding agreements because they cannot give the necessary commitments?

Consider Scanlon’s example43 of two hunters in a state of nature. They are on facing river banks, and one has thrown his spear to the opposite bank, the other his boomerang. Can they cooperate, promise each other, agree to return their weapons to each other? I want first to say that I am a little put off by the set-up to this story.

Why not start (surely more plausibly) with the case where A, standing on his side of the river with his spear, sees B’s boomerang sail over the river and land on his side. Now B appears, seeking his boomerang. It seems obvious to me that what A should and would do is just toss it back to him. Humans are responsive to reasons, and this includes the interests which others have.44 Whilst on occasion one might have reasons for not doing this (B is a warrior intent on harming A, A simply hasn’t the time, etc.), it is implausible that A would, as a constitutive matter of his strangerhood vis-à-vis B, be unable to appreciate the interest of B, and thus not be able to take it on board as a reason for his action. Similarly, A would be able to realize his mistake if, after throwing it over to B, a third hunter, C, turned up beside him and jumped up and down, mimicking that he had thrown it, and thus that it was his (at which stage A sheepishly recalls that a boomerang tends to return in an arc). None of this requires any convention.

Now, consider another case. Child minder A is walking along the river past B, a stranger, when A’s child falls into the water. If hunters can appreciate the interests that strange hunters have in their weapons, then I take it that B, a human, can recognize another human’s interest in retrieving his child, stranger or not. Now let us assume that the only way A can retrieve the child is with the cooperation of B; say A needs B to hold onto a branch on the river bank and hold his hand out to A so he can reach the child. I don’t see how we could doubt the possibility of this cooperation taking place. It seems like the most natural thing in the world, this cooperation forced by circumstances. Assuming that it is not perverse for B to consider the interests of the child and A as sufficiently motivating B to act the way he does, what motivation is there for denying B the facility of assuring A that he can trust him? If there is such a facility we can easily account for the intuition that B would do wrong if, just when A was about to reach the child, B wrested his hand from A’s grasp, sending A into the river himself. In keeping with the preceding reliance upon the human responsiveness to reasons, it is just implausible to deny that we have an ability to respond to those reasons such that we could act in a coordinated fashion, in concert as it were.

If this is right, then cooperative activity in which people can be assured that others will play their part is no mystery, since it only turns on being responsive to reasons concerning the interests of others and their purposive activities that may be significant enough to serve as exclusionary reasons. The most obvious applications of such responsiveness to reasons generating the norms of cooperative activity is a division of labour and the trading of property. The fact that the division of labour is all too readily instantiated by conventional relations of status and domination does not undermine this—consider all the task-specific coordinations of behaviour that no conventional division of labour could possibly provide for.45 As for the trading

44I am assuming there is no obvious hostile intent in this situation, but Scanlon assumes this as well.

45The fact that in a particular society women are the gatherers and men the hunters does not mean that within those broad divisions, women will not need to coordinate their gathering behaviour through agreements amongst themselves, and the same goes for the male hunters; furthermore, the gatherers and hunters as groups are likely to have to enter into task-specific coordination agreements.

of property, the power to enter into an agreement under which one transfers one’s property to another, again the rationale in terms of fulfilling our interests is obvious. At its most basic level the trade of goods is simply the reification of the division of labour, turning it into the exchange of things. Marx made us see that this can have very deleterious ideological consequences, but the point here is that if any sort of division of labour that operates by way of agreement makes sense in the absence of convention, it is difficult to see how one could draw a line between that and the agreement to exchange goods, insisting the latter to depend upon conventions. So, on the basis of these considerations, it would seem that the power to exchange goods, a ‘power to sell’, is just as natural and not reliant upon convention as any of the other norms of ownership we have looked at.

4.5 The liability to execution

I only want to say a little here. When I speak of the liability to execution I do not mean to conjure up the idea of statutory insolvency regimes. The idea is that, on the basis, again, of simple human responsiveness to reasons, we can appreciate that we might come under obligations to dispose of our property that arise ‘by operation of morality’. I am, of course, transposing the notion ‘by operation of law’ to morality, but that is perfectly licit, since all I am claiming is that we might come under moral obligations that arise, not because of the exercise of any normative power (such as the power to undertake obligations voluntarily), but because of various events that might occur. The obvious case is that of my wrongfully injuring another. This may give rise to any number of obligations on my part—to apologize, to help you overcome the injury, and so on—but take the simplest case of my wrongfully, say negligently, injuring some of your goods; say I eat your pineapple, mistaking it for my own. The most obvious remedial response here would be for me to give you my pineapple, the one I thought I was eating. More generally, I might have more abstract duties to compensate you in some way, and the best way of doing so might be by transferring you some of my property. Again, no conventions are necessary for me to respond to your interest in having the loss I caused you remedied by doing what I can to mitigate that loss, and that may involve requiring me to transfer my property to you in some cases. Indeed, all of us in the vicinity may come under a duty to transfer property to you where your interests are severely affected, even if not caused by any wrong committed by anyone. If your larder is swept away by a tornado outside the hunting and gathering season, the only reasonable and rational response to the reasons in play may be that we all fall under an exclusionary reason to contribute some of our stored food.

There is a sense, therefore, in which everyone is personally interested in the ‘wherewithal’ of others, all the economic assets at their disposal. This is broader than one’s property, of course, for remedial assistance can also be rendered by human action, but it certainly includes the property one owns.