Moral Philosophy and Politics 2017; 4(2): 229–255
Margaret Moore*
Legitimate Expectations and Land
https://doi.org/10.1515/mopp-2017-0002
Abstract: This paper focuses on land as a domain in which legitimate expectations can give rise to entitlements. The central argument is that people are
connected to other people and to projects, which are symbolically and materially rooted in particular places. This gives rise to an interest – an interest that
is sufficiently weighty that it imposes obligations on other people – to protect
stability of place. There are two ways in which legitimate expectations structure argument about land. It justifies liberty rights to remain in a place, and
not be removed or expelled from it, independently of the coercion that often
accompanies forcible expulsion, and argue for rights of return as a secondorder right when this right has been violated. I also argue that passage of time
in a changed context can affect people’s legitimate expectations, and so their
entitlements.
Keywords: legitimate expectations, land, property, justice
In this paper, I examine the idea of legitimate expectations and the role that it
plays in two related arguments for rights to land or place. Most discussions of
legitimate expectations in political theory take as their starting point Rawls’s
account, which appeals to the idea of expectations developed under a just
political and legal system, and have extended this idea to justify compensation
and ‘grandfathering’ clauses (Rawls 1971; Meyer and Sanklecha 2014; Stilz
2011). The concept is also used in applied ethics and transitional justice, to
justify a transitional justice principle, in relation to such thing as climate
change policy (Green 2013). It is also deployed in law, where the idea of
reliance is used to justify a claim to compensation when legitimate expectations are not met (Brown 2011). I do not reject these uses of the term, but I
argue below that each understands it quite narrowly, and misrepresents the
complex interaction between expectations and entitlements.
In focusing on land as a domain in which legitimate expectations can give
rise to entitlements, I broaden our usual understanding of the role of legitimate
expectations. I do not reject the above uses and their rationale, but I argue that
*Corresponding author: Margaret Moore, Department of Political Studies, Queen’s University,
Kingston, Canada, E-mail: margaret.moore@queensu.ca
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we can appeal to legitimate expectations in a wider set of contexts. Rawls, for
example, argues that the rules of legal or political institutions give rise to
legitimate expectations, an argument that I accept, but I go further than this
in arguing that, in certain contexts, social norms and widely held but nonpolitical or non-legal norms and practices can give rise to legitimate expectations. My understanding is also broader than is usually deployed in legal
compensation cases, where there is a quite precise account of reliance, and a
requirement to identify a specific duty-bearer that has induced reliance, from
whom compensation can be claimed.
In the territorial rights literature, in which my argument is situated, legitimate expectations are appealed to, but in a way that involves a much broader
account of reliance, and the duties in question are not necessarily duties of
compensation (for frustrated expectations) but more general duties that arise
from rights, where rights are conceptualized as protecting interests that are
sufficiently weighty to hold others under duties.
Another related theme of this paper concerns whether appeal to the concept of legitimate expectations (in any form, and on my more expansive reading) is a plausible vehicle for arguing for territorial rights, by which I mean, in
the first instance, a liberty right to remain in a particular place, where particular place doesn’t necessarily mean one’s property but refers also to one’s
community or broadly conceived place of residency, and generates a right not
to be removed or expelled (see Moore 2015, especially chapter 3; Stilz 2011,
2015). In addressing this question, I consider objections to any appeal to
legitimate expectations, and also objections to how that argument operates
in relation to land or territory.
1 What are ‘legitimate expectations’? – and what
does ‘legitimate’ mean?
Before I begin, it is important to address some preliminary conceptual and
normative questions: What are legitimate expectations? How can they give rise
to claims of justice, or entitlements?
The term ‘legitimate expectations’ has both epistemological and normative
dimensions.1 Let’s look at the epistemological axis first. In ordinary language,
1 For a similar treatment of epistemological and normative dimensions to the concept – and a
similarly cursory treatment of the epistemological dimension – see Meyer and Sanklecha (2014).
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we use the concept to refer to something that we expect will happen in the
future, for which there are good grounds. When an expectation satisfies this
epistemic threshold – it is an expectation for which there are good reasons – we
can call it a ‘reasonable expectation’. In that usage, it is different from a ‘bare
expectation,’ which is purely subjective, and for which there may or may not be
any supporting evidence. Legitimate expectations are reasonable expectations
(the epistemological condition has to be satisfied), but the term ‘legitimate’
suggests a somewhat moralized dimension to this concept. A legitimate expectation, on my view, arises from the operation of rules, practices, policies, norms
and conventions; and is moralized in the sense that these cannot be contrary to
objective justice.
Does a legitimate expectation arise only when the expectation is supported
by justice?
On one view, an expectation is ‘legitimate’ if it refers to an action or
practice or policy that is required by justice. This could apply to a policy or
an action that is straightforwardly required by justice, or, as in Rawls’ and
Allen Buchanan’s accounts, an expectation that arises from institutions that
are justified on grounds of justice. Rawls for example, defined legitimate
expectations as expectations that are defined by the rules that operate in a
just legal order. Rawls writes:
A legal system is a coercive order of public rules addressed to rational persons for the
purpose of regulating their conduct and providing the framework for social cooperation.
When these rules are just they establish a basis for legitimate expectations (1971, p. 235).
Rawls’s discussion of legitimate expectations is in a section on the rule of
law, which reflects his view that legitimate expectations can arise only
through the provisions – public policies, laws and rules – of a legal order.
Buchanan, drawing on Rawls, also argued that a legitimate expectation is an
expectation of benefits that people have, and can be called legitimate if it
arises through the operation of just institutions (1975; see also Brown 2012).
This understanding is like Rawls’ in so far as it is tightly linked to the idea of
substantive justice – though Buchanan recognizes that this account is problematic when rules change as a result of a deeper, or new, understanding of
justice (pp. 420f).
The tight link between justice and expectations raises the question of the
weight that we should give to the idea that it is an ‘expectation’ rather than the
fact that it is straightforwardly required by justice. The fact that it is an ‘expectation’ does seem to do some work on this analysis, but it is fairly minimal.
Presumably, the person who has the expectation knows what justice requires
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and expects that justice will be done – and so acts on that knowledge. It’s bad to
deny a person what they are entitled to on grounds of justice, but worse to deny
the person what justice requires when he or she has formed the legitimate
expectation.
This doesn’t seem like a complete account, however. Sometimes people form
expectations that are neither contrary to justice nor required by justice. These
may be reasonable – perhaps they arise from the operation of institutions that
solve coordination or other problems, or, as I will go on to argue, from social
norms or conventions. In this sort of case, what’s doing the work is that it’s an
expectation rather than that it’s a requirement of justice (even if the expectation
wouldn’t be ‘legitimate’ if it was contrary to justice). My account therefore
inverts Rawls’s theory of how legitimate expectations arise: for Rawls, an
expectation is legitimate if it arises through the rules embedded in the operation
of just institutions. I take it, though, that part of the claim being made is that, in
cases where individual A has a reasonable expectation, and organizes his or her
life around that expectation, the frustration of that expectation is harmful. Yet,
reasonable expectations can arise not only through the legal or political order
but through less formal norms and practices. Moreover, by focusing on justice –
indeed, defining the expectation as arising through the operation of objectively
just rules – Rawls does not do enough to focus on the person with the expectation, and the force of that in generating the entitlement.
Rawls’ account is valuable insofar as it captures the idea that a legitimate
expectation is not solely connected to the individual’s subjective motivational
set: it is not something that the individual wants for him or herself, but rather is
typically mediated in some way. For Rawls, legitimate expectations are acquired
through the laws and policies embedded in the institutions of justice; whereas,
in my account, expectations can also develop through the operation of widely
held social practices or social conventions. In neither case do we refer to something as a legitimate expectation if it is purely subjective, even if it (the expectation) is fervently believed by that person.
What about an alternative view (to Rawls’s emphasis on justice) that holds
that a legitimate expectation is any expectation of benefit that is reasonably held
under accepted legal rules? This has the advantage of reflecting the assumption
of many ordinary people that the institutions and practices that operate as a
backdrop to their lives are morally valid. They do not normally subject every
policy or law or practice to critical scrutiny, accepting most of them as having
some kind of normative authority.
One problem, though, with the above account is that it may be too
permissive: it is consistent with egregiously unjust practices and law. To see
this, consider the case of a slave-holder in the Ante-bellum South, who holds
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property (slaves) under the law.2 It’s true that the slave-owner was operating
under legal rules, but we also think that many people have the capacity to
reflect on and critically engage with the practices of their society, and that the
slave-holder ought to have done so with respect to a practice that involved
relations of domination and subordination, serious exploitation, and the
denial of many other norms that were accepted as part of natural law in that
society. There was also an on-going debate at least from the eighteenth century
about the morality of the practice.3 I take it that we wouldn’t want to define a
legitimate expectation in such a permissive and non-moral way that slaveowners would be entitled to some relief, to some compensation, for the abolition of slavery. On the contrary: it is reasonable to think that the slaves are
entitled to compensation for many years of domination and exploitation under
slavery!
What, then, ought to count as the appropriate normative baseline for
‘legitimate’ expectations? I have argued that a non-moral, purely legalistic,
baseline is not sufficient: it fails to incorporate any normative content into the
idea. I also suggested that the idea that the expectations must instantiate full
justice – or, as in Rawls’s formulation – that people ‘can only acquir[e] …
claims to a social product by doing certain things encouraged by just social
institutions’ – is too demanding.4
An intermediate position relies on the idea that there are many social
conventions, laws and practices that are permissible; that are neither required
by deeper justice nor egregiously unjust. In the background is a view of
2 I owe this example to Fergus Green (2013). For a range of legal examples, see Daphne BarakErez (2005).
3 It might be thought that my formulation here gets the right result (no compensation for slaveowners) but for the wrong reason. The right reason is that slave-owners shouldn’t be compensated because their expectations were illegitimate whether people widely thought so or not. I
agree: in cases where an immoral norm is instantiated in the society we can have a reasonable
expectation but not a legitimate one. But I also think that in many cases of unjust norms, there
is significant controversy about the norms themselves, because people are aware of the
domination and injustice that surrounds their practice. This is Doris Lessing’s point about
Rhodesia, where she argues that whites were obsessed with their relationship with blacks, in
part because they knew they were oppressing them, and knew that blacks knew too; and it
permeated all the relations in the society (see Zvomuya 2016).
4 See also Rawls (1971, p. 13). There he assumes a just legal system, though his argument about
people doing things under rules and having expectations of fair treatment under these rules is
compatible with mine. Meyer and Sanklecha develop a similar intermediate position in dealing
with this tension. They distinguish justice-based accounts from normative authority-based
conceptions of legitimate expectations, to arrive at a middle position (see Meyer and
Sanklecha 2014, pp. 375 ff.).
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political communities that have jurisdictional authority and self-governing
powers, which allow them to create rules to govern the collective life of
their community. The state establishes (its own brand of) justice within its
territory through the legislation, adjudication and enforcement of the rule of
law, but it is constrained by universal principles, such as respect for basic
human rights. Thus, while laws themselves have some kind of content-independent authority, as the rules that citizen co-create together, they are constrained by, at the minimum, universal negative duties (such as a no harm
principle) or basic rights, which may include substantive claim rights. This
means that rules or policies or practices that are egregiously unjust, that
violate basic human rights, or some kind of moral minimum, cannot establish
legitimate expectations, but that many laws which represent the agreed practices or policies of a certain way of organizing human life and are not
objectively unjust can give rise to legitimate expectations. Moreover, as I
argue below, legitimate expectations can be acquired by social conventions,
not only laws; and this argument – which inverts the basic Rawlsian relationship between law and expectations – represents an important departure from
many treatments of the topic in political theory.
2 How can ‘legitimate expectations’ create
entitlements?
This section addresses the question of why we might think that legitimate
expectations give rise to moral claims. What are the precise mechanisms that
generate entitlement?
The section above distinguished between epistemological and normative
dimensions of the concept, but this distinction should not be over-stated: it is
probably not a good idea to simply set aside the epistemological axis entirely
and assume that the person’s expectation is reasonable, in order to focus on the
moralized sense of ‘legitimate expectation’. This is because some reasons for
thinking that an expectation is reasonable – for example, the person in question
received a promise or contract or assurance by a legitimate government body –
also represents a reason why we think that the expectation-bearer has an
entitlement, so the two cannot be conceived of as entirely separate.
Promises or contracts are the standard way of creating an expectation in
private law, but a parallel situation can arise when the government makes a
public announcement, or policy change, or creates a new category of benefit,
which then creates expectations on the part of individuals, and the individual
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then acts in ways that create a reliance interest.5 This is standard case in law,
where a legitimate expectation can give rise to a compensation claim. Consider,
for example, the case where the central government announces new money for
the construction of a brand new school; the school board then tears down the
existing infrastructure and embarks on this construction; and then the government changes its mind and fails to release the new money. Its actions, its
statements have not only created expectations but a reliance interest, such
that the school board is now harmed by the failure of the government to make
good on its announcement.6 In the law of most European states, legitimate
expectations are protected in administrative law only when there is a reliance
interest to the benefit expected, and the reliance interest is created by state
policy and/or explicit state assurance.
The emphasis in law on a reliance interest recognizes that it’s not the fact of
expectations themselves that give rise to entitlements, but the idea that it is
reasonable for people to develop projects and aims against a stable background
of rules or practices, and these projects involve costs – both opportunity costs
and sunken investment costs – which can give rise to a claim.7 If the claim is to
compensation, it is also important to identify a duty-bearer, an agent – either
individual or collective – from which the compensation can be claimed, and that
agent is the one who induced the reliance interest.
What though of cases which are not entitlements based on law, nor on
explicit promise, but on the fact of expectation? This brings us to a consideration
of the precise way in which an expectation can be said to give rise to an
entitlement. There are broadly speaking two views about the mechanisms: the
Humean view, which focuses on how expectations themselves generate entitlements, and the Rawlsian view, which suggests the reverse: that entitlements
generate expectations, so expectations are not foundational.
In this paper, I will adopt a modified Humean view, based, not on a faithful
reading of Hume, but on an analysis of how an expectations argument functions
in the case of land, and the limitations or inadequacies of the Rawlsian view in
that case. It is, I forewarn, a modified Humean view, in the sense that, while
Hume explained the psychology of expectations well, he had difficulty explaining how exactly this gives rise to an entitlement. To do this, we need to rely on
5 There is of course some debate on whether the government has to actively encourage an
expectation – e. g., by declaring a policy – or whether it can be based on good (reasonable)
guesses about what governments aim to do. For a discussion of the concept in English public
law (which requires active encouragement), see Sales and Steyn (2004, p. 564).
6 This example is similar to the ones in Alex Brown (2011).
7 For a good discussion of this, see Meyer and Sanklecha (2011).
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an interest theory of rights – a theory that wasn’t yet developed – and show that
human beings have a strong interest in having stable background conditions to
their lives, to have future-oriented projects, and that this story can explain how
legitimate expectations can give rise to entitlements.
One of the innovative aspects of Hume’s argument is his claim that uninterrupted use or access to a thing generates an expectation of continued
use and access into the future through the psychological mechanism of
Association. This was part of a carefully worked out psychology of action,
which relied on an explanation of how sentiments and expectations can
develop. Hume begins with the psychological fact of association and suggests
that this gives rise to a normative expectation. This psychological association
applied to the person P who was making use of object O, but it was also used to
explain how social conventions can develop. For example, if we see person P
continually carrying object O, it then seems right to us that P rather than
anyone else should continue to possess O, so we invent a rule to that effect.
The rule arises from the psychological association (together of course with the
belief that we need to have some rule for assigning objects). For Hume,
continued use and access generated both associations and normative claims,
by the person in question and by others. He then goes on to show that rules
about property – he lists occupation, prescription, acquisition and succession –
arise in this way.
The problem with Hume’s account is that there is a gap between his
psychological theory – his view that people will infer from past use that they
will be able to use the thing into the future – and the claim that this generates
an entitlement. At times, Hume bridged this gap through the argument that it
was useful or wise for the political order to enforce people’s widely held sentiments and beliefs in the law, so that the government order is not operating
purely coercively. The link between the two – the moral sentiment which we
might think of as a reasonable expectation and the normative claim or entitlement – is a commitment to the idea that human institutions ought to promote
the well-being of those who are subject to them, which means that, even though
entitlement to resources or to land and property is an artificial convention, a
good political order would be structured in ways consistent with human psychology, including the mechanism of Association.8
8 Bentham followed Hume to some extent in appealing to the role that expectations play in
people’s lives as part of a general utilitarian argument that legislators should attempt to secure
people’s expectations, and that failure to meet expectations detracts from the greatest happiness of the greatest number. Bentham’s position relies on two assumptions that are both
defensible. The first is a relatively sophisticated view of human beings, not usually associated
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Sidgwick, too, made much of expectations, and did so in a way that also
relied on certain claims about human psychology. Justice, Sidgwick argued, is
often ‘held to prescribe the fulfillment of all such expectations (of services, etc.)
as arise naturally and normally out of relations, voluntary or involuntary, in
which we stand towards other human beings … ’ (1963/1874, p. 269). Why is
that?
Sidgwick explains:
… [T]he ordinary actions of men proceed on the expectation that the future will resemble
the past: hence it seems natural to expect that a particular man will do as others do in
similar circumstances, and still more, that he will continue to do whatever he has hitherto
been in the habit of doing; accordingly his fellowmen are inclined to think themselves
wronged by his suddenly omitting any customary or habitual act, if the omission causes
them loss or inconvenience (1963/1874, p. 270).
The basic idea is that expectations form an important part of the way that we go
about living our lives. Frustrated expectations or upset expectations, then, seem
like a pro tanto harm and so ordinary people feel that they are wronged by the
frustration of their expectations. As it stands, though, this argument again
explains the psychology of frustrated expectations but fails to go the extra
with utilitarianism: this is that people are not just motivated by the pursuit of pleasure and the
avoidance of pain, but are likely to develop medium and long-term projects which require some
stability in the background framework of their lives. The idea is that people advance their
welfare and that of others through the pursuit of specific projects and aims, and these projects
require that we are able to form expectations about what people are likely to do, which are in
turn structured by the background rules that govern the society. The second assumption is that
pain, frustration and suffering are experienced more intensely than satisfaction, and so should
be given a significant weight in the utilitarian calculus. This suggests that frustrated expectations are to be taken more seriously than the mere failure to confer a good on someone. While
these two assumptions are plausible, and probably implicit in any argument that gives credence
to legitimate expectations, it is the explicit endorsement of utilitarianism – to act in accordance
with the greatest happiness of the greatest number – that confers a normative dimension to the
argument. If we are not utilitarians, the argument fails, at least as stated, to explain entitlements. It is also problematic for reasons outlined by Jeremy Waldron (1990), viz., that the
interest in stability that Bentham recognized people had was not really compatible with the
aggregative logic of utilitarianism. Although utilitarians made expectation-based arguments,
many of them assumed – but were not entitled to so assume – that the aggregative calculus
applied only at the level of rule-making, but not at the level of individual decisions. Since it is
not clear what level of generality the utilitarian calculus should be aimed at, whether it applies
to individual acts or to rules, the argument is unclear – indeed, the argument about the need for
stability only works if we assume that the utilitarian calculus applies to rules. This is a specific
instance of the much-discussed complaint about the inherent instability of rule-utilitarianism.
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step to explain entitlements – although, as I argue below, it’s possible to extend
that argument by imagining what he could have said.9
If both Hume’s and Sidgwick’s ideas are problematic, should we then adopt
the opposite, Rawlsian account of legitimate expectations, which describes
legitimate expectations as expectations that result from the operation of the
rule of law, that is, the rules, norms and practices of a legal and political order?
Jeremy Waldron, in his book The Right to Private Property (1990), presses
this view, against the broadly Humean account, that entitlements cannot be
grounded on expectations, but that expectations arise only once people have
such entitlements. He advances the argument through the example of entitlement to property (a topic which is close to the territorial rights literature
discussed in the next section).
Waldron begins this section by citing Bentham (who was in some ways
sympathetic to Hume’s argument), but who nevertheless criticized Hume’s argument from Association, on the grounds that ‘a feeble and momentary expectation may result from time to time from circumstances purely physical’ but that ‘a
strong and permanent expectation can only arise from law’ (1931/1843, p. 113).
Bentham went on to argue that, outside of the law, a man will not expect to keep
the deer he had killed, nor the acorns he has gathered, or if he does, it does not
extend beyond his own estimation of his own ability to defend them, but this
does not show that he is entitled to them.
Waldron cites this passage and elaborates that a
‘principle of respect for expectations, and the concomitant idea of identifying with a
property cannot be the foundation of a principle of entitlement; such a principle must
already be generally respected before the relevant expectation can come into play’ (1990,
p. 197, italics added).
An expectation can only develop if a person has reason to believe he could or
should remain in indefinite control of the land or the object. Indeed, Waldron
argues, pressing the point, it is unlikely that people will identify with their land,
9 A similar argument is advanced by Olivecrona, in an innovative interpretation of Locke’s
labour theory, where he argues that the deprivation of goods or resources or things that we have
come to possess cannot be cashed out in simple economic terms: it is experienced as a
deprivation because we come to associate certain objects as part of ourselves, and their
deprivation as an attack on the person. He argues that this attachment is common with
particular pieces of land: ‘The feeling of unification with the physical thing varies according
to circumstances. It is strongest with regard to things in daily use which are dear to us for
sentimental reasons. The farmer feels united to the soil in which he works. The town dweller
has a similar feeling for the house that is his own; something of himself sticks in that house
where he has been living so long with his family’ (1974, p. 224).
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unlikely that they will assume continued access or independent control, unless
they are already in a legal relation with respect to it. Like Rawls, then, Waldron
argues that it’s not expectations that give rise to rights but that rights or
entitlements under the rules give rise to expectations.
Is there a way to rescue Hume’s argument? Is the basic Rawlsian formulation – that legitimate expectations are any reasonably held expectation that is
encouraged by existing just arrangements – the better view?
First, I think it’s clear that some expectations do arise from the rules or laws
of a society. While these rules do not have to be rules of justice, they ought not
to be contrary to justice (to be legitimate in the right way). Rawls can accept this
to some extent. We ought not to assume that Rawls held a monistic account of
justice; in many areas of life, there may be no uniquely ‘just’ rule on a particular
matter. However, once we concede this, we can see that the main normative
consideration underlying the entitlement is not the objective justice of the rule
but an appeal to fairness, or fair treatment of the people who operate under the
rules.
To see this point, consider the following example of the requirements that a
student has to have in order to be admitted to a university. Suppose society A
requires that all students have to take A-levels, and write exams on the basis of
this; and society B has an international baccalaureate system. Either system – A
levels or IB assessment – is fine: there are advantages and disadvantages with
each, but it would seem permissible for different states or different jurisdictions
to have different requirements for this sort of thing, and no reason to think that
one is uniquely required by justice. Now, let us imagine a case where a state
permits both kinds of systems – some schools use A levels and other schools
follow an IB curriculum and both are accepted as prerequisites to get into
university. Even though both systems are acceptable, we would still think that
there is a problem if the state suddenly announced that no IB certificates will be
accepted. This rule-change seems to place an unfair burden on all those pupils
who worked hard under an IB system, and did so at a time when both kinds of
systems and both requirements were acceptable. Since either is consistent with
justice, the problem with the sudden change is that it severely disadvantages
one group of people who couldn’t be expected to foresee this big change in the
rules by which they live their life, and have incurred costs – at the minimum,
opportunity costs – by orienting their lives to a rule or policy that has now
changed. This seems unfair. Even if there are good reasons for the rule to
change, it seems that the individuals in this position should be protected: that
the implementation of the new rule should have some kind of adjustment period
(‘grand-fathering’ clause) so that the person is not made to pay these costs
without the corresponding benefit, or, where that is not possible (let’s say in a
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different sort of case), then, the unlucky individuals should be compensated so
that the burden is shared. This seems not a requirement of ideal justice, but a
requirement of fairness in so far as the person had reasonable expectations that
the IB certificate would count as a prerequisite to get into university.
Now that we can see that the central normative claim is one of fairness, we
can see that we do not need to assume – though Rawls did – that legitimate
expectations are induced solely by a legal or political order. What about cases
where people operate peaceably for multiple generations with a particular landtenure practice, which is not explicitly written into the legal code of the society,
but then, that system is overthrown to make room for a different regime, with a
different ideological bent and different land tenure practice? This was the
situation of indigenous people in pre-colonial North America, who held land
under their own rules, even if they weren’t embedded in a particular legal
regime, and the rules operated at a less formal, indeed unwritten level. They
could not claim to have legitimate expectations induced from a just legal order,
characterized by the rule of law, as Rawls seems to assume. Yet, we may still
think that the people who held land in a usufruct system had rights to that land
that were not unjust, were widely accepted in these indigenous societies and the
individuals in that situation had legitimate expectations of continued use and
access. They were legitimate expectations, not merely reasonable ones, because
the individual in question had developed reliance interests in the continued use
of that land, and it is unfair to those individuals if these practices and rules
change suddenly. The harm involved is only that of frustrated expectations, but
the change in system represents a serious loss to the interests of the person,
given that s/he had oriented her life in accordance with the status quo ante. Just
as with the A-levels and IB schools case, we might think that the reliance
interests that the person had, and their reasonable expectations in the stability
of the practice, justifies, at the minimum, that the individuals harmed by this
change would be ‘grand-fathered’ so that their entitlements were recognized,
or – depending on the kind of land use rights they had – incorporated in the
new legal order. This precise argument is not found in Rawls, who links
legitimate expectations to the rule of law, but it is an extension of the core
idea that it is unfair if rules and practices change suddenly, in ways that
seriously disadvantage people living under them.
The view that entitlements are the creatures of the state has a very long
lineage, from Hobbes to Bentham, Murphy and Nagel, but it is not true that the
only source of norms upon which expectations could reasonably develop originate with the state. People engage in group-level cooperative activities, in which
all members of the group share a similar understanding of the rules, and this
rule-governed activity may involve basic ideas, including ideas of property and
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territory, which I will focus on shortly. No doubt the state is useful to address
problems of free-riding and cheating, but it is not necessary to have a state to
have norms of control over a piece of land, or group-based expectations of
residence in a village. These require only fairly stable norms that can arise
through social and/or collaborative activity, where individuals participate in
distinct roles and have shared goals. And these social norms can give rise to
an expectation, even when the person is not physically in possession of the
land, and even when s/he does not have a legal claim to it.10 This was, I’ve
argued, true of indigenous people, who had entitlements to land on which they
lived, even when that entitlement was not encoded in a legal order, defined by
the rule of law.
Indeed, as Hume saw, some social conventions, including conventions
around property, have been incorporated in the legal system, but are not
themselves the product of law. Some have argued that social conventions are
implicit in the idea of a ‘reasonable person’ and other fundamental legal concepts, but of interest to us here are cases where conventions seem to apply to
property directly, in the form of rules about homesteading, squatters’ rights and
‘adverse possession’. Both ‘home-steading’ and ‘squatter’s rights’ embody the
idea that possession over time confers rights to the thing. In the case of ‘homesteading’, the land is either un-owned or owned by the state and the rights are
acquired if the person claims and uses consistently this area over a specified
period of time. In the case of squatter’s rights, possession confers ownership of
property that is neglected. The idea of ‘adverse possession’, which applies
strictly to land or real estate, rewards a person who possesses, uses or cares
for property (legally owned by another) for a significant period of time by giving
them property rights to it. It also prevents litigation over ownership by long-lost
owners, because it represents a statute of limitations on rights to neglected or
unused property. These practices are formalized in most common law legal
systems, and so do not directly contradict the statist view of property, but they
10 This view, which I shall call the social convention view, is supported by recent psychological
and anthropological work, which suggests that property norms are understood by very young
children, who are unable to explain or articulate the precise basis or theory of property. Chris
Bertram has argued, in a very compelling article (2013), that this level of intuitive understanding
about a very abstract concept like property suggests that humans have a basic ‘grammar’
around property in a similar way that humans have a native capacity to learn language. That
property is a social convention is fairly undeniable, but it seems that people have a natural
capacity to understand property conventions and rules without any tutelage or instruction in
this abstract concept, and that relatively complex conventions with respect to property can
develop without explicit backing from the state.
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represent basic social conventional understandings of the appropriate relationship between a person and thing that can give rise to an entitlement to it.
There is though still a question about how precisely these social conventions
(which undoubtedly create expectations) can be said to generate entitlement.
And there I’ve argued that the central concept is a fairness one: that it is unfair
when people make investments, in the way that they organize their lives, on the
basis of widespread social practices, and then these practices, according to
which they have organized their lives, are swiftly altered, and/or not recognized
by a legal regime. This is the same kind of harm that is experienced by the
person who makes decisions on the basis of state policies (such as pursuing an
IB diploma as a basis for further study). However, unlike in legal compensation
cases, it is not possible to identify a duty-bearer who has induced the reliance
interest: the reliance was a normal or natural result of operating under widely
held social practices. And this means that the entitlement can’t really be to
compensation by a specific person or set of persons, but, in the first instance, for
a recognition of the person’s rights, which may give rise to a number of different
duties on the part of many different agents to respect the right in question. This
is the basic idea behind an interest theory of rights.
3 Legitimate expectations and place-related
rights
This brings us to a recent, and plausible deployment of legitimate expectations
arguments – which follows to some extent some of the arguments about property developed by Hume and others – which appeal to the idea of legitimate
expectations, to generate an argument for territorial rights. The main idea is not
to show that people have a right to be compensated when their legitimate
expectations are not fulfilled (or at least that’s not the primary argument), but
to explain people’s interests in having a stable context in which to live their lives
and so generate some kind of right to stability of place. This view focuses on the
role of stability of place, as well as social conventions and practices in orienting
people, which is an important element of their wellbeing, and a background
condition for the exercise of their agency. It is precisely because of this role that
their most fundamental expectations that orient them in their projects and
relationships ought to be protected. The interest thus identified grounds a
claim to a right (on the interest theory of rights), which of course then generates
duties on the part of people to respect and/or protect these rights. How does this
argument go?
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Anna Stilz’s formulation is a complex one in so far as she situates her
argument in Kantian terms and seems to endorse a legitimate-state form of
argument, but also appeals to an occupancy condition which applies to individuals to explain where the state should be located. Of interest to us here is the
idea of occupancy rights. She defines occupancy in the following way:
A person has a right to occupy the territory if (1) he resides there now or has previously
done so, (2) legal residence within that territory is fundamental to the integrity of his
structure of personal relationships, goals, and pursuits, and (3) his connection to that
particular territory was formed through no fault of his own. (2011, p. 585)
There are problems with this formulation which I’ve discussed elsewhere,11 but
what’s interesting for the purposes of this paper is that the right to occupancy is
connected to the importance of place, of residence, to the ‘integrity of his
structure of personal relationships, goals and pursuits’ (Stilz 2011, p. 585). In
more recent work, Stilz has focused on the idea that people have place-related
projects: their individual agency is bound up with the pursuit of particular aims
and projects, which require that they are situated in a particular place. These
place-related projects, which are an important component of individual agency,
explain the individual right of residency (and that a fundamental condition of a
legitimate state is that it is geographically located in areas which its members
legitimately occupy)
My discussion of place-related rights in A Political Theory of Territory builds
on this basic idea but deepens it in two ways. First, on my argument, there are at
least three place–related rights: one that apply to individuals and the other two,
to groups. Three different, place-related rights are identified: a right of residency, which applies to individuals; a right of occupancy, which applies to
groups; and territorial rights, which applies to institutional structures in which
groups are self-determining, such as a state (or sub-state entity like a province).
The right of residency, which is held by individuals, is justified in two related
ways. First, people form relations and attachments with others in a particular
place; individual’s plans and pursuits depend on a stable background framework, and this is provided by security of place. The right of residency explains
11 The main problem is that it is circular: The legitimacy of the state is partially defined by the
occupancy principle, which in turn is defined in terms of legal rights (of residence) in a
legitimate state. What looked like a pre-political principle that a rightful authority should
uphold is converted into a political status that the state confers on its members. I believe that
some of her most recent work is moving away from this statist way of defining occupancy rights,
which would correct the problem.
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why all individuals have a right not to be expelled from the location of their
plans and projects; and is in that sense similar to Stilz’s ‘occupancy right’.
Second, I argue that there is a collective or group right of occupancy, which
isn’t a mere aggregation of individual rights of residency. Rather, individuals
themselves often think of themselves as members of groups, who share a placerelated connection, and see themselves as located within a specific geographical
area, which is properly theirs. On my view, the connection that individuals have
to a place is not simply a connection forged independently by individuals living
in a place, but is a connection experienced by individuals as members of a
group, whose members share a geographical location and identity, which is
bound up with this location, with each other. Building on this basic idea, but
relying on the importance or value of collective self-determination, I argue that
territorial rights are justified in places where people have occupancy rights. But
there are other rights that follow from this analysis: the right not to be forcibly
expelled, for example, which is a wrong not simply because individual rights of
residency are violated, but because expulsion can be profoundly disruptive to
collective identities of people as a particular kind, which in turn is partly defined
by the location of the group. And it can also disempower the group from
exercising robust forms of collective self-determination, which require territorial
concentration.
Both of these arguments for territorial rights, then, appeal to the basic
idea that stability of residence is an important background condition for being
able to make plans and have forward-looking projects and relationships. This
argument – about the significance of place to people and their interests in living
a good life – is historical in the sense that people can only claim entitlement in
the place where they currently live (or have lived recently), if they have lived
there for a significant period of time.
At this point one might object that this argument shouldn’t be conceptualized as a legitimate expectations argument at all. After all, if people have the
interests described, and the interests are strong enough to ground certain rights,
why bother appealing to people’s (legitimate) expectations to explain the
entitlement?
The answer is that, while the right does indeed appeal to a conception of
significant human interests, these interests, and especially their interest in
residency in a particular place cannot be explicated without reference to their
future-oriented expectations, their projects and commitments, which in turn are
structured by norms and conventions in the society that they live in and the
individual right-holders or individual members of the occupancy group. The
interest–based argument explains that people have place-related interests, and
does so by showing that they typically have developed a symbiotic relationship
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with their environment, which is not jut a moment by moment relationship, but
involves planning ahead in the expectation that the plans can be brought to
fruition. The interest-based argument shows why people have a generalized
interest in living somewhere, but in order to understand where the person has
this entitlement, we need to appeal to the expectations that they have developed, which rely on the norms and social conventions that operate in a particular place, which have structured their choices and commitments.
If this is a legitimate expectations argument – as I’ve argued it is – it is
different from the standard legal version of that argument. First, in legal cases,
which make use of legitimate expectations to ground a claim of compensation,
the compensation is not for the expectation itself, but to address the reliance
interest that the person has. In the school boards example that I discussed
earlier in the paper, compensation is related to the reliance interest that the
policy generated – specifically, the school board’s investment in the new
school. This meant that those boards that hadn’t actually gone ahead to
knock down old buildings, but just had a bare expectation that they would
get additional money, ought not to be compensated, but those boards that had
sunken costs in the new policy would be compensated, and the level would be
determined by the reliance interest. Second, in legal compensation cases, the
expectation cannot be simply generated from wide spread social practices, but
it must be possible to identify an agent, individual or collective, who has
induced the reliance interest. This is because it is important to identify a
duty-bearer, who has induced the reliance interest, and from whom compensation can be claimed.
Is there a parallel in the case of land or territory that is taken? Here we are not
talking about the loss of property: it is uncontroversial that people who are
expelled from their property are entitled to compensation for its value; this does
not require a special legitimate expectations argument. What, though, about the
case where a person who does not hold real estate is expelled from an area of
land? Reliance is an important part of the argument, but the reliance is more
global and less specific, pointing to the way in which people, to be oriented to the
world, and have specific projects and plans, rely on certain background conditions, which are unavoidably place-related. The interest grounds moral rights (of
residency and occupancy). To be converted into rights with coercive teeth, these
moral rights need to be recognized by a legal order, which confers civil rights to
reside or live in a place, and social rights to participate in the political order, and
human rights not to be forcibly expelled or ‘ethnically cleansed’ from an area and
to be collectively self-determining there. But people’s entitlement cannot be
cashed out solely in legal terms – they are rights, not because the legal order
created them, but because these interests are sufficiently weighty that they can
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hold others under a duty to respect them, and a just (domestic or international)
order would be organized to realize these rights. The duty, then, is not primarily a
duty of compensation, and it does not require that we are able to identify and
hold accountable the specific person or agent that induced the reliance interest:
rather, we recognize that most people have these place-related interests, and have
developed in the course of living their lives, to rely on some fundamental
conventions and also security of place. Accordingly, the duty in question is a
duty to respect each person’s liberty to remain in a place, not to be unjustly
expelled, to have security of access and control over the place and so on.
The central duty, then, is a duty to respect this right; and in cases where it is not
respected – as in the wrongful expulsion of a person from a particular territory – the
interest generates a right of return. Compensation may come into it in cases where
neither restitution nor return is possible. Note here, though, that this compensation
is not a direct effect of sunken costs. Since almost all our future-directed commitments assume that the person operates in a particular place, it’s hard to calculate
‘reliance loss’ – i. e., the sunken costs associated with the particular projects that
the person has; and the obligations that are triggered by this interest are manifold,
not confined to just compensation claims.12
4 Objections to the above
At this point, the argument must confront at least three powerful objections. The
first two of these objections can be posed more generally, to any legitimate
expectations argument that is not tightly connected to the inducement of a
reliance interests (that is, a legitimate expectations argument that relies on the
social conventions as the source of the expectation); and the third one is
connected specifically to this argument as it applies to land.
4.1 Status quo bias and distributive justice
In the previous section on place-related rights, I argued that over time people
build up expectations around resources and land that are under their control.
These expectations about control over resources and land structure people’s
choices, plans and relationships, and explain why they have a strong interest in
security over place.
12 See here Jeremy Waldron (1989). Waldron advances a ‘wave of duties’ conception in the case
of a violation of rights, on an interest theory of rights.
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One might, however, object that place-related expectations have a serious
status quo bias, which can make them counter-intuitive. Consider, for example,
a very rich person, who is accustomed to living in a large mansion, with
extensive woods and fields, which he uses for his fox-hunting get-togethers.
Does this person have entitlements to the land, independent of the property
right that he or she may have? How does this person’s relationship to land differ
from that of a reindeer-herding Sa’mi who also claims entitlement to large
swathes of land? Doesn’t the legitimate expectations argument have the counter-intuitive consequence that it legitimizes unfair allocations simply on the
grounds that people have come to expect them?13
One way to respond to this objection is to clarify that the place-related rights
that territorial rights arguments confer are not property rights: they are rights of
access, liberty rights to be located in a particular place, conceived of broadly as
a geographical location of the person’s plans, projects and relationships, and a
right not to be expelled or removed from that place. The argument links people
to the particular community location that live in (if they came to reside there,
not unjustly) because that is where the person can pursue relationships that
matter, and the broad opportunity sets that the community offers. It does not
confer a special right on a particular individual to particular objects, over which
he or she has exclusive use, nor does it give the person the right to retain objects
that are connected to specific plans and projects, so that in fact these arguments
do not apply to this kind of case.
The objection however raises an even more serious issue about the scope of
people’s entitlements and possible counter-intuitive distributive unfairness. This
is a serious concern, which I share, but I think this is based on a misunderstanding about how legitimate expectations arguments work. It assumes that any
reasonable (in the sense of epistemically valid) expectation can give rise to
entitlement no matter how extensive, as long as it is reasonably held. But there’s
no reason to think that legitimate expectations arguments do not have an implicit
scope limitation. The crucial feature – for being a legitimate expectations argument – is that the entitlement is grounded, not in fairness or fair treatment, but in
the expectation, and would not exist except for the historically-induced reasonable expectation – but the scope of the entitlement can be limited by consideration of fairness. Moreover, this is not an ad hoc appeal to the value of fairness, in
an attempt to make the legitimate expectations argument more plausible. I argued
earlier that the kinds of expectations that can give rise to entitlements or rights are
not only reasonable expectations in the sense that they satisfy an epistemic
13 This point is made by Lea Ypi (unpublished manuscript). The example comes from her
though it was also put to me, independently, by Alan Patten more than four years earlier.
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condition that they are reasonably held, but that they are legitimate, and I
explicated this in two ways: first they cannot be contrary to basic justice; and,
second, they contain an implicit appeal to fairness. Indeed, I argued that fairness
is a deep principle in any legitimate expectations argument. The underlying value,
I argued, with reference to the IB and A levels exams for entry into university, is
rooted in an appeal to procedural fairness, that is, in not making some people pay
big costs for the choices that they reasonably make under the rules and conventions that have applied to them in the past and apply to other people, but which
change in unexpected ways. So – the rich man in the mansion is not a good
example of the implications of a legitimate expectations argument, because fairness considerations ought to pose a limit to the scope of the entitlements – a limit
defined by a theory of fair shares.14
This more nuanced understanding of legitimate expectations represents a
response to Ypi’s fox-hunting aristocrat in the mansion objection: it can explain
the difference between this (rich) person and the reindeer-herding Sa’mi.
Although the Sa’mi have a way of life that does require much larger areas of
land than would be required by settled farmers or urban people, they are not
taking more than their fair share of all resources, when we consider their way of
life in the round. On the contrary: the Sa’mi are pastoralists who have fewer
material possessions than most people in the society, and it would be an unfair
metric of comparison to focus on the land required rather than all the different
types of resources by which we can compare different people’s allocations.
4.2 Excessive duties
Another objection to the social convention account of legitimate expectations
that I advance above is that this account is problematic because it opens up a
wide range of expectations that people may have that are connected to important plans and projects.15 By including various kinds of social norms as possible
14 An objection to this move is that there are many different theories of a fair distribution. A
Nozickean would not be convinced. That, though, is a separate problem, and is discussed in Meyer
and Sanklecha (2014). They address this conflict by appealing to acceptable ranges of distribution
(rather than distributive justice per se), which allows them to broaden the range of expectations that
are considered legitimate while still taking distributive (fairness) requirements seriously.
15 Some might say that it’s problematic also because we would expect (a) more disagreement
about the reasonableness of the expectation when they are based on underlying social norms
rather than explicit promise or law; (b) uncertainty about who should compensate for disappointed expectations that are based on social conventions in contrast to expectations based on
law or contract.
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bases of expectations, people could end up having a large number of legitimate
expectations about many different kinds of things. If this argument is going to
work we need a principled or coherent way to distinguish between those
reliance interests that we feel ought to be protected and those that we do not
think should be protected.
In order to explore this issue, we should consider the domains in which it is
expected that people make choices and so have life-plans, and yet, we feel that
they should bear a substantial portion of risk, which means that they do not
have legitimate expectations of compensation if the benefit that they expect is
not realized.
Let’s begin with market economies. Almost all capitalist markets assume
that people must bear at least some of the costs of their choices. Indeed,
capitalism has been identified with ‘creative destruction’: both its advocates
and detractors are familiar with the fact that new technologies, productive
innovation, and unanticipated prices can lead companies, indeed whole economic sectors, to go out of business, and to the emergence of an entirely new
method of organization or business. People often make choices that were
rational when they made them: people invest in education or training for skills
that (it is reasonably expected) will lead to a job. However, when they graduate,
it may well turn out that the jobs are either non-existent or much fewer than
anticipated. This could be for reasons that are unrelated to the agent’s decisionmaking powers – that is, the agent made choices that seemed reasonable,
exercised due diligence and so on. Moreover, these disappointed expectations
are not trivial: these choices may reflect large sunken costs as well as opportunity costs; and the failure of these plans may be catastrophic for the individual.
A similar point could be made about marriage. People may reasonably
expect that marriage is a good plan of life: people who are happily married
tend to live longer, be healthier, and marriage, at least for men, is good for their
careers. If someone is happy with someone now, and the person seems to have a
number of good qualities and basic compatibility, marriage can look like a good
step. Yet, it might not turn out well, and that may be for reasons that couldn’t be
predicted earlier. Indeed, a bad marriage can lead to many years of unhappiness
and additional, unnecessary stress.
In neither case do we normally feel that people should be compensated
when these sorts of expectations aren’t fulfilled.16 We might think that there
16 This point is sometimes obscured in normative writing on luck and responsibility that is
overly preoccupied with the image of the gambler. See Ronald Dworkin (2002), Kok-Chor Tan
(2012), and Shlomi Segall (2009). For a very good and realistic discussion of capitalism and its
relationship to luck and agency, see Jeff Spinner-Halev (2017).
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ought to be social policies in place that protect people from being fully exposed
to grave risk, by providing a basic income or unemployment insurance and/or
re-training, but this is normally justified on grounds other than compensation
for legitimate expectations.
Why is it that we feel that people should bear significant costs for these risks
and that compensation is not appropriate? First, it’s not because we think that the
decision or choice was unreasonable. In both cases, the decision involved a kind
of prediction about the future, which was completely reasonable, given the
information at hand. Second, it is not connected to the importance of the interest.
In both cases, the consequences of the expectation not being satisfied could be
very serious for the disappointed person. People who have invested in a skill in
the labour market or a marriage can have a very strong interest in the skill being
utilized and the marriage succeeding. Indeed, they probably have as strong an
interest in these as I was claiming earlier attaches to residency in a place.
It is however related to our understanding of how the basic structure of
society operates, according to which our expectations are mediated. It is a
fundamental feature of a market economy – which is the basis of our economic
system, and which, properly regulated, is the best system that we have so far, in
generating opportunities and wealth, – that the market functions to enable
buyer to meet seller, which means that people produce goods or hone skills in
order to sell the goods or labour to someone else. There is no guarantee that they
will find a buyer. Inherent in this system is that people bear the risk that their
goods or their skills will not be required in the market and so people cannot
have the expectation that they will be compensated for failure.
Similarly, it is a fairly fundamental feature of the institution of marriage in
contemporary liberal-democratic societies that it contains a right of unilateral
exit. This is necessary to ensure that it is based on love and respect for the
interests and autonomy of the other, but there’s always the risk that the other
will fall out of love, or want to get out of the marriage. It may be important to the
success of your life that you stay married to me, but you have no right that I
stay. There can’t be compensation to the disappointed party when the marriage
fails (though there can be just rules of division of assets and some subsidy to a
disadvantaged partner for loss of income) but norms of equality, rights of exit,
and autonomy are fundamental to our commitment to an egalitarian marriage
practice (even if they are not sufficient to ensure that marriages are actually
egalitarian).
For these institutional practices then, guaranteed success is not possible,
and the person ought not to be compensated for the failure of the marriage or
the vagaries of the capitalist marketplace. This is built in to the institutional
design, and it would be a worse institution if there was this guarantee or
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assurance. By contrast, place-related rights of some kind can be guaranteed:
people have a strong interest in being at liberty to remain in a place, where they
have plans and projects and relationships, and they have a strong interest in
exercising some control over the place, because control over resources and land
is fundamental to the continuing pursuit of their projects and relationships and
the exercise of self-determination. There are of course limits to the exercise of
jurisdictional control and limits to the right to remain (it could be justified in
removing people from a place when staying in place is unsafe or demonstrably
in the public interest that the persons move) but these represent limits to the
contours of the right, rather than fundamental features of having the right. In
this case, then, there are legitimate expectations, grounded in interests, that the
institutional order confer security of residence, which doesn’t apply to particular
jobs or to relationships
In the case of marriage and the market, people have reasonable expectations but not legitimate expectations. The difference here turns on a methodological point about how to reason normatively about institutions: we do not
reason directly from a person’s well-being interest to rights, but from the wellbeing interests, broadly conceived, to the ways in which these interests can be
protected within broadly justified institutions and practices, and this structures
not only entitlements and obligations but also legitimate expectations.
At this point we have a response to the concern that relying on social
expectations may open up too many potential claimants, and is an inherently
conservative doctrine as a result. That criticism, while plausible at first blush,
fails to recognize that expectations themselves are mediated through social
institutions which themselves have to be justified.17 This narrows considerably
the range of expectations that could be subject to compensation, and the kinds
of duties that people can be subject to, on the basis of these interests.
4.3 Excessive rights and duties (again)
There is a different version of the excessive rights and duties argument, which is
not posed as an objection, but as a friendly amendment to the place–related rights
argument outlined above. It doesn’t deny place-related attachment; indeed, it
17 I accept therefore the structure of Buchanan’s justificatory argument – though I broaden it to
include social conventions and social institutions more generally, and I don’t think the justification has to take the form that it is required by justice (although of course if we have a broad
enough conception of ‘justice’, to include democracy and other elements, then I could accept
that formulation).
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agrees with the fundamental direction of the argument from interests to entitlements to the requirement that people should be held under duties to protect the
morally significant interests of others, which are partly conceptualized in terms of
their expectations and plans. However, if this argument goes through, it potentially could give rise to the criticism that the place-related focus of the argument
advanced in section three applies to other place-related rights, and this might turn
out to generate excessive duties or to be problematic in other ways.
Cara Nine (forthcoming) has recently advanced the argument that the justification for place-related rights, discussed in section three above, doesn’t only
generate moral rights of residency and occupancy, which recognizes our attachments to large-scale places, by which is meant cultural homelands or countries
as I’ve defined it, but ‘rights to a home’. She supports this with evidence that
shows that moving house by itself represents a harmful instance of displacement; that it is not only perceived as stressful, but it leads to a decrease in
cognitive functionality, which, she argues, is a pro tanto extrinsic harm.
Moreover, the kinds of people who are most likely to be adversely affected are
already vulnerable and poor; and the place-related rights argument advanced
earlier needs to incorporate this evidence.
To some extent, I agree with this argument. I agree that homes may represent objects of place-related attachment and that moving house is stressful. But
here note that many of the problems that Nine lists – problems connected to
decline in cognitive functioning – are both widely experienced and temporary,
especially if the person moves nearby. They are on all fours with the stress
attached to home renovation (especially renovating kitchens and bathrooms),
and similar too to other major life events, both positive and negative, which can
disrupt our cognitive functioning, such as having a baby and the sleep deprivation connected to caring for a newborn. A person can reconstruct their home in a
new location, which makes it different from the long-term disruption of relationships and life-projects involved in expulsion from one’s community. This I argue
has implications for the kind of duties that follow from recognition of this
interest; and these duties need not be excessive.
The moral right of occupancy argument, discussed in section three, was
used to explain the wrong of expulsion. If that argument and Nine’s right to a
home argument are parallel, then, it should justify a right against displacement
from one’s home. But I think there are dis-analogies between the cases, so the
rights and duties generated in the ‘right to a home’ case are weaker than in the
case of expulsion from one’s community and the rights of occupancy that are
violated.
What kinds of rights and duties might be generated by Nine’s argument?
She is not explicit on this, but if there is a right against the standard case of
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such displacement – where tenants are evicted from their homes for failure to
pay rent – it would be incompatible with a market economy in rental housing. I think people do have an interest in preventing home displacement, but
I think it would be even more harmful if we were to destroy a rental market
in housing . (Here I take the view, advanced by Joe Heath, that markets are
primarily justified as third-best non-ideal institutional arrangements; that is,
that we do need such a market.) This leads me to reject the most stringent
view of the right to a home, which would make it analogous to occupancy
rights. Nine’s argument on the importance of a home does, though, seem to
suggest some rights and duties. It could, for example, justify strengthening
tenant rights: it would be a good thing to design rules and enact policies that
ensure that sitting tenants are protected from rapacious landlords and sudden increases in rent, but a strong right against displacement runs up against
what I regard as a morally justified institutional arrangement (rental markets
in housing). This is consistent with the interest-based account of rights that
she and I both accept. On that argument, the question is not only whether
and in what way the frustration of expectations is harmful, but also under
which circumstances this harm is morally significant, and I’ve suggested that
it doesn’t justify a policy which would have the effect of destroying rental
markets in housing (or labour markets), at least not while we live in this
world.
5 Conclusion
In this paper, I have defended the idea of legitimate expectations regarding
land. I have shown that we have tend to think that legitimate expectations
should be respected, in a way that is consistent with a conception of the person
as reasonable, capable of moral agency, and also connected to people and
projects through various commitments, which are symbolically and materially
rooted in particular places. I have argued that individuals have a strong
interest – an interest that is sufficiently weighty that it imposes obligations
on other people – to protect stability of place, and I distinguished that interest
in stability from related important interests (in marriage or in jobs) that we
also have interests in.
I defended an account of legitimate expectations that is distinct from justice
but is not a mere legal account: I have argued that social conventions can also
give rise to legitimate expectations. Indeed, I take it that the main theoretical
contribution of this paper is that, through examining legitimate expectations in
relation to land, we can see that the relationship between rights and
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entitlements and expectations is different from – indeed, the inverse of – the
way in which it is typically understood by Rawls and many other contemporary
theorists. It is commonly assumed that institutions give rise to entitlements and
legitimate expectations, but I argue, au contraire, that the existence of legitimate
expectations – once these are properly conceptualized and understood – can
give rise to entitlements; and that fairness is an important justificatory value in
explaining why we give importance to legitimate expectations, and can also set
limits on the entitlements generated.
I also address some powerful objections to the legitimate expectations
argument, both conceptual and in terms of the implications of the social
convention line of argument, and show how my argument can address it. The
interest in stability and fairness that underlies the social convention argument can generate a wide range of duties, which is not surprising, if this
does indeed represent a morally significant interest of persons, but these may
need to be balanced against other weighty interests of the person and the
community, and the value of fairness that is also at the heart of the
argument.
Acknowledgements: The author is grateful to Alex Brown, Fergus Green, Patti
Lenard, David Miller, Pranay Sanklecha, and the anonymous referees and the
editors of this journal for helpful comments on an earlier version of this paper.
She is also grateful to Steve Larin for research assistance and the Social Science
and Humanities Research Council of Canada (SSHRCC) for a research grant in
support of this work.
Funding: Social Science and Humanities Research Council of Canada, (Grant/
Award Number: ‘81240’).
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