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Validity of the Just Case Verdict: A Philosophical Argument

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18/05/20 Law Reference this

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Validity of the Just Case Verdict: A Philosophical Argument

 On October 9, 1967 in the state of Wisconsin, the Shoreland Zoning Ordinance Number 24 became effective, prohibiting alteration of the natural character of land near navigable waters (Just v. Marinette County 1973). This caused conflict with the Just’s who’s property comprised wetlands for the purpose of personal and resale use through housing developments (Just v. Marinette County 1973). This resulted in a court case, Just v. Marinette County, which argued whether the wetland- filling restrictions were unconstitutional due to the resulting regulatory taking of the Just’s property without compensation (Just v. Marinette County 1973). Additionally, the Just’s argued that their land was severely depreciated in value for what it could have been if filled1. Though loss of value is considered for whether the restriction is a regulatory taking, the court decided that the restrictions were constitutional (Just v. Marinette County 1973). Destroying the natural character of the wetland for human habitation was not a reasonable use for the land, even if more economical, because it would have degraded public health, safety, convenience, general welfare, and overall caused a public harm (Just v. Marinette County 1973). The validity of the court’s ruling lies in whether development of the Just’s wetland’s falls within their property rights and thus requires compensation. Property rights are known to have three main principles: the right to transfer a thing at will, the right to use a thing, and the right to use it exclusively (Goodin 1990, 404). The following argument asserts that development of the wetlands by the Just’s constitutes destruction and that the property right principles do not imply the right to destroy. Thus, development of the wetlands does not constitute a right of the Just’s, but rather an interest, and any depreciation of value for future developmental endeavors caused by the zoning ordinance need not be compensated.

 According to Robert Goodin, the right to transfer a thing at will constitutes a core property right (Goodin 1990, 404). Under this, it is perfectly reasonable for the Just’s to transfer their property through sale to interested buyers. However, the Just’s desire to develop, or as the court insinuates, destroy (Just v. Marinette County 1973), their property for future transfers. Though the right to destroy is not exclusively mentioned as a core property right, the right to transfer may implicitly suggest the right to destroy, thus giving the Just’s reasonable justification for compensation (Goodin 1990, 405-406). However, according to Goodin, this is not the case (Goodin 1990, 405-406). The right to transfer can be argued to imply the right to destroy through the logic of two claims: that the right to transfer implies to the right to alienate, as one is cutting their bond to the property and thus alienating themselves, and that destruction of property acts as alienation since one is also cutting their bond to their property (Goodin 1990, 405-406). It can thus be inferred that since the right to transfer implies the right to alienate and the right to destroy implies the right to alienate, the right to transfer implies the right to destroy (Goodin 1990, 405-406). Under this logic it would seem as if the Just’s are fully in their rights to destroy the original characteristics of their property, and the zoning restriction infringes on that right. This argument, however, has two main flaws according to Goodin (Goodin 1990, 405-406). Firstly, under the above claims, the assertion that the right to transfer implies the right to destroy is faulty (Goodin 1990, 405-406). For the right to transfer to imply the right to destroy, the second claim must be changed to: the right to alienate implies the right to destroy (Goodin 1990, 405-406). The propositions will then fit the model of transfer implies alienation and alienation implies destruction, thus transfer implies destruction, as opposed to transfer implies alienation and destruction implies alienation, thus transfer implies destruction (Goodin 1990, 405-406). With this proper claim, whether it is correct, and that destruction is a right extended from the right to transfer, requires proof of its reasonability (Goodin 1990, 405-406). If reasonable, according to Goodin, the logic suggests that restricting the way that property is alienated is impossible without limiting one’s right to alienate their property, and thus limiting ones right to transfer (Goodin 1990, 405-406). The Just’s would then have the right to transfer and alienate their property as they see fit, with destruction as a right that can’t be infringed upon by a zoning restriction without compensation. To determine the reasonableness of the proposition Goodin asks if limiting the right to destroy infringes upon the right to alienate (Goodin 1990, 405-406). He argues and I agree that it does not, making the proposition false (Goodin 1990, 405-406). As an example, Goodin articulates how divorce law allows one to alienate from their spouse, but it does not grant the right to destroy them even if one tried (Goodin 1990, 405-406). And if one attempted to destroy their spouse, they would be put in jail (Goodin 1990, 405-406). This case shows that limiting one’s right to destroy does not infringe upon their right to alienate and renders the claim incorrect and the argument of destruction as a right, false (Goodin 1990, 405-406). Additionally, the first claim that the right to transfer indicates the right to alienate is also faulty (Goodin 1990, 405-406). A right to transfer does imply a right to alienate, however the object being moved doesn’t diminish in the process, just as money moved between accounts doesn’t lose value (Goodin 1990, 405-406). In the case of the Just’s, development would alter the original character of the land, diminish it, and represent an action that surpasses the right of transfer. Both propositions thus insinuate that destruction is not a function of transfer or alienation and is not a property right (Goodin 1990, 405-406). The court’s decision for no compensation is correct, as the Just’s property rights were not restricted since they have no right to destroy their land though development.

 Goodin also analyzes the probability of the right to destroy as an extension of the core property right to use. The right to use can be extended to the right to use something as one see’s fit (Goodin 1990, 407-408). This can additionally imply the right to abuse, and thus the right to destroy (Goodin 1990, 407-408). Under this reasoning, any restriction of use, abuse, and thus destruction can be reasonably seen as a restriction of one’s right to use (Goodin 1990, 407-408). By developing their land, the Just’s are using, or abusing, as they see fit, and are fully in their rights to do so. The ordinance is therefore restricting this right and compensation is required. Goodin, however, shows this argument to be false through articulating that the right to use is incompatible with the right to destroy, by suggesting that the two are not linked (Goodin 1990, 407-408). Goodin states that the right to use and abuse is not equal to a right to destroy because using is a process and destruction is an end-state, thus linking the two together is wrong (Goodin 1990, 407-408). Restricting people’s use of their own property does infringe on their rights, but it is possible to require or restrict certain end-results without disrupting the process of using (Goodin 1990, 407-408). If an end-result is banned, such as the inability to fill wetlands in the case of the Just’s, the ability to use as seen fit may contingently be restrained, but overall the right still exists (Goodin 1990, 407-408). If they were able to fill in the land while holding the property but by the end return it to its previous wetland ecosystem, then they are perfectly able to do so. Though it is impossible for the Just’s to return developed land to a wetland, it does not change the fact that they have such use rights but are contingently unable to exercise them. Under this reasoning destruction is not a property right and the right to use and abuse is not infringed upon by the zoning ordinance, thus no compensation is required.

 Additionally, some goods naturally diminish with use and are destroyed, not through purposeful abuse, but using them ordinarily (Goodin 1990, 408-409). With this, a right to use extends to a right to ‘use up’ and therefore implies destruction (Goodin 1990, 408-409). Locke describes the right to use land for cultivation, which includes the right to clear and thus use up through destruction (Goodin 1990, 407-408). Goodin writes that this type of use and destruction is allowable, but not when it’s unnecessary (Goodin 1990, 407-408). Applied to the Just’s, developing land for the economic value implies clearing and destruction of the wetland that previously existed. The right to clear wetland for the purpose of housing developments was not viewed as a reasonable argument for compensation for the courts because their lives were not injured by the restrictions (Just v. Marinette County 1973). The Just’s kept access to the land, reaping any non- developmental benefits, and any devaluation came from the inaccessibility of future revenue through development which would have been obtained through non- permissible unnecessary destruction. If the Just’s relied in the land for crop cultivation or their livelihood were put into danger through the restriction, then this would infringe on their right to use up and compensation would be necessary. Lockean theory further enhances this premise through the idea of preservation. Locke states that there should be enough and as good of property left for others as originally found, and any appropriation of property that leaves the next owner worse off is not permissible, suggesting a duty of each property owner of preservation (Nozick 2017, 175-176). With this preservationist duty, it is unreasonable to expect things to be exactly as they were originally, as mention above, use can naturally diminish property such as with a rented car where the original gas will have been used and cannot be identically replenished (Goodin 1990, 408-409). The reasonable argument arises that leaving goods as we found them is the same as interchanging equivalent goods in the same state as before (Goodin 1990, 407-408). Though it could be argued that the Just’s are changing the good of a wetland for the good of housing, this is not consistent with leaving an equivalent state. Leaving an equivalent good would entail for example, leaving a rental car the same as when first picked up, the gas is filled to the same amount though may be a different type of fuel (Goodin 1990, 407-408). In the case of the Just’s, development is not preserving the wetland as it was before, providing an interchangeable equivalent good, and would be extending beyond the permissible amount of clearing, therefore, there is no right to compensation.

 The right to exclude can also be viewed as a right to destroy, when an item is owned in perpetuity such as the Just’s acreage (Goodin 1990, 413-414). To perpetually exclude a thing is to make is forever unavailable, just as destruction of that thing would be (Goodin 1990, 413-414). In this way destruction can be argued as a right since the Just’s own the land perpetually, but according to Goodin this is not true (Goodin 1990, 413-414). Goodin states that giving someone the right to exclude perpetually does give them the right to destroy, as regardless of what they do that thing is unavailable to society (Goodin 1990, 413-414). It can further be inferred then that whatever the reason for allowing it to be lost to society should lead people to accept or be indifferent to whether it is destroyed or not. This though is not necessarily the case due to Locke’s theory of the duty to preserve (Nozick 2017, 175-176). Take for instance Goodin’s example of the Mona Lisa (Goodin 1990, 414). Many people take pleasure in knowing that the Mona Lisa still exists and would be upset of it were to be destroyed (Goodin 1990, 414). Even if it could be tolerated that the Mona Lisa be moved to a private collection not available for people to see, it could equally be insisted that the new owner not destroy it (Goodin 1990, 414). This leads to the idea that with the ability to exclude perpetually the owner is given the duty to not destroy (Goodin 1990, 414). Since preservation and perpetual exclusivity can co-exist shows that the right to exclusively use in perpetuity does not imply the right to destroy (Goodin 1990, 414). Thus, the Just’s are not required compensation because with their exclusive perpetuity they also have a duty to preservation, and do not necessarily have the right to destroy through development.

 From the above argument it can be shown that in the Just v. Marinette County court case the verdict of no compensation was correct. Though the Just’s argued that the zoning restrictions placed on their property without compensation were unconstitutional, the views of Locke and Goodin further support the court’s decision. Goodin and Locke show that the core rights to transfer, use, and exclude, do not imply the right to destroy, therefore the Just’s destroying their property by way of development is not an infringed property right that requires compensation.


  • Goodin, Robert E. 1990. “Property Rights And Preservationist Duties”. Inquiry 33 (4): 401-432. doi:10.1080/00201749008602232.
  • Just v. Marinette County. 1973
  • Nozick, Robert. 2017. Anarchy, State, And Utopia. Oxford: Blackwell Publishing.
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