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Property

PROPERTY

The institution of property has interested social philosophers in part, at least, because it raises issues of justice. Like government, it is practically universal but varies enough in its particular arrangements to suggest the question What criteria are relevant in assessing the relative merits of various arrangements? Again, because it discriminates between rights and fortune, it invites moral criticism and the demand for justification.

Many of the classical accounts of the origin and function of private property have taken for granted that in nature all things were held "in common." This phrase, however, is ambiguous, for it often meant not a system regulating the use of goods by general agreement but a condition where, there being no rules, everything was res nullius (a thing belonging to no one) and the concept "property" was consequently irrelevant. How, then, it was asked, would humans come to appropriate the land and its fruits? How could such appropriation be justified? What would be rational grounds for claiming exclusive possession? And could there be any limit on people's right to do what they would with their own?

Theories of Property

According to the Church Fathers, property was both the consequence and the social remedy for the sin of covetousness that came with the Fall. But since owners have appropriated what at one time belonged to all, they have a duty to administer it for the benefit of all. "Our property," said Gregory the Great, "is ours to distribute, but not ours to keep." The concept of the owner as steward is the core of the traditional Christian view of property.

natural law and conventionalism

By the seventeenth century, property rights came to be grounded in the needs and accomplishments of the individual owner, and ownership implied a natural right to enjoy and dispose of its objects, limited only by the duty to respect the rather narrowly defined interests of others. In John Locke's account, property as an institution is explained by human needs. Although God gave the earth and all its fruits to all people to preserve their lives, still this meant one's making the fruits of the earth exclusively his own, if only by eating them. However, what in nature entitled one to call something one's own was that one made the effort to make it so. To add one's labor to a res nullius was to create a title to the whole product. Locke limited this title to whatever one could use before it spoiled; appropriation for waste would be illegitimate.

To appropriate an object implied for Locke not merely a right to enjoy it but also to alienate it at will, so that although the appropriation of res nullius could legitimately be effected only by labor, the title, once established, could be freely transferred. It is questionable, however, whether Locke was justified in assuming that because we may appropriate what we need from the common stock, we may therefore transfer what we acquire, but do not need, to whomsoever we choose. Locke needed this right, however, if his theory was not to suggest, as did certain later writers on economic justice, that the laborer was entitled to the entire fruits of his master's fields, if not to the fields themselves. For where all land had long been appropriated, the titles of present owners would depend entirely on the legitimacy of such transfers in the past. So, since the land was no longer res nullius, all the laborer could claim was the value of his labor in wages. Moreover, in a market economy and with the introduction of money, wealth might be accumulated and stored indefinitely without spoiling; furthermore, since money had only a conventional value, hoarding it deprived no one of anything of natural value, and its distribution must be taken to be by common consent. Having accounted, then, for the existence of property, and for existing titles, with a theory of natural right, Locke overlaid the theory with a conventionalist theory that neutralized the limitations on appropriation that the original theory prescribed.

Nature and convention are to be found similarly blended, if in varying proportions, in Hugo Grotius, Samuel von Pufendorf, and William Blackstone. In Immanuel Kant, too, there is a blend. Kant deduced the principle of first occupier from the autonomy of the will but conceded that only a universal legislative willthe civil statecould give binding force to the intention to appropriate.

utilitarian positions

According to David Hume, a man's creation ought to be secured to him in order to encourage "useful habits and accomplishments." Inheritance and the right to alienate were alike valuable as incentives to or conditions for useful industry and commerce. Property rested on convention in the sense of rules upheld by common interests commonly perceived. It was a law of nature, too, but in the sense that men were sufficiently alike the world over for the same general arrangements to be equally to the public advantage. Hume's argument, then, also blends natural law doctrine with conventionalism but reduces both to utilitarianism.

Jeremy Bentham did little more than elaborate Hume's arguments. However, by introducing considerations of utility, Hume and Bentham pointed the way for criticism of the distribution of private property and, indeed, of the institution itself. Already in 1793 William Godwin was arguing that in a consistent application of the principle of utility "every man has a right to that, the exclusive possession of which being awarded to him, a greater sum of benefit or pleasure will result, than could have arisen from its being otherwise appropriated" (Political Justice, Book 8). J. S. Mill, though broadly committed to a belief in private property, held that, in the case of land at any rate, private ownership must be conditional on its expediency; the rights associated with it, especially the right to exclusive access and enjoyment, ought to be limited to whatever was required to exploit it efficiently. Mill recognized that the rights of property were not an inseparable bundle, to be justified en bloc; each constituent right had to be independently justified on grounds of utility.

However, Mill's belief that the institution of property would be justified provided that it guaranteed to individuals the fruits of their labor and abstinence is open to question. In a complex industrial society, "the fruits of one's labor" can mean only the value of a given worker's contribution to the finished product. But value derives from the relations of supply and demand, both for the commodity and for labor of the various kinds needed to produce it. "The fruits of one's labor," understood as one's share in a social dividend, will depend not only on one's efforts but also on the number of other people available to do the same job and on how badly consumers want it done. If for the time being a particular skill is in short supply, is it self-evident that this increases the value of its fruits or that those who have it should be the better off for it?

marxist and hegelian critiques

Again, the exclusive claims of labor take no account of what men owe to others and to the social interest. Émile Durkheim, for instance, objected that "it is not enough to invoke the rights that man has over himself: these rights are not absolute but limited by the claims of the moral aims, in which a man has to cooperate." Karl Marx was equally critical of the German Social Democrats' Gotha program of 1875, which claimed that labor should receive its produce "unabridged and in equal right." He charged that this formula ignored the need for capital replacement and development, social services, and the support of the incapable. In any case, he said, distribution proportional to contribution would still be only partial justice, bearing in mind differences in natural capacity on the one hand and need on the other. In the truly cooperative society, based on common ownership of the means of production, individual labor would be impossible to separate out, and distribution would be according to need alone. This would be possible, however, only because labor would have ceased to be a burden and would have become "life's principal end."

This last condition suggests why, in a period when hedonistic premises underlay a great deal of psychology, ethics, and economics, the necessary relation between labor and property should have been so generally accepted. On the assumption that work was painful, the only conceivable reason for working was a greater pleasure expected from its fruits. Marx argued that this account of labor was neither an explanation nor a justification, but a consequence, of the system of private property. The worker was alienated from his work, which appeared to him not as a fulfillment but as a burden; he was alienated, too, from the product of his work, which, passing to his employer in surplus value, confronted him as capitalthat is, as an instrument of his own bondage.

Despite the stress on labor as the source of value that Marx shared with the English utilitarians and economists, his account of property derives at least as much from G. W. F. Hegel as from the English school. Like Kant, Hegel regarded property as necessary not because it helped to satisfy human needs but because "a person must translate his freedom into an external sphere in order that he may achieve his ideal existence" (Philosophy of Right, Sec. 41); because "property is the first embodiment of freedom and so is in itself a substantive end" (Sec. 45). Plato erred, in Hegel's view, in denying private property to the guardians, for he was denying them the conditions necessary for giving concrete realization to their personalities and wills.

Marx and Hegel are alike in seeing the human will objectifying itself in its acquisitions and creations. If for Marx the process is not rationalizing and liberating but alienating and enslaving, it is because the property created is not and cannot be the worker's own. The laborer can transcend this alienation only in the communist society, in which, like Plato's guardians or the members of a monastic community, he gets caught up in a common enterprise where "mine" and "thine" are of no account because life is more than the satisfaction of material needs. In a world in which "sharing in" counted for more than "sharing out," propertylike justicewould present no problems.

economic and social significance

In the course of the past century, legal and social philosophers (Léon Duguit and Karl Renner, for example) have come to think of property increasingly as an institution with social functions and not, like Locke, as simply a guarantee of individual interest. Moreover, because property entails inequalities in power, in claims on the social product, in social status, and in prestige, it must be justified, and not merely in terms of the interests or natural rights of its immediate beneficiaries.

It is difficult, however, to see how any one theory could apply generally to all forms of private property and include all rights of ownership. Individual control of productive resources raises very different issues from the exclusive right to enjoy consumer goods such as clothes and furniture. The right to control the use of mines and factories is not really an instance of the right of a Kantian rational and autonomous being to manipulate mere things for his own needs; it is also an exercise of power over other people. According to A. A. Berle, the United States is gradually extending to such property the limitations traditionally applied to state action in order to protect individual freedom.

Again, could one justify one's title to dividends on the ground that instead of enjoying the fruits of one's labor one had invested them? And would the same justification extend to a corporate title to the yield on investments financed out of undistributed profits? Such claims have certainly flourished under the umbrella of natural rights; but it is difficult to see how any but a utilitarian argument could seriously be proposed in defense of such arrangements.

Analysis of Ownership

Talk of property often seems to be talk about things. Things constitute property, however, only inasmuch as they can be assigned to owners; to own something is to have, in respect to it, certain rights and liabilities vis-à-vis other persons or the public at large. Ownership, therefore, is a normative relation or a complex of such relations between owner, object, and third parties, and to refer to something as "property" is to locate it as a term in such a relationship. Some jurists, indeed, insist that property refers not to things at all but, rather, to a bundle of rights. And this is obviously true of income titles, such as securities and annuities, and of rights of control over "intellectual property," such as patent rights and copyrights; these are "things" only in a very abstract sense, as characteristic complexes of normative relations.

As the objects of property are diverse, so also are the rights constituting it. Landowners' rights are necessarily different from copyright owners', and the owner of a gun does not have the same unrestricted use and control of it as the owner of a table has of the table. Jurists have nevertheless tried to identify some right necessary to ownership. The rights of exclusive use, possession, or alienation seem to be likely candidates, but each can conceivably be detached (for example, by a lease or an easement, under the terms of a trust, or, in former times, by entail) without the owners' losing property in the object. Accordingly, Sir Frederick Pollock suggested that "we must look for the person having the residue of all such powers when we have accounted for every detached and limited portion of it." But this residue, as held, say, by a ground landlord with a thousand-year tenant, may be very slender indeed, and the owner to whom all the detached rights will revert when the encumbrances reach the end of their term will certainly not be the present owner.

A. M. Honoré suggests a way out of these difficulties by concentrating not on the difficult exceptions but on the standard instance. He defines ownership as "those legal rights, duties and other incidents which apply, in the ordinary case, to the person who has the greatest interest in a thing admitted by a mature legal system." Among the characteristic features are the right to possess and to be secure in possession, to use and to manage the property, to enjoy income arising from it and to alienate, consume, waste, or destroy the capital, and to transmit ownership to one's successors indefinitely; the absence of a fixed date on which the owners' interests terminate; the prohibition of harmful use; the liability of the property to execution for debt or insolvency; and the reversion to the owner on the termination of whatever lesser interests (leases, usufructs) encumber the property. Now, to say that A is the owner of x is not necessarily to say that he is the present subject of all these incidents; however, provided the kind of property in question can intelligibly be said to be the object of them and in the absence of special conditions or reservations, it is reasonable to infer that he is.

The Scandinavian legal realistsKarl Olivecrona and Alf Ross, for examplehave been more radical in their analyses. According to Ross, ownership is "solely a tool in presentation." Theoretically, one could enunciate a mass of directives to judges, each consisting of a conditioning fact or facts (F ) and a legal consequence (C ), such as (1) if a person has lawfully purchased a thing (F 1), judgment for recovery of possession should be given in his favor (C 1); (2) if a person by prescription has acquired a thing and raised a loan that is unpaid (F 2), the creditor should be given judgment for satisfaction out of the thing (C 2); and so on. Now, to introduce "ownership" is not, according to Ross, to add something that accounts for the connections between the F 's and the C 's but merely to indicate the systematic connection between them such that F 1, F 2, F 3, ···, Fp severally and collectively entail the totality of legal consequences C 1, C 2, C 3, ···, Cn. The word ownership in Ross's view is "without any semantic reference whatever"; it serves only to reduce the complexity of particular rules to a systematic order. There is nothing beyond or in addition to the rules.

Now, it is certainly true that only confusion can result from trying to identify some special kind of a thing, or some special quality of things, which is called "property." Nevertheless, "ownership" does not always imply the same bundle of rights. The possible conditioning facts and the legal consequences are not the same for every case in which one may say that X is the owner of P. And, therefore, since the relevant rules do not have the rigorous relation to one another that Ross suggests, one can identify them as the rules of property (as distinct from, say, personal rights) only by recognizing some sort of family resemblances between them. Indeed, the terms Ross uses in exemplifying his conditioning facts"purchase," "occupation of res nullius," "acquisition by prescription"are obviously already impregnated with ownership; to purchase something, for example, is to give money for itthat is, on the understanding that one acquires not merely possession, but also owners' rights, over it.

Deciding who is the owner of a piece of property is, of course, to decide on the basis of certain facts where certain powers and liabilities lie. But to reduce a legal concept like property to a finite set of directives to judges ignores the fact that judges are constantly having to reshape the rules in the very process of applying them. If the rules of ownership are treated as a more or less arbitrary agglomeration, it is difficult to see how judges could make rational decisions at all.

Ross's bundle of conditioning facts and legal consequences is significant, however, because it suggests how one goes about constructing a paradigm case of ownership, or, rather, a family of paradigms related by the fact that different conditioning facts entail broadly similar legal consequences. Deciding ownership in an atypical case would then involve deciding whether it can be assimilated to any of the available paradigms even though some characteristic ownership features are absent or other features that are out of character are present. A judge may have all kinds of reasons for making or refusing such an assimilation; but it is difficult to see how the problem could be presented to him at all without presupposing the standard cases of ownership as agreed starting points for discussion.

See also Bentham, Jeremy; Durkheim, Émile; Godwin, William; Grotius, Hugo; Hegel, Georg Wilhelm Friedrich; Hume, David; Justice; Kant, Immanuel; Locke, John; Marx, Karl; Mill, John Stuart; Natural Law; Patristic Philosophy; Plato; Pufendorf, Samuel von; Rights; Utilitarianism.

Bibliography

Dias, R. W. M. A Bibliography of Jurisprudence. London, 1964. Extensive annotated bibliography, mainly from the juristic standpoint.

general histories

Bartlett, J. V. et al., eds. Property, Its Duties and Rights. London: Macmillan, 1915.

Grace, Frank. The Concept of Property in Modern Christian Thought. Urbana: University of Illinois Press, 1953.

Macpherson, C. B. The Political Theory of Possessive Individualism: Hobbes to Locke. Oxford: Clarendon Press, 1962.

Schlatter, Richard. Private Property: The History of an Idea. London: Allen and Unwin, 1951.

classical theories

Hegel, G. W. F. Grundlinien der Philosophie des Rechts. Berlin, 1821. Translated, with notes, by T. M. Knox as Hegel's Philosophy of Right. Oxford: Clarendon Press, 1942.

Hume, David. Treatise of Human Nature (1640), edited by L. A. Selby-Bigge. 2nd ed. Oxford: Clarendon Press, 1896.

Locke, John. Two Treatises of Government (1690). Edited by Peter Laslett. Cambridge, U.K.: Cambridge University Press, 1960.

Marx, Karl. Critique of the Gotha Programme. In Karl Marx and Friedrich Engels: Selected Works. 2 vols. Moscow, 19491951. Vol. II.

Marx, Karl. "Ockonomisch-philosophische Manuskripte aus dem Jahre 1844." In Marx-Engels Gesamtausgabe, edited by D. Riazanovsky and A. Adoratski. Berlin, 1932. Part I, Vol. III, edited and translated by T. B. Bottomore as "Economic and Philosophical Manuscripts" in Karl Marx: Early Writings. London, 1963.

Mill, J. S. Principles of Political Economy. 7th ed. London, 1871.

economic and social significance

Berle, A. A. "Property, Production and Revolution." Columbia Law Review 65 (1) (1965): 1-20.

Berle, A. A., and G. C. Means. The Modern Corporation and Private Property. New York: Macmillan, 1933.

Duguit, Léon. Les transformations générales du droit privé. Paris, 1912.

Durkheim, Émile. Leçons de sociologie physique des moeurs et du droit. Paris: Presses Universitaires de France, 1950. Translated by Cornelia Brookfield as Professional Ethics and Civic Morals. London: Routledge, 1957.

Renner, Karl. Die Rechtsinstitute des Privatrechts und ihre soziale Funktion. Tübingen, 1929. Translated by Anges Schwarzschild as The Institutions of Private Law, edited by Otto Kahn-Freund. London, 1949.

analysis of ownership

Honoré, A. M. "Ownership." In Oxford Essays in Jurisprudence, edited by A. G. Guest. London: Oxford University Press, 1961.

Noyes, C. Reinold. The Institution of Property. New York: Longmans, Green, 1936.

Olivecrona, Karl. Law as Fact. London: Oxford University Press, 1939.

Pollock, Frederick. Jurisprudence and Legal Essays. London: Macmillan, 1961.

Ross, Alf. On Law and Justice. London: Stevens, 1958.

Simpson, A. W. B. "The Analysis of Legal Concepts." Law Quarterly Review 80 (October 1964): 535558.

Stanley I. Benn (1967)

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