著者

服部 高宏

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.113-123, 2006-10-30 (Released:2010-02-15)

著者

八島 隆之

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.125-134,196, 2006-10-30 (Released:2010-02-15)

参考文献数

23

---

The purpose of this paper is to offer a tentative plan on systems logically consistent with libertarianism that respects personal freedoms. The arguments start from proving the following thesis. Specifically, in terms of libertarianism, a deceased individual's assets become unowned property in a purely theoretical sense, and therefore, inheritance institutions are denied without contradicting the right of private property. Consequently, problems about the lives of the bereaved arise from this thesis. In this paper, three systems that satisfy both avoidance of the bereaved problems and the position of the above-mentioned purely theoretical libertarianism are drawn. First, in the case of denying inheritance institutions, how to manage the lives of the bereaved becomes a problem if the household economy has depended on the deceased. In order to solve this problem, necessity of “the state debt system” for the bereaved to buy the deceased's assets is pointed out. Second, because the time of death between a husband and a wife usually differs, special consideration is needed with regard to the spouse who is one of the bereaved. Therefore, by thinking of family institutions based on a legal system using the analogy of general partner-ships, “a married couple organization theory” is developed. In this theory, the income of the couple who have chosen legal marriage automatically belongs to the income earner and his/her spouse at a rate of one-to-one. Third, in the case of children, even if we accept the thesis of self-ownership, children cannot usually work. Thus, children may be deprived of various freedoms. In order to solve this problem, necessity of “the independence reserve system” by which a state sets aside a constant sum from individuals' births to a certain time and pays it at the term end is proposed.

著者

伊藤 泰

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.163-171,199, 2005-09-30 (Released:2008-11-17)

参考文献数

7

---

The two concepts of “right” and “good” have an important role in the theories of justice, including Rawls's liberal theory and the theories of his opponents such as libertarians and perfectionists. Even though they have different standpoints these scholars treat the two concepts similarly; in their arguments they unanimously presuppose the sole idea of “right”. They argue namely that though their concept of “good” they pursue are different from each other, all citizens in a society would accept the same “right” as the basic condition of their coexistence. Based upon this presumption, these scholars search the idea of “right” through theoretical or historical reflection. Recently, however, scholars such as Chantal Mouffe, James Bohman and Jeremy Waldron have different arguments: they argue that it is impossible for the citizens to come up with the same idea of “right”, as there are a number of “right” competing against each other, just like there are various kinds of “good”. According to these scholars, in order to avoid a totalitarian simplification, the modern democratic society should not deny this pluralistic structure. This paper examines the latter theory focusing on its implication to the theory of justice. The following two points are stressed among others: first, this theory will help our understanding of the pluralistic character of “right” in a democratic society, and second, this theory will offer us a new perspective for handling the problems such as (a) the neutrality of the state, and (b) the priority between “good” and “right”.

著者

松沢 俊樹

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.172-180,199, 2005-09-30 (Released:2008-11-17)

参考文献数

16

---

I've been discontented with the absence of the theory of international justice, both in the theory of justice and in International Relations. “The Law of Peoples”, J. Rawls'theory of international justice, is his third main work, and I think that it's useful to inquire his theory for constructing the theory of international justice. Therefore, in this paper, I try to examine his theory. In the first chapter, I explicate the basic structure of Rawls' theory. His theory is an answer to one of four problems, and the principles of international justice are worked out by the extension of political liberalism. To begin with, I explain the constituents of his theory to elucidate its features. These constituents are the theory of justice as realistic utopia, “the society of peoples” as the international society, “political constructivism” as the procedure for working out “the law of peoples”, “the law of peoples” as the principles of international justice and his own peculiar conception of human rights, the theory of democratic peace for keeping the international stability. In sum, he tries to show that political liberalism is universal enough to work out the principles. But, I argue that he privileges liberalism, and objectifies nonliberal peoples, therefore, his pluralism is only apparent, and can't avoid westernism. In the second chapter, I investigate two fundamental issues as follows. First, I argue that Rawls'theory can't avoid westernism, since he privileges political liberalism and human rights. Therefore, alternatively, I propose M. Walzer's international pluralism. Second, I argue that Rawls'critique of R. Gilpin isn't persuasive, since Rawls can't refute neorealism and the theory of hegemonic stability.Accordingly, I contend that Gilpin is more persuasive, since he accurately recognize the effectiveness of power in the international society.

著者

山本 陽一

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.181-188,198, 2005-09-30 (Released:2008-11-17)

参考文献数

16

---

Professor Tierney points out the significance of the permissive natural law theory, which is identified as the main stream among rights theories since the 12 th century. On the one hand, the so-called modern natural law theory, one of whose exponents is obviously Thomas Hobbes, insists on the superiority of natural right over natural law. On the other hand, the permissive natural law theory makes both concepts of natural right and natural law combined mutually with each other. According to Professor Tierney, the latter type of natural law theory should be regarded much more important than the former type of natural law. While the permissive natural law theory has been applied in the course of history, the community and its members have been brought into a kind of association that produces something new in the world. We can see such cases in the constitutionalism of the Conciliar Movement in the 15 th century and also in the ideal of religious freedom in the 17 th century. Both of these grew up within the framework of the permissive natural law theory. This theory is one of the elements that mobilized the community and its people for the development of constitutional government. His analysis of rights, however, never told us how conflicts were resolved among people before canonists in 12th century Europe contrived the rights theories. In pre-modern societies people had appealed to various ways of ordeal. Adam Smith, a natural law philosopher, worked out the mechanism of the historical development of modern society. He recognized the difference between the judicial procedure of modern society and the ordeal of pre-modern society. Although he sometimes seemed too modern to understand enough about ordeals, Smith never lost sight of the importance of the problem. I think that it is suitable to start from his insight if we are to argue sufficiently for natural law theories.

著者

深田 三徳

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.1-5,200, 2006-10-30 (Released:2010-02-15)

---

The Annual Meeting of Legal Philosophy 2005 was held in NAGOYA on November12-13, 2005, under the auspice of Japan Association of Legal Philosophy (JALP). Its general theme was “The Rule of Law in Contemporary Japanese Society-Ideal, Reality and Perspective”. In Japan, “the rule of law” has been emphasized as a basic ideal for the recent judicial reform. In this meeting, the various problems about the ideals, tasks and realities etc. of the rule of law (or Rechtsstaat) in contemporary Japanese society were discussed from the viewpoints of legal philosophy and public law. Six legal philosophers and three public law scholars gave reports and discussed these problems.

著者

深田 三徳

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.7-17,200, 2006-10-30 (Released:2010-02-15)

参考文献数

13

被引用文献数

1

---

“The Rule of law” has been used in different meanigs. But this is a legal and political ideal or principle, and there are three kinds of the rule of law. First is the rule of law in the modern constitutional laws of Western countries. Second is the rule of law in Japanese constitutional law, and third is the rule of law as a political ideal. Third one relates to what a good government or legal system should be. At first, the history and development of the rule of law in modern constitutional laws of Western countries is considered. Next, the legal scholars' different views on the rule of law in Japanese constitutional law are examined. Finally, formal conceptions and substantive conceptions about the rule of law as a political ideal are discussed. One of formal conceptions is formal legality, which was maintained by Lon L. Fuller, J.Raz and R.S.Summers etc. This is important for other kinds of the rule of law as well. On the other hand, substantive conceptions maintain the rule of just or good laws. But there is much controversies about what just or good laws are. Other several problems about the rule of law are also discussed.

著者

長谷川 晃

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.18-29,199, 2006-10-30 (Released:2010-02-15)

---

In this essay, I wish to explore the key elements of the idea of the rule of law in the history of Anglo-Saxon legal thought. My exploration, though sketchy, is with the perspective that the significant core of the idea of the rule of law in a historical context embraces us still today, and that its strands are grasped as a chain novel of the normative tradition of the rule of law we are required to succeed in current contexts. Based on this perspective, I analyze the various elements of the idea of the rule of law, particularly in the legal thoughts of British or American thinkers from 17th century to modern days. The place of the rule of law is recognized as an important component of constitutional justice that gives the basis of legal system; its key elements are grasped as strongly connected to a cluster of moral principles such as equal liberty for all, equal participation in democratic deliberation, and public reason. And the various strands of the thoughts of thinkers in law leading to these elements are traced in the history of legal thought mentioned above. In developing this kind of understanding, I claim that the key elements of the idea of the rule of law constitute the substantive texture or the multidimensional layers of the idea of the rule of law, and that we may utilize it as the resource for a further weaving of the web of legal rules and principles to pursue the realization of just society.

著者

土井 真一

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.30-41,199, 2006-10-30 (Released:2010-02-15)

参考文献数

17

---

In this article, the difference between the Recthsstaat principle and rule of law is clarified through analyses of the administrative and judicial law-making processes. Based on such analyses, pros and cons of the Rechtsstaat and rule of law are compared, and the conclusion is drawn that a way to unite the two law-making processes to work together in a balanced manner should be sought, and that reinforcement of the judicial law-making process is indispensable for rooting the rule of law in the Japanese society.

著者

中川 丈久

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.42-57,199, 2006-10-30 (Released:2010-02-15)

参考文献数

15

---

The author first discusses why Japanese scholars in administrative law have seldom been attracted to the term “rule of law” despite frequent use of the concept in constitutional law, philosophy of law, and political theory. Out of four possible meanings of the rule of law (1) “supremacy of law, ” (2) “prior use of very formal procedures” (either law-making in the assembly or adjudication in the court of law), (3) “substantive adequacy of law” (including guarantee of human rights), and (4) “separation of functions” (rule-maker/rule-enforcer and prosecutor/adjudicator), the Japanese adminis-trative law theories have exclusively focused on the “supremacy of law” and the “prior use of very formal procedures” (but only the assembly version, which is commonly referred to as “doctrine of statutory reservation” meaning that prior statutory authorization of administrative activies is required). The author argues that the rule of law as conceptualized in Japanese public law does not include, as far as administrative process is concerned, the court of law version of the “prior use of very formal procedures” nor the “separation of functions”. He also notes that administrative law scholars do not necessarily discuss “substantive adequacy of law” simply because that is for constitutional law theories. He then discusses the importance for the Japanese administrative law to pay more attention to the court of law version rather than the assembly version of the “prior use of very formal procedures”. Though the traditional administrative law theories have focused on the assembly version, i.e., the doctrine of statutory reservation, it has become clear that in the administrative state, the failure of the assembly version is almost destined. In an effort to keep the current administrative state within the rule of law, he argues, the Japanese public law theories should reengineer its concept of the rule of law, and reform its understanding of judicial courts' role in controlling the administrative state under a new version of “rule of law.” From this standpoint, the author discusses implications of the 1994 amendment of the Adminis-trative Case Litigation Law to the remodeling of the rule of law. He points out the two “messages” of the amendment which encourage expansion of both standing to sue and use of Tojisya (regular) suits.

著者

山田 八千子

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.88-104,202, 2005-09-30 (Released:2008-11-17)

参考文献数

19

---

In this paper I presuppose that liberty has a structure. Such structure of liberty also exits in private law. I would especially deal with some issues of contract law. Contract law is the core in libertarian legal theory. That is a reason why I focus on contract law. Libertarians respect the principle of freedom of contract. This is one of main principles of so called “classical private theory” or classical contract theory. By contrast, modern contract law is based on Welfarism which is criticized by libertarian in general. If modern contract theory is in harmony with Welfarism, it seems that libertarianism contributes not to these field of modern contract law theory. But I believe that it is a misunderstanding about libertarianism. We should explore practical implication of libertarianism for modern contract law. I argue that libertarianism provide useful suggestions for resolving a number of problems that modern contract law theory have to cope with. Firstly I indicate a number of dilemmas in modern contract law as follows. Although in modern contract law “consent by parties” would be often regulated for weaker parties, such regulations are not necessary produce the desired result. This is the point of libertarian argument. For instance, I refer to an example with regard to a relation between landlord and tenant in Land and House Lease Law in Japan. Secondly I explain libertarian arguments about “the nature of market order” and “the knowledge of the circumstance in market”. Indeed there are substantial differences in knowledge between consumer and company. But such differences are not necessary good reason to intervene to market. According to libertarian argument, market order is one of spontaneous order. So the knowledge never exists in concentrated, integrated form. If we wish to make good use of such knowledge in market, we have to take seriously the libertarian theory.

著者

浅野 有紀

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.105-111,202, 2005-09-30 (Released:2008-11-17)

参考文献数

4

---

This comment addresses two critical points about libertarian legal philosophy. The first relates to the possible contradiction between the idea of property and freedom of contract, two ideas on which libertarianism is usually thought to be based. To clarify this contradiction, I refer to the argument made by Murray Rothbard. He argues that a person has a contractual duty only when his default amounts to ‘theft.’ Identification of contractual duty and theft in this way is, Rothbard insists, necessary to explain libertarianism coherently. However, considering the breaking of contractual duty as theft has to mean that rights and duties resulting from contracts should be correlative in some objective or economic sense. The correlation cannot derive from freedom of contract, but instead must stem from the protection of property and the relationship between rights and duties according to corrective justice. Accordingly, it is my opinion that libertarianism must allow for some intervention by a third party, possibly the state, in order to ensure this objective correlation. My second point addresses the close relationship between the idea of the freeianism. In this paper, I attempt to define a comprehensive vision of a libertarian legal system and show the significance of libertarian legal theory. I start by illustrating three fundamental backgrounds of libertarian legal theory. The first is an awareness that useful knowledge disperses widely across a society, as emphasized by F.A. Hayek. The second is a libertarian view of human nature. Libertarianism does not presuppose a stereo-type, but rather accepts multiple types of human nature. According to the third background, which pertains to methodology, there exist two types of approaches a natural rights-based approach and a consequentialistic one. I then explain the features of libertarian legal theory. I consider private law-based legal principles, restitution as alternative to punishment, and emphasis on the rule of law to be the three main characteristics of this theory. Finally, I consider the implications of libertarian legal theory for today. The features of this theory appear to be similar to those of classical modern law. However, I believe that it should not be understood merely as a regression to classical modern law. Libertarian legal theory can offer a solution to the issue of legalization (Verrechtlichung), which is one of the serious problems faced by welfare states. In other words, it can be considered a legal theory for a “post-legalized society.” Furthermore, since the patterns of social ordering and conflict resolution become diverse, there exists a requirement for various methods of legal ordering other than those initiated by the government. I believe that libertarian legal theory has the potential to be used as a legal theory for non-government-initiated legal ordering.

著者

森村 進

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.112-127, 2005-09-30 (Released:2008-11-17)

著者

土井 崇弘

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.128-136,201, 2005-09-30 (Released:2008-11-17)

参考文献数

21

---

In this paper, I analyzed the theories of tradition in the works of F. A. Hayek and A. MacIntyre. Although both Hayek and MacIntyre criticize Enlightenment rationalism and emphasize the importance of tradition, there are great differences between their notions of tradition. While Hayek's notion of tradition is the tradition of rules of conduct, MacIntyre focuses on the tradition of intellectual enquiry. The differences also exist in their understandings of the relationship between liberalism and tradition, and in their theories of the progress of tradition. Hayek states that a successful free society will always in a large measure be a tradition-bound society, and that we should improve and revise our tradition of rules of conduct by remedying recognisable defects by piecemeal improvement based on immanent criticism. In contrast to Hayek's understanding, MacIntyre argues that in so far as we criticize the Enlightenment and emphasize the importance of tradition, we cannot defend liberalism. And MacIntyre also states that the enquiry of individuals as embodied in a tradition must involve not only discovery and an acknowledgement of what is given, but also the possibility of critical reflection on a tradition within which they find themselves, and such a critical reflection should not be restricted to piecemeal improvement based on immanent criticism. MacIntyre gave a detailed account of the progress of the tradition of intellectual enquiry in the theories of comparison between traditions. Finnally, based on both Hayek's and MacIntyre's theories of the progress of tradition, I present the theories of comparison between traditions of rules of conduct.

著者

野崎 亜紀子

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.137-145,201, 2005-09-30 (Released:2008-11-17)

参考文献数

10

---

The word “relationship” has a broad range of application and appears in various scenes in various meanings. My paper discusses on the concept of relationship within the legal theory, i. e. “relational rights”. Its main concern resides in the problem, “When and how can liberty be restricted from the perspective of the relationship” It looks as if the normative implication of relation depends on the context. But the concept of relationship here meets the criteria of legal universality which consists of equality principle. The concept of “relational right” is polysemous. While four aspects of it are analyzed in my paper; (1) Right to Relationship, (2) Right by Relationship, (3) Right in Relationship, and (4) Right as Relationship, a special attention is paid to the “Right in relationship”. Then, it is clarified that this right has a peculiar implication with obligatory content. Last, some criticisms of the usefulness of introducing this concept into legal theory are countered.

著者

若林 翼

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.146-153,200, 2005-09-30 (Released:2008-11-17)

参考文献数

21

---

The purpose of this article is to put forward the argument that the role of the law and its relevant subjects should be to dismantle the structural discrimination in the society. The theories and practices of three feminisms liberal feminism, radical feminism and postmodern feminism are compared and discussed. The liberal feminism's argument is that the female is an autonomous “chooser” and the aim of laws against gender discrimination is to basically remove obstacles for women to allow them to choose and decide by themselves. On the other hand, radical feminism believes that the role of women has been constructed and is deeply embedded in the society, especially by men, therefore their desires are also constructed. To change the structural gender discrimination which women are also part of, it is essential that women be made aware of problems through “consciousnessraising, ” and that through this feminist law should embody women's point of view and redistribute resources and privileges. Postmodern feminism, however, denies the existence of the subject and rejects the use of law to subvert the gender system. The subject is not out there, it is rather the “effect” of the coherent but coercive institution of biological sex, gender, sexual practice and desire. According to Postmodern feminism, liberal feminist law keeps the cultural norms and radical feminist law excludes women who are not typical sacrificed “women.” Considering the postmodern feminism's insight, the subject could be understood as a process to become a unique person, and that the task of law is to give adequate room to each person where she could imagine the future herself and try to be that figure. In this way, the law would subsequently lead to the erosion of the fixed binary gender system.

著者

佐藤 憲一

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.154-162,200, 2005-09-30 (Released:2008-11-17)

参考文献数

25

---

What kind of meaning exists in discussing legal indeterminacy today It is often said that there is no meaning since legal indeterminacy is stale common sense. However, the radical thesis that law is wholly indeterminate is not common sense. It is the very radical thesis that we want to discuss. According to this thesis, law does not have the capability to determine the legal rightness of actions in advance. This conclusion is obtained from Wittgenstein's rule-following considerations. According to Wittgenstein, any rule cannot pre-determine the rightness of actions. The current legal practice is characterized by legalism which premises the conventional understanding that law is (partially) determinate. But, the radical indeterminacy thesis collapses such an understanding. We have to turn toward post-legalism.

著者

森村 進

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.1-4,206, 2005-09-30 (Released:2008-11-17)

---

The Annual Meeting of Legal Philosophy 2004 was held in Hiroshima on November 13-14, 2004, under the auspice of the Japan Association of Legal Philosophy (JALP). Its general theme was “Libertarianism and Legal Theory”. The concept of liberty or freedom has been discussed in philosophy of law in many different ways, but JALP had not yet devoted an annual meeting to this topic. In order to fill this gap, libertarianism both in theory and practice was focused on in this meeting, because libertarianism can be considered to be a purified version of classical liberalism as contrary to contemporary welfare liberalism. 7 speakers and 2 commentators were asked to make clear evaluations of libertarianism.

著者

森村 進

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.5-17,206, 2005-09-30 (Released:2008-11-17)

参考文献数

21

---

It is often assumed that libertarianism presupposes rational, autonomous, strong individuals and is committed to “rugged individualism”. Not only critics of libertarianism, but also some libertarians themselves believe this is so. However, I disagree. In this paper, I argue that libertarians should not advance any particular controversial conception of human nature. Rather, they should acknowledge the great diversity amongst humankind as an undeniable fact and be wary of presenting some ideal form of human life. With respect to human nature as it is, it is partly because real people vary in so many respects such as their beliefs, ideals, values, talents, capacities, inclinations, tastes, temperament, knowledge and so on that everyone is to be allowed the liberty-right to pursue their own individual happiness at will and governments should abstain from imposing any particular ideal on their citizens and inhabitants. As for the ideal of human life, libertarianism must remain neutral among competing conceptions of the good life. It is true and only natural that libertarians, like others, should have their own views regarding human happiness and excellence, which are likely to differ from those of communitarians, welfare liberals and conservatives. However, libertarians do not hold such views qua libertarians, for a libertarian may voluntarily lead a life in a collectivist community or a disciplined monastery without any self-contradiction. Libertarianism is a doctrine of justice, not of human well-being or happiness. Nevertheless, atthe very least libertarianism makes one assumption concerning human nature, and that is that bar some exceptions all adults share minimal rationality and autonomy. Hencecomes the right of self-determination. While communitarians, left or conservative, exaggerate cultural diversity across nations and ethnic groups and make little of the diversity between individuals in a group, libertarians recognize basic universal humanity all over the world on the one hand and emphasize the differences between individuals on the other.

著者

橋本 努

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2004, pp.18-29,205, 2005-09-30 (Released:2008-11-17)

参考文献数

6

---

To what extent the libertarian defense of the self-ownership is valid? In this paper, I would examine Prof. Morimura's original theory on the justification of self-ownership which can be called as “physiological-intuitional defense of libertarianism.” A paradigmatic example which supports the theory is a lottery of eyeball: a public lottery in which every ordinary person is forced to participate and some elected. are asked to transplant his or her pair of eyeballs to the blind persons. Libertarians would not agree this lottery run by the government since physiologically imagined pain would be a good reason to deny it in the light of property rights for our own body parts. However, what about a lottery which transplants cornea under the condition of negligible pain and negligible deterioration of the eyesight? Some people would agree to join this lottery and the government could run it under the condition where people have a right not to take part in. This kind of lottery of transplantation shows how our physiological sense of self-ownership is ambiguous. The sense of the self-ownership of our body depends how we focus on its body parts. In addition, even if we could justify our body-ownership as a basis of our self-ownership, the degree of its justificatory power for our labor and products would not be the same. The question is to what degree a fundamentalist method of developing a systematic logic for self-ownership would be valid. I raise some alternative ways for the justification of private property rights system from a point of a Hayekian growth-oriented liberalism. Especially, I would examine a boundary problem of self-enslaving contract and a problem of “a pleasure of ownership” as a basis of private property rights system.