Property

This page deals with property as ownership rights. For information about property in the performing arts, see prop. For information about other sorts of property, see properties.

Use of the term

The concept of property or ownership has no single or universally accepted definition. Like other foundational concepts which have great weight in public discourse, popular usage varies broadly. Various scholarly communities (e.g., law, economics, anthropology, sociology) may treat the concept more systematically, but their definitions likewise vary within and between fields.

In common use, property is simply 'one's own thing' and refers to the relationship between individuals and the objects which they see as being their own to dispense with as they see fit. Scholars in the social sciences frequently conceive of property as a 'bundle of rights and obligations.' They stress that property is not a relationship between people and things, but a relationship between people with regard to things. Property is often conceptualized as the rights of 'ownership' as defined in law.

General characteristics

Modern property rights conceive of ownership and possession as belonging to legal individuals, even if the legal individual is not a real person. Thus, corporations, governments and other collective forms of ownership are framed in terms of individual ownership. Exceptions to this pattern include the "commons", which belong to a defined community, and the "public domain", to which access is unlimited. Property rights are found in the oldest laws written down, and equate the expectation of use or profit to some payment from the very beginning. Modern property rights can be said to begin with the transition from ownership by entities as being the primary form of property right, to the theory that property rights are to promote the general good, and specifically encourage economic development and utilization of property.

Property is usually thought of in terms of a bundle of rights as defined and protected by the local sovereignty which itself, by definition, has "exclusive right to exercise supreme authority" concerning that property. If ownership gave supreme authority it would be sovereignty not ownership. They are two different concepts. In other words, "I own this so I can do what I want with it" is not how the concepts of ownership or property work.

Traditionally, that bundle of rights includes:

control use of the property
benefit from the property (examples: mining rights and rent)
transfer or sell the property
exclude others from the property.

Legal systems have evolved to cover the transactions and disputes which arise over the possession, use, transfer and disposal of property, most particularly involving contracts. Positive law defines such rights, and a judiciary is used to adjudicate and to enforce.

In his classic text, "The Common Law", Oliver Wendell Holmes describes property as having two fundamental aspects. The first is possession, which can be defined as control over a resource based on the practical inability of another to contradict the ends of the possessor. The second is title, which is the expectation that others will recognize rights to control resource, even when it is not in possession. He elaborates the differences between these two concepts, and proposes a history of how they came to be attached to individuals, as opposed to families or entities such as the church.

According to Adam Smith, the expectation of profit from "improving one's stock of capital" rests on private property rights, and the belief that property rights encourage the property holders to develop the property, generate wealth, and efficiently allocate resources based on the operation of the market is central to capitalism. From this evolved the modern conception of property as a right which is enforced by positive law, in the expectation that this would produce more wealth and better standards of living.

Socialism's fundamental principles are centered on a critique of this concept, stating, among other things, that the cost of defending property is higher than the returns from private property ownership, and that even when property rights encourage the property-holder to develop his property, generate wealth, etc., he will only do so for his own benefit, which may not coincide with the benefit of other people or society at large (and which often goes directly against the interests of non-property-holders). This is still a modern theory of property, however, in that it argues based on superior utility of result.

Communism argues that only collective ownership through a polity, though not necessarily a state, will assure the minimization of unequal or unjust outcomes and the maximization of benefits, and that therefore all, or almost all, private property should be abolished.

Both communism and (sometimes) socialism have also upheld the notion that private property is inherently illegitimate. This argument is centered mainly on the fact that the creation of property involves the use of natural resources, therefore private property in general necessarily involves private property over land. If private property over land is illegitimate (for example, due to the fact that it was first instituted by force), then it follows that private property in general is illegitimate.

Not every person, or entity, with an interest in a given piece of property may be able to exercise all of the rights mentioned a few paragraphs above. For example, as a lessee of a particular piece of property, you may not sell the property, because the tenant is only in possession, and does not have title to transfer. Similarly, while you are a lessee the owner cannot use his or her right to exclude to keep you from the property. (Or, if he or she does you may perhaps be entitled to stop paying rent or perhaps sue to regain access.)

Further, property may be held in a number of forms, e.g. joint ownership, community property, sole ownership, lease, etc. These different types of ownership may complicate an owner's ability to exercise his or her rights unilaterally. For example if two people own a single piece of land as joint tenants, then depending on the law in the jurisdiction, each may have limited recourse for the actions of the other. For example, one of the owners might sell his or her interest in the property to a stranger that the other owner does not particularly like.

Theories of property

Anthropology studies the diverse systems of ownership, rights of use and transfer, and possession under the term "theories of property". Western legal theory is based, as mentioned, on the owner of property being a legal individual. However, not all property systems are founded on this basis.

In every culture studied ownership and possession are the subject of custom and regulation, and "law" where the term can meaningfully be applied. Many tribal cultures have a "corporate" theory of ownership, meaning that ownership is by collective groups: tribes, families, associations and nations. For example the 1839 Cherokee Constitution frames the issue in these terms:

Sec. 2. The lands of the Cherokee Nation shall remain common property; but the improvements made thereon, and in the possession of the citizens respectively who made, or may rightfully be in possession of them: Provided, that the citizens of the Nation possessing exclusive and indefeasible right to their improvements, as expressed in this article, shall possess no right or power to dispose of their improvements, in any manner whatever, to the United States, individual States, or to individual citizens thereof; and that, whenever any citizen shall remove with his effects out of the limits of this Nation, and become a citizen of any other government, all his rights and privileges as a citizen of this Nation shall cease: Provided, nevertheless, That the National Council shall have power to re-admit, by law, to all the rights of citizenship, any such person or persons who may, at any time, desire to return to the Nation, on memorializing the National Council for such readmission.

Communal Property systems describe ownership as belonging to the entire social and political unit, while corporate systems describe ownership as being attached to an identifiable group with an identifiable responsible individual: generally a family. The Roman property law was based on such a corporate system, for example.

Different societies may have different theories of property for differing types of ownership, as the above paragraph makes clear: land is collectively owned, improvements are individually owned, but may not be transferred outside of the community. Currently, anthropological theory relates the kind of kinship system - whether through one or both parents - with certain property theories, though this idea is in dispute. Essentially, it is very common among property systems to have the community own property where kinship is reckoned both through patrilineal and matrilineal systems, but property is owned by the family if only one method of reckoning is used. Exceptions to this rule have been documented, but it remains the prevailing assumption of tribal ownership.

Pauline Peters argued that property systems are not isolable from the social fabric, and notions of property may not be stated as such, but instead may be framed in negative terms: for example the taboo system among Polynesian peoples.

Property in English philosophy

In medieval and Renaissance Europe the term "property" essentially referred to land. Much rethinking was necessary in order for land to come to be regarded as only a special case of the property genus. This rethinking was inspired by at least three broad features of early modern Europe, the surge of commerce, the breakdown of efforts to prohibit interest (so-called "usury"), and the development of centralized national monarchies.

Several of the most influential intellectuals who responded to these three trends and rethought the whole issue of private property were English.

Thomas Hobbes 1600's

The principal writings of Thomas Hobbes appeared between 1640 and 1651—during and immediately following the war between forces loyal to King Charles I and those loyal to Parliament. In his own words, Hobbes' reflection began with the idea of "giving to every man his own," a phrase he drew from the writings of Cicero. But he wondered: How can anybody call anything his own? In that unsettled time and place it perhaps was natural that he would conclude: My own can only truly be mine if there is one unambiguously strongest power in the realm, and that power treats it as mine, protecting its status as such.

James Harrington 1600's

A contemporary of Hobbes, James Harrington, reacted differently to the same tumult; he considered property natural but not inevitable. Harrington, author of Oceana, may have been the first political theorist to postulate that political power is a consequence, not the cause, of the distribution of property. He said that the worst possible situation is one in which the commoners have half a nation's property, with crown and nobility holding the other half—a circumstance fraught with instability and violence. A much better situation (a stable republic) will exist once the commoners own most property, he suggested.

In later years, the ranks of Harrington's admirers would include American revolutionary and founder John Adams.

Robert Filmer 1600's

Another member of the Hobbes/Harrington generation, Sir Robert Filmer, reached conclusions much like Hobbes', although chiefly through Biblical exegesis and without, it must be said, anything akin to the intellectual depth of a Hobbes or a Harrington. Filmer said that the institution of kingship is analogous to that of fatherhood, that subjects are but children, whether obedient or unruly, and that property rights are akin to the household goods that a father may dole out among his kids—his to take back and dispose of according to his pleasure.

John Locke 1600's

In the following generation, John Locke sought to answer Filmer, creating a rationale for a balanced constitution in which the monarch would have a part to play, but not an overwhelming part. Since Filmer's views essentially require that the Stuart family be uniquely descended from the patriarchs of the Bible, and since even in the late seventeenth century that was a difficult view to uphold, Locke attacked Filmer's views in his First Treatise on Civil Government, freeing him to set out his own views in the Second Treatise on Civil Government. Therein, Locke imagined a pre-social world, the unhappy residents of which create a social contract. They would, he allowed, create a monarchy, but its task would be to execute the will of an elected legislature.

"To this end" he wrote, meaning the end of their own long life and peace, "it is that men give up all their natural power to the society they enter into, and the community put the legislative power into such hands as they think fit, with this trust, that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty as it was in the state of nature."

Even when it keeps to proper legislative form, though, Locke held that there are limits to what a government established by such a contract might rightly do.

"It cannot be supposed that [the hypothetical contractors] they should intend, had they a power so to do, to give any one or more an absolute arbitrary power over their persons and estates, and put a force into the magistrate's hand to execute his unlimited will arbitrarily upon them; this were to put themselves into a worse condition than the state of nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it, whether invaded by a single man or many in combination. Whereas by supposing they have given up themselves to the absolute arbitrary power and will of a legislator, they have disarmed themselves, and armed him to make a prey of them when he pleases..."

Note that both "persons and estates" are to be protected from the arbitrary power of any magistrate, inclusive of the "power and will of a legislator." In Lockean terms, depradations against an estate are just as plausible a justification for resistance and revolution as are those against persons. In neither case are subjects required to allow themselves to be a prey.

William Blackstone 1700's

In the 1760s, William Blackstone sought to codify the English common law. In his famous Commentaries on the Laws of England he wrote that "every wanton and causeless restraint of the will of the subject, whether produced by a monarch, a nobility, or a popular assembly is a degree of tyranny."

How should such tyranny be prevented or resisted? Through property rights, Blackstone thought, which is why he emphasized that indemnification must be awarded a nonconsenting owner whose property is taken by eminent domain, and that a property owner is protected against physical invasion of his property by the laws of trespass and nuisance. Indeed, he wrote that a landowner is free to kill any stranger on his property between dusk and dawn, even an agent of the King, since it isn't reasonable to expect him to recognize the King's agents in the dark.

Contemporary

Among contemporary political thinkers who believe in individual human rights, and who believe that the right to own property, and to enter into contracts, is within that realm of rights, there are two schools of thought about John Locke. There are, on the one hand, ardent Locke admirers, such as W.H. Hutt, who in 1956 praised Locke for laying down the "quintessence of individualism." On the other hand, there are those such as Richard Pipes who think that Locke's arguments are weak, and that undue reliance thereom has weakened the cause of individualism in recent times. Pipes has written that Locke's work "marked a regression because it rested on the metaphysical concept of Natural Law rather than" upon Harrington's more sophisticated sociological framework.

In contrast to the figures discussed in this section thus far, David Hume lived a relatively quiet life within an England that had settled down to a relatively stable social and political structure. He lived the life of a solitary writer until 1763 when, at 52 years of age, he went off to Paris to work at the British embassy.

In contrast, one might think, to his outrage-generating works on religion and his skeptical views in epistemology, Hume's views on law and property were quite conservative.

He did not believe in hypothetical contracts, or in the love of mankind in general, and sought to ground politics upon actual human beings as one knows them. "In general," he wrote, "it may be affirmed that there is no such passion in human mind, as the love of mankind, merely as such, independent of personal qualities, or services, or of relation to ourselves." Existing customs should not lightly be disregarded, because they have come to be what they are as a result of human nature. With this endorsement of custom comes an endorsement of existing governments, because he conceived of the two as complementary: "A regard for liberty, though a laudable passion, ought commonly to be subordinate to a reverence for established government."

These views led to a view on property rights that might today be described as legal positivism. There are property rights because of and to the extent that the existing law, supported by social customs, secure them. He offered some practical home-spun advice on the general subject, though, as when he referred to avarice as "the spur of industry," and expressed concern about excessive levels of taxation, which "destroy industry, by engendering despair."

Types of property

Most legal systems distinguish between different types (Estate in land, Real estate, Real property) of property, especially between land and all other forms of property. They also often distinguish between tangible and intangible property as well.

In common law, property is divided into:

real property - interests in land and improvements thereto
personal property - interests in anything other than real property

Personal property in turn is divided into tangible property (such as cars, clothing, animals) and intangible or abstract property (stocks, bonds, bank deposits, derivatives, options, futures, patents, copyrights, trademarks, etc.), which includes intellectual property (though some disagree with the use of the term intellectual property).

What can be property?

The two major justifictions of original property, or homesteading, are effort and scarcity. John Locke emphasized effort, "mixing your labor" with an object, or clearing and cultivating virgin land. Benjamin Tucker preferred to look at the telos of property, i.e. What is the purpose of property? His answer: to solve the scarcity problem. Only when items are relatively scarce with respect to people's desires do they become property.[1] For example, hunter-gatherers did not consider land to be property, since there was no shortage of land. Agrarian societies later made arable land property, as it was scarce. For something to be economically scarce, it must necessarily have the exclusivity property - that use by one person excludes others from using it. These two justifications lead to different conclusions on what can be property. Intellectual property - non-corporeal things like ideas, plans, orderings and arrangements (musical compositions, novels, computer programs) - are generally considered valid property to those who support an effort justification, but invalid to those who support a scarcity justification (since they don't have the exclusivity property.) Thus even ardent propertarians may disagree about IP.[2] One's body is one's property by either standard.

Many things have existed that did not have an owner, sometimes called the commons. The term "commons," however, is also often used to mean something quite different: "general collective ownership" - i.e. common ownership. Also, the same term is sometimes used by statists to mean government-owned property that the general public is allowed to access. Law in all societies has tended to develop towards reducing the number of things not having clear owners. Supporters of property rights argue that this enables better protection of scarce resources, due to the tragedy of the commons, while critics argue that it leads to the exploitation of those resources for personal gain and that it hinders taking advantage of potential network effects. Things today which do not have owners include: ideas (except for intellectual property), seawater (except for pollution laws), parts of the seafloor (see United Nations Convention on the Law of the Sea for restrictions), animals in the wild, celestial bodies and outer space, and land in Antarctica.

The living human body is, in most modern societies, considered something which cannot be the property of anyone but the person whose body it is. This is in contradistinction to chattel slavery. It also presents problems for societies that aim to abolish all property (if you do not own your own body, then who does?).

In many ancient legal systems (e.g. early Roman law), religious sites (e.g. temples) were considered property of the God or gods they were devoted to. However, religious pluralism makes it more convenient to have religious sites owned by the religious body that runs them.

Intellectual property and air (airspace, no-fly zone, pollution laws, which can include tradeable emissions rights) can be property in some senses of the word.

Who can be an owner?

In some societies only adult men may own property. In other societies (such as the Haudenosaunee), property is matrilinear and passed on from mother to daughter. Legal fictions, such as corporations, trusts, religions (or their gods), and nations (or governments) own property in various societies past and present.

External links and references

Part II: Personal Property, Money and Finance]