THE THEORIES OF PROPERTY A. A Natural Right to Property B. Positivism an !on"eptualism !. # tilitarianism $. Relational Relational !on"eptions o% Property Propert y E. Neo&!on"eptualism an #tilitarianism INTRO$#!TION The sense of having and the desire to acquire property exclusively exclusively continues to dominate many modern cultures. Monopolization of the world’s resources and the desi desirre to own own and and cont contrrol is the the back backbo bone ne of the the cur current rent soci social al and and econ econom omic ic ideology. Property is social dynamic mutable! mercurial and value laden! it forms the primal core of most social activity in the modern world.
Private property has become important dominant form of property relationship in the modern capitalist world where it promotes liberalists! laissez"faire society whereby indivi individua duall have have the rights rights to accum accumula ulate te prope propert rty y and wealth wealth for their their exclu exclusiv sive e means. WHERE DO PROPERTY RIGHTS COME FROM? Property rights come from culture and community. # person living totally apart from others! on a remote island! does not need to worry aboutproperty rights. $hen people come together! however! the need for speci%c arrangements about property ownership becomes apparent. This group or community then de%nes and and enfo enforrces ces rule rules s of acce access ss to the the bene bene%t %ts s that that come come from from owni owning ng land land or other property. WHO REALLY OWNS MY PROPERTY? &This land is mine! mine to use and en'oy! mine to treat as ( wish!) is a common sentiment among many owners concerning their rights to land. This is called the *human territorial imperative.* imperative.* +arious actions by governments and courts in recent years suggest that private owners’ propertyrights are shared with the public and that these rights are limited and can change over time. $e are all part of a society that de%nes our rights and has the power to rede%ne them over time. WHAT ARE PROPERTY RIGHTS? , Prop Proper erty ty righ rights ts esta establ blis ish h relat elatio ions nshi hips ps amon among g part partic icipa ipant nts s in any any soci social al and and econom economic ic system system.. *Prope *Property rty** is actual actually ly the stream stream of bene%t bene%ts s from from a partic particula ularr resource. The *right* to that stream of bene%ts is an expression of the relative power of the bearer. -wnership of a property right commands certain responses from other people that are enforced by the government government and culture.
, Proper operty ty righ rights ts are are a func functi tion on of what what othe others rs are are will willin ing g to ackn acknow owle ledg dge. e. # property owners actions are limited by the expectations and rights of other people! as formally sanctioned and sustained in law. The boundary between an obligation and a right varies. Patterns of rights and obligations re/ect prevailing 'udgments about fairness! based on peoples values. , Property rights can be likened to a bundle of sticks! with each stick representing a right! or a stream of bene%ts .The bundle expands as sticks are added and it contracts as they are taken away. (mportant sticks! for example! may be the right to sell! to mortgage! to subdivide! to lease! and to grant easements. 0overnment 0overnment has the overall responsibility to protect public health and safety! and to promote general welfare through selective exercise of discretion that sustains quality of life. (n addition to the form formal al righ rights ts of gove goverrnmen nment! t! comm commun unit itie ies s can can us use e othe otherr powe powers rs to in/u in/uen ence ce priv privat ate e prop proper erty ty owner owners. s. Thes These e othe otherr powe powers rs incl includ ude e publ public ic sp spen endi ding ng!! publ public ic ownership power! and public opinion. 1rom a historical point of view! it appears that the rights we hold in property spring from society. (ndividuals may believe that their rights are 0od"given or endowed by nat natural ural law law! but but in prac practtice! ice! the natur ature e of ones nes righ ights dep depends ends upo upon the interpretations accepted by the society in which we live. 2ights are real only when the sovereign power or government! which acts as the agent of society! recognizes them and is willing to defend and enforce them. WHY ARE PROPERTY RIGHTS IMPORTANT? Property rights are culturally de%ned and enforced and because di3erent groups gain and lose power! no one can be certain how the current scope go to broaden public powers over private property. The interests of di3erent groups vary greatly. Those seeing private ownership as an opportunity for making money and acquiring wealth have obvious reasons for trying to stop or reverse the trend toward more public power. -thers! who view land as a scarce and fragile resource! the use of which is closely intertwined with community concerns! argue for even more public supervision. Mostly attitudes lie between these two points. $ith the prospect of stronger demands and pressures for public programs to direct land use! individual owners may very well fear that attitude changes will strip them of certain rights. # growing sentiment for wider acceptance of a public trust view of rights calls for recognition that the rights en'oyed by owners of private property are balanced by their responsibilities. (t is to societys advantage that owners use land for productive purposes. -wners have the responsibility to use land! or other streams of bene%ts! in ways that do not cause in'ury or loss of bene%ts to others or work against the basic interests of others in the community. 4ist 4istor ory y sh show ows s that that prop proper erty ty righ rights ts have have evol evolve ved d over over tim time. -ur -ur recog ecogni niti tion on of property rights has not been linear! but schizophrenic and dynamic in nature.
-n one hand! we %rmly believe that people should be able to do what they want with the prope property rty they they own. own. The desir desire e to maint maintain ain strongp strongpro roper perty ty rights rights prote protecti ction on is based not only on utilitarian grounds! but also on fairness grounds. -n the other hand! we hold an equally strong conviction that there is a public interest in how property is used! and at some point! the publics interest outweighs the individuals rights. Property Property is important. 5elieved by some to be a keystone right! or even the core of liberty!property lies at the foundation of both contract and tort law. law. #s a legal term! prope property rty is prom promine inent nt in many many doctr doctrine ines s and statu statutes tes.. (mpor (mportan tantly tly!! in contra contrast st to contractual rights that avail only against other parties to an agreement! property rights avail against the rest of the world! irrespective irrespective of consent. 4ence! classifying an interest as property has far"reaching implications in our legal system. # simple example demonstrates the power and importance of property. property. 6onsider the conveyance of an automobile. # contract can su7ciently su7ciently allocate legal rights between 5uyer and 8eller and! as between them! can render property law redundant. The The 5uyer and 8eller! however! however! have no contractual relationship relationship with third third parties who may covet the automobile. 4ere! as between people out of contractual reach from one another! property is dominant. 5ecause it is practically impossible for contracts to arrange most of societys relationships! property law determines most of the legal interactions regarding assets among people. 9et! property law often seems to su3er from a characteristic disease of legal categories everyone knows what it is! but no one can de%ne it. :espite the recent renaissance of property as a sub'ect of academic inquiry! the %eld %eld seems seems to be in insolu insoluble ble theor theoreti etic c dis disar array ray!! with with schola scholars rs scram scrambli bling ng to assemble a giant puzzle of ill"%tting pieces. ;ew theories tend toward the extremes of either denying any meaning meaning to property property at all! or towards towards the magic of formalism! formalism! and both proclaim proclaim loudly"ei loudly"either ther proudly proudly or shameface shamefacedly" dly"the the complete complete disconnect disconnect with popular conceptions of what property is and why it should be protected. ;owhere is the is'ointedness of property property theory more manifest manifest than in the gap between the the two leading methodological approaches to property analysis"instrumentalism! analysis"instrumentalism! represented in the main by law and economics!a economics!and nd formalism formalism!! or conceptualist conceptualist scholarsh scholarship. ip. The two approaches seem so incompatible with one another that scholars belonging to each of the vying camps accuse their counterparts of misunderstanding their topic of study.
no di3erent than the legal rights aggregated under any other legal category category.. #t the basis of many economic economic treatments treatments lies a 6oasian 6oasian approach. This approach calls for well"de%ned legal rights to be %rst assigned and then allocated through voluntary exchanges mediated by the law of contracts. (n 6oases view! property rights are simply background rules"legally created entitlements awaiting reallocation reallocation through through contract. #nd! although 6oase 6oase acknowledged acknowledged that the initia initiall rights rights alloca allocatio tion n could could a3ect a3ect the e7cien e7ciency cy of an econom economic ic system system! ! most most subsequent economic theorists have declined to elaborate on this point! choosing instead to devote their attention to the contractual institutions allocating property rights. 6onsequently! law and economics scholars attach no importance to property as a distinct %eld of law for purposes of the standard economic analysis! property might 'ust as well be the part of of contract law that speci%es speci%es default rules. The conceptualists counter with notions derived from 2oman law! insisting on the primacy of in rem rights and specially privileged rights! including the rights to exclude! exclude! use! and transfer transfer property property.. 8ome 8ome conceptua conceptualists lists advance advance instrumental instrumental reaso easons ns for for cert certai ain n anci ancien entt rule rules! s! but but they they fail! fail! or do not not both bother er!! to expl explai ain n the the institution of property in its entirety.The instrumentalists! on the other hand! have expla explaine ined d some some enfor enforcem cement ent rules rules and prope property rty charac character terist istics ics!! but have have little little
explanation"and! frankly! little use"for the aggrega" tion of ancient forms de%ning the law of property property.-3 .-3 to the side! scholars occasionally occasionally note that neither neither theoretical theoretical approach connects very well with the popular conceptions of what property is and why it is valuable!but the critics have not been able to create a theory to compete with either the instrumentalists or the conceptualists. 2emarkably! what some might consider the central feature of property"its property"its functi function on as a device device for captur capturing ing and retai retainin ning g certai certain n kinds kinds of value" value"is is almost almost completely absent from modern conceptual discussions of property. (t was not always so. (n earlier centuries! the issue of value almost completely dominated theories of prope property rty?? how prope property rty creat created ed value! value! to whom whom it prope properly rly belong belonged! ed! and how it helped capture and retain value for its rightful =or wrongful> owner. @ohn labor> rather rather!! value value is creat created ed by relat relative ive tastes tastes and scarc scarcity ity of resou resourc rces! es! while pro%t pro%t is creat created ed by arbitr arbitrage age!! relyi relying ng on di3er di3erenc ences es in taste! taste! information! or nearly any other factor. factor. Thus! today it is believed that the institution of property is not necessary to guarantee the *real value* of an item for its i ts *true* owner. owner. This logic! however! is /awed. The modern view that value derives from sub'ective tastes! rather than a platonic form of the *true* price! does not alter the fact that propert property y is an institutio institution n uniquely quali%ed quali%ed to protect protect certain kinds kinds of value. value. Thus! even in a world where value is contingent rather than absolute! value remains the conceptual lynchpin of property theory. To To eliminate possible confusion! it is important to clarify at the outset that! as used in this #rticle! value is synonymous synonymous with utility utility or welfare as used used in the %eld of welfar welfare e econom economics ics.. 4ence! 4ence! this this #rtic #rticle les s accou account nt belongs belongs in the instru instrume menta ntalis listt tradition. tradition.The The framewor framework k developed developed here here explains explains why formal formal features features of property property beloved beloved by propert property y conceptua conceptualists lists are are indispensable indispensable to a proper proper instrumen instrumentalis talistt understanding of property. 8imultaneously! to the conceptualists! this #rticle shows that that even even in the muddled muddled world world of moder modern n prope property rty theory! theory! value value is the centra centrall concep conceptt unitin uniting g the law of prope propert rty y. 8tated 8tated otherw otherwise ise!! this this #rtic #rticle les s missi mission on is to explain the*individuation* of property! to borrow a phrase from @oseph 2az by way of @.B. Penner. Penner. That is! this #rticle explains why there is a branch of law called property and what purposes property law serves.
This #rticle begins its foray into the thicket of property theory by describing some of the prom promine inent nt past past appro approach aches es to prope propert rty y. This This Part aims aims to produ produce ce a rough rough grouping of various theories of property in order to advance the analysis of these theories strengths and weaknesses! as well as enable a reordering of the theoretical approach in the next two Parts. #ristotle conceived of the right to property as inherent in the moral order order.. 6riticizin 6riticizing g Platos Platos preference preference for common property property!! #ristotle #ristotle argued for the primacy of private property because it would encourage people to attend to their own a3ai a3airs rs rath rather er than than undu unduly ly inte interf rfer erin ing g in the the a3ai a3airs rs of othe others rs.. #ris #risto totl tle e held held this this incentive to be the result of a self"love self"love implanted by nature! such that only respect for private property could encourage the important virtue of liberality in the matter of property. (nterestingly! #ristotle viewed the right to exclude as a key component of
property rights because it allowed ownersto display virtue by waiving this right and sharing the bene%ts of property ownership with others. (n this tradition! early post"Bnlightenment theories of property focused on a *natural* right to property. Perhaps the most famous of these theories is *the labor theory* associated with @ohn
property belongs to a single individual! or as 5lackstone put it! *one man.* Third! where land is concerned! property rights extend inde%nitely upwards into the heavens and downwards to the center of the earth. 1ourth! the principal right attached to prop proper erty ty is the the righ rightt to exclud clude e *any *any othe otherr indi indivi vidu dual al in the the univ univer erse se.* .* $hil $hile e 5lacks 5lackston tone e proba probably bly did not intend intend this this resul result! t! moder modern n theori theorists sts associa associated ted this formulation with an absolutist view of property that eventually came to be known! somewh somewhat at inaccu inaccurat rately ely!! as the *5lackst *5lackstoni onian an bundle bundle of land land entitl entitlem ement ents.* s.* The 5lackstonian bundle presupposes impeccably demarcated parcels whose boundaries extend upward to the heavens and downward to the depths of the earth! and bestows upon owners unbridled powers and privileges to use! transfer! and even abuse land. 5y the beginn beginning ing of the twenti twentieth eth centur century! y! howev however! er! the 5lacks 5lackston tonian ian concep conceptio tion n began to wear. (n a highly in/uential series of articles! $esley 4ohfeld sought to render legal thought more coherent by clarifying the basic concepts of the law. law. 6oncerned about the looseness looseness with which legal terminology had been used! 4ohfeld re%ned existing concepts and created new ones to develop a comprehensive legal taxonomy.-f particular importance here is his treat treatmen mentt of prope property rty rights rights.. $hile $hile 4ohfe 4ohfeld ld lis listed ted owners ownership hip as his paradi paradigm gmati atic c example of an in rem right! he reconceived of in rem rights as mere expressions of in personam personam rights rights vis"#"vi vis"#"vis s an inde%nitely inde%nitely large large class of people. 4ohfeld 4ohfeld also pointed out that property! as a legal concept! comprises not only rights! but also privileges and powers powers.he .he furthe furtherr elucid elucidate ated d that that the crux crux of prop propert erty y is not a relat relation ionshi ship p between a person and an ob'ect! as 5lackstone had suggested! but rather a nexus of legal relationships among people regarding regarding an ob'ect. 4ohfeld did di d not intend to create c reate a comprehensive view. $hile his analysis of whether property should properly be viewed as an in rem right has since become a staple of property theory! 4ohfeld saw no need to address the practical implications of his taxonom taxonomy$ y$orkin orking g from from a purely purely conceptua conceptuall perspecti perspective! ve! 4ohfeld 4ohfeld did not concern concern himself with policy issues at all. ;evertheless! 4olifelds observations generally are credited with having created an entirely new understanding of property as a *bundle of rights.* The *bundle of rights* concept of property denies any %xed meaning to the term property property and deemphasizes the importance of the thing with regard to which the rights are claimed. (n the bundle metaphor! each right! power! privilege! or duty is but one stick in an aggregate bundle that constitutes a property relationship. $hether removing a stick =or set thereof> from the bundle will negate the classi%cation of the remainder as property cannot be determined in advance.* Thus! the bundle of rights theory transformed property into an almost in%nitely malleable concept! amenable to numerous permutations! and sub'ect to ad hoc decisionmaking. #.M. 4onore played a decisive role in advancing the bundle of rights metaphor by cataloguing a generally accepted list of the *incidents* of property or ownership. #cknowledging that the *fashion CofD speakCingD of ownership as if were 'ust a bundle of rights* might require small modi%cation of the list! 4onor nevertheless con%dently asserted? -wnership comprises the right to possess! the right to use! the right to manage! the right to the income of the thing! the right to the capital! the right to security! the rights or incidents of transmissibility and absence of term! the prohibition of harmful use! liability to execu executio tion! n! and and the incide incident nt of resid residuar uarity ity?? this this make makes s eleven eleven leadin leading g incide incidents nts.. (mportantly! 4onor noted that the importance of the list lay in it being an alternative to the *distortion* of the past! in which it was viewed viewed as prope property rty in the concen concentra tratio tion n of absolu absolute te rights rights of use! use! exclu exclusio sion n and transfer in a single individual. 4onor emphasized instead the lack of primacy of any individual stick in the bundle. Today! the bundle of rights conception of property rules the academic %eld. #s 5ruce #ckerman noted acerbically! the concept has become a *consensus view so
pervasive that even the dimmest law student can be counted upon to parrot the ritual phrases on command. The result has been what some lament as the end of property law. (n Thomas 0reys words! $e have gone . . . in less than two centuries! from a world in which proper p roperty ty was a central idea mirroring a clearly understood institution to one in which it is no longer a coherent or crucial category in our conceptual scheme. The concept of property property and the institution institution of property property have disintegrated ... The substitution of a bundle"of"rights bundle"of"rights for a thing"ownership conception of property has the ultimate consequence that property ceases to be an important category in legal and political theory. !. #tilitarianism #s the legal conceptualization of property changed! so too did the 'usti%cations for property. property. The seeds planted by 5entham struck root! and today! many many in/uential schola scholars rs 'ustif 'ustify y prope property rty on instru instrumen mental tal and and positi positive ve groun grounds. ds. Today! oday! there there is widespread agreement that the law orders property in response to societal needs! rather than in obeisance to a moral command or the natural order of the universe . Proper Property! ty! like like many many other other legal %elds! %elds! has been heavily heavily in/uenced in/uenced by the movement to apply economic analysis to legal questions. 6redit for generating this %eld has been ascribed at di3erent di3erent times times to -liver -liver $endell endell 4olmes! 4olmes! 2onald 6oase! and 2ichard Posner today! however! it is 6oases ideas that have had the most lasting impact in the %eld. 6lassical economics views externalities as a market failure that prevents otherwise competitive markets from from achieving achieving allocative allocative e7ciency e7ciency. . 2onald 6oase 6oase revoluti revolutionize onized d the %eld by noting noting that externalities will only lead to ine7ciency where transaction costs impair private bargaining. (n the absence of transaction costs! he wrote! parties would always always negotiate negotiate for an e7cient e7cient result result notwithst notwithstandin anding g externa externalitie lities. s. $hile 6oase paid no heed to the content of property! his analysis set the groundwork for subsequent contributions. 4arold 4arold :emsetz :emsetz built on 6oases 6oases foundation foundation in advancing advancing his important important evolutionary theory of private property. :emsetzs point of departure was identical to
third parties in exchange for the payment of a price determined by the third party the owner has no veto power! and must su7ce su7ce herself with the compensation compensation she receives. receives. The taxonomy taxonomy devised by 6alabresi and Melamed! although ingenious! confused the concept of property. 1or while the term *prop" erty rule protection* implies a tight relation to property! this allusion is misleading. #longside the normative 'usti%cations for property and the descriptive analyses analyses of propert propertys ys incidents! incidents! 6alabresi 6alabresi and Melamed Melamed described described property property as a mode of protection that enabled entitlement holders to en'oin nonconsensual uses of their entitlement"a power they dubbed *property rule protection.* Moreover! 6alabresi 6alabresi and Melamed aggravated the confusion at the descriptive level by suggesting that any legal entitlement could be sub'ect to property rule protection! thereby con/ating the entire 4ohfeldian 4ohfeldian vernacular* into a single! catch"all term term that fails to discriminate discriminate between property rights and other legal rights. 9oram 9oram 5arzel introduced yet another division of property. property. 5arzel distinguis distinguished hed between *economic *economic propert property!* y!* de%ned as "the individual's ability, in epect epected ed terms terms,, to consum consume e the good !or the service services s of the asset asset directly or to consum consume e it indir indirect ectly ly throu through gh excha exchange nge!* !* and *legal *legal prope property rty!* !* de%ned de%ned as those those econ econom omic ic prop proper erty ty righ rights ts that that are are "rec "recog ogni ni#e #ed d and and enfo enforc rced ed,, in part part,, by the the govern governmen ment$ t$ "Bcon Bconom omic ic prop proper erty ty!! for for 5arz 5arzel el!! is an excep xcepti tion onal ally ly broa broad d ter term! encompassing the rights of anyone with any ability to consume the good in any fashion.* 1or instance! in 5arzels view! a car thief is a co"owner of a car along with the tite holder! because each has the ability to consume! in certain circumstances! a portion of the attributes of the asset. 5arzel also relied upon 6oases insights to argue that the crux of property is the allocation of rights in environments of positive transaction costs. 5arzels model stipulated that private contracting would invariably fail to capture certain valuable attr attrib ibut utes es of asse assets ts.. The The lega legall inst instit itut utio ion n of prop proper erty ty!! on 5arz 5arzel els s view view!! simp simply ly organized some forms of protection for those attributes of an asset not addressed by optimal contracting. 1or 5arzel! therefore! property is a residual institution subordinate to the institution of contracts legal property is an even less signi%cant factor! because it is concerned with some instances in which the state might protect economic property rights. #s 5arzel put it! *CaDt the heart of the study of property property lies the study of contracts.* 9et! as 8mith and Merrill Merrill astutely observed! 5arzels analysis su3ers from a potential baseline problem. 5arzels analysis is predicated on the primacy of contracts over property! but as Merrill and 8mith point out *one cannot enter into contracts over the use of resources without some baseline to determine who contracts with whom.* (n the %nal tally! the positivist positivist and utilitarian utilitarian analyses analyses have splinter splintered ed the instit instituti ution on of prope propert rty y in severa severall ways. ways. Positiv ositivist ists s have have driven driven a wedge wedge betwee between n descriptive and normative dimensions of property. Etilitarians have contributed to the incoherence by breaking the concept of property into legal rights and economic rights =5arzel>! and divorcing the issue of primary rights from the issue of enforcement enforcement =6alabresi and Melamed>. $. Relational Relational !on"eptions o% Property Propert y (n 'uxtap 'uxtaposi ositio tion n to the utilit utilitari arian an and concep conceptua tualis listt prope property rty theori theories! es! a di3er di3erent ent analys analysis is recen recently tly arose arose empha emphasiz sizing ing the interp interpers ersona onall relat relation ionshi ships ps surro surround unding ing property rights. The most notable work in this genre is Margaret @ane 2adins %roperty and %ersonhood5uilding %ersonhood5uilding on 4egels theory! 2adin introduced an important distinction between personal and fungible property property. . #n ob'ect belongs in the former former category *if its loss causes pain that cannot be relieved by the ob'ects replacement.* (n contrast! it comes within the latter if *perfectly replaceable with other goods of equal market value.* Personal property constitutes ones self fungible property is held for *purely instrumental reasons.* reasons.* 2adin! then! suggested that ob'ects
could be ordered on a continuum running from personal to fungible. (ll Moving to the norma normativ tive e implic implicati ations ons!! 2adin adin propo proposed sed a *twole *twolevel vel** prope property rty system system that that o3ers o3ers di3er di3erent ential ial prote protecti ction on to entitl entitleme ements nts in accor accordan dance ce with with their their classi classi%ca %catio tion n as personal or fungible. fungible. 1urthermore! urthermore! 2adin suggested that her her theory might might imply an obliga obligatio tion n on the part part of the gover governme nment nt to *guara *guarante ntee e citize citizens ns all entitl entitleme ements nts necessary for personhood* and to ensure *that fungible property of some people does not overwhelm the opportunities of the rest to constitute themselves in CpersonalD property.* ;otwithstanding its ingenuity and importance! 2adins analysis further obscured the concept of property. 2adin implied that theorists could no longer simply refer refer to prope propert rty y as a generi generic c relat relation ionshi ship p among among people people with with regar regard d to ob'ect ob'ects. s. 2ather! 2adins analysis requires careful scrutiny of the nature of ob'ects sub'ect to prope property rty rights rights and the roles roles ob'ect ob'ects s play play in consti constitut tuting ing the person personali alitie ties s of the persons claiming them. E. Neo&!on"eptualism an #tilitarianism Most Most recen ecentl tly! y! a new new body body of sc scho hola lars rshi hip p has has soug sought ht to recov ecover er the the conc concep eptu tual al coher coherenc ence e of prope property rty by 'oinin 'oining g tradi traditio tional nal doctri doctrines nes with with some some basic basic utilit utilitari arian an 'usti%cations. (n an important series of articles! Thomas Merrill and 4enry 8mith sought to reintroduce some coherence to property law by stressing the centrality of two basic features of property law? the in rem nature of property rights and the numerus clausus principle! under which property rights *must track a limited number of stand standar ard d forms forms.* .* Merril Merrilll and 8mith 8mith observ observed ed that that *CwDhe *CwDhen n prope property rty rights rights are are created! third parties must expend time and resources to determine the attributes of these rights! both to avoid violating them and to acquire them from present holders. 6onsequently! the creation of idiosyncratic property rights increases the information costs property imposes on third parties. 8tandardization! on the other hand! reduces them. Note'!ompare a(ove theories )ith (elo)&Same PHI*OSOPHI!A* SYSTE+S FOR ,#STIFYIN- PROPERTY RI-HTS
There are various theories of property for 'ustifying its existence and its changing realm. The 2oman Philosophers believed that in pre Flegal state the things were in abundance. (ndividuals acquired control over these things for their survival. Thus the 2omans divided things into two "Things "Things in %atrimony =things %atrimony =things capable of being taken in privat private e owners ownership hip>> and thin things gs out out of %atr %atrim imon ony y =thi =thing ngs s whic which h cann cannot ot be owne owned d privately>. Theories propounded by 0rotius and Pufendrof Pufendrof seem to be the earliest in Natural Law Theories according Theories according to 0rotius! the property was originally &res nulliuis but but the man in society came to a division of things by agreement. 4owever Pufendrof di3ers with with 0rot 0rotiu ius s slig slight htly ly and and hold holds s that that the the thin things gs wer were &nega negati tive ve comm commun unit ity) y) i.e. i.e. originally things were &res &res communes). communes). ;o one owed them. This is called negative community to distinguish it from a7rmative ownership by co"owners. @ohn
economist economists s understand understand e7ciency e7ciency.. #nd %nally! %nally! he stresse stresses s that property propertyright rights s are limited by equality! so that one would be limited in the acquisition and the extension of property rights by a principle of equality. #ccording to
The Fe(eralist Pers%e"ti'e embodied Pers%e"ti'e embodied in 1ederalist thinkers such as @ames Madison! who believed that individual property rights were of crucial importance and deserved string stringent ent prote protectio ction. n. *0over *0overnm nment ent!* !* Madiso Madison n said! said! &is instit institute uted d no less less for the protection of property than of individuals). 1ederalists understood that other rights were of no use unless property was safe. #rthur
Title o+ %a%er *& Pro+5 Har(i# "alle( !Tra)e(& o+ the Co,,o#s4 which meant to demonstr demonstrate ate the necessity necessity of individualis individualistic tic property propertyright rights! s! although although it actually actually conv convey eys s the the mor more limi limite ted d idea idea that that sc scar arce ce resou esourrces ces need needs s regul egulat atio ion! n! rath rather er unr unrestr estric icte ted d free freedo dom. m. 2egula egulati tion on over over sc scar arce ce resou esourrce! ce! as the the prod produc uctt of the the relationship between individual! power and legal restrictions! give arise to di3erent form of property Flargee of the state. The way to avoid the tragedy is to develop techniques that rather than allowing free exploitation of scarce resources are able to determined a &price) that corresponds with social cost. (n recent times! economic arguments have emerged in defence of private property structures! although such theories do not focus upon the humanist concerns about the inequality and oppression that the expansion of private property has engendered.(t has been suggested that communal communal property property encourages encourages waste waste and an ine3ective ine3ective use of resour resources. ces. $here $here the prope property rty is privat privately ely owned owned these these resou resourc rces es may may be utiliz utilized ed more more e7cien e7ciently tly.. (ndividuals are not competing against each other for use! and may therefore spend more time and e3ort planning the most resources e3ective activities.These arguments are particularly potent in a society increasingly concerned with resource e7ciency and environmental environmental protection. #ccor ccordi ding ng to that validate a rights claim in terms of the consequences that follow from its general observance! and moral theories =such as those of that validate rights on the ground of protecting liberty or autonomy. Property rights are! in either case! a subclass of non"interference rights dealing speci%cally with control and excha exchange nge of aliena alienable ble goods. goods. Bconom Bconomic ic appro approach aches es to prope property rtyrig rights hts are are easily easily accommodated within utilitarian moral theory! and an economic analysis of e7ciency can be readily applied within a utilitarian argument on the validity of speci%c speci%c propert property y rights. rights.
Professor Philbrick1 Philbrick1 "3ne was loo.ing to individualism to save society$ The other was loo.ing to society to save the individual. individual."
The same sort of debate! between individualism and society! goes on today over topics topics like like welfare! welfare! social security! security! gun control! control! and a7rmativ a7rmative e action. action. +iewpoint +iewpoints s stressing individual rights can be traced back to the 1ederalists! while those stressing societys interests are rooted in the colonial 2epublicans. 5ut as the nature of the econ econom omy y chan change ged! d! prop proper erty ty righ rights ts chan change ged d with with it. it. @obs @obs and and bene bene%t %ts! s! or stoc stock k ownership! became 'ust as important as land. The law changed to give employees some protection and to recognize intangible property as well as real property.Property rights should really be understood as a balance between these competing interests. #s the information age has evolved! we have seen additional changes in property. Trademarks Trademarks and copyrights may be far more valuable than land. The framers of the 6onstitution could not have foreseen property rights in (nternet web sites! body parts! and and fert fertili ilize zed d huma human n eggs eggs!! and and yet yet we must must adap adaptt thei theirr idea ideas s to %t thes these e new new realities. 4istory teaches that what we mean by *property* and *property rights* has never been set in stone. (nstead! our recognition of these interests is constantly evolvingH what what may may have have been been allowe allowed d yester yesterday day may may be unacce unaccepta ptable ble to societ society y today today.. Particularly in the environmental area! the absolutist view of property rights seems mispla misplaced cedHw Hwhat hat we see as the proper proper us use e of land land =and =and there therefor fore e the *right* *right* of the propertyowner> is bound to re/ect the constantly changing needs of our society.