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Encyclopedia > Property rights
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.

Property is defined as the right, legal or moral, to ultimately determine the use and control of something, including the right to transfer such rights to others. It is distinguished from control, which may be transferred separately: for example, a building remains the property of landlord even when the use of it is contractually transferred to a tenant.

Within the law, property is a general legal category for rights of ownership in land, money, tangible objects, intangible objects, etc.

Within the conceptual framework provided by law this control is assured by the power of the law, or by power exercised under the law, and not by any separate power. However, philosophically at least, it is possible to think of property concepts outside a legal framework—though, as in the Middle Ages, a legal framework for property might well emerge.


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. Traditionally, they are the right to:

  1. control over use
  2. the benefits of property (e.g. mining and farm royalties, peaceable possession, etc.),
  3. transfer or sell,
  4. exclude others, e.g. non-owners.

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 many 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.

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.

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.

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.

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 made 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. Furthermore, and mindful of contemporary debates over gun control, one might note that Locke thought the very idea that any group of people would want to "disarm themselves" a reductio ad absurdum.

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 thereon 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."

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.

Types of property

Most legal systems distinguish between different types 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:

  1. real property - interests in land
  2. personal property - interests in anything other than land

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?

Not everything can be property; only those objects or ideas which others can be economically, physically, or otherwise excluded from can be considered property. Thus the air and the water in the sea belong to no one (presumably, although there are many cases of these things being considered a form of property in our contemporary society; see airspace, no-fly zone, or United Nations Convention on the Law of the Sea), though once stored in bottles or tanks, they can be considered property.

Traditionally many things existed that did not legally have an owner, such as commons (land belonging to nobody in particular, but over which commoners had rights). But over centuries and millennia, 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. At any rate, there are many things today which still do not have owners: ideas (except for intellectual property), seawater, the seafloor (though due to the United Nations Convention on the Law of the Sea, some of it can now be considered in some ways property), animals in the wild, celestial bodies, and land in Antarctica.

The human body is, in modern societies, considered something which cannot be the property of anyone but the person whose body it is. This is in contradistinction to the old practice in many societies of chattel slavery, which is almost universally considered unjust and illegal today. Whether a fetus is in the possession of the mother is a controversial issue; see abortion for more details.

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.

Information can be owned in the same way as physical goods in some cases (intellectual property), but not in other cases.

Who can be an owner?

Property requires a class distinction between owners (possessing title and the all rights of enjoyment) and non-owners (excluded from use). Generally, it is thought that humans can be owners, and non-humans can not. (There are exceptions to this. For example, in Athens, Georgia there is a tree that owns itself.)

Some societies have restrictions against ownership of property. In some, only adult men may own property. However, in other cultures (such as the Haudenosaunee), property is matrilinear and passed on from mother to daughter. In early America, slaves were prohibited from owning property.

Another modern concept is that certain legal fictions, such as corporations and trusts, can engage in contracts and own property.

See also

Strictly voluntary renunciation of (some of) one's own property

Non-voluntary renunciation of (some of) one's own property


Ideologies in support of property and ownership

  • Capitalism is in support of private ownership.
  • Socialism is in support of public ownership over the means of production, and private ownership over everyday items.
  • Communism is in support of communal ownership.

Ideologies opposed to property as an institution

  • Communism aims to establish a state-less and property-less society, based on the principle that goods should be produced and distributed according to the principle "from each, according to his ability; to each, according to his needs".
  • Most forms of anarchism (such as libertarian socialism, etc.) are also opposed to property as an institution; see, for example, Pierre-Joseph Proudhon's What is Property?, the origin of the famous quote "property is theft".

Other articles

External links

  Results from FactBites:
Property Rights, by Armen A. Alchian: The Concise Encyclopedia of Economics: Library of Economics and Liberty (2576 words)
The definition, allocation, and protection of property rights is one of the most complex and difficult set of issues that any society has to resolve, but it is one that must be resolved in some fashion.
Thus, the three basic elements of private property are (1) exclusivity of rights to the choice of use of a resource, (2) exclusivity of rights to the services of a resource, and (3) rights to exchange the resource at mutually agreeable terms.
The fundamental purpose of property rights, and their fundamental accomplishment, is that they eliminate destructive competition for control of economic resources.
Intellectual property - Wikipedia, the free encyclopedia (6016 words)
The term intellectual property reflects the idea that the subject matter of IP is the product of the mind or the intellect, and that once established, such entitlements are generally treated as equivalent to tangible property, and may be enforced as such by the courts.
Intellectual property laws are generally designed to confer a bundle of exclusive rights in relation to the particular form or manner in which ideas or information have been expressed or manifested, and not in relation to the underlying ideas or concepts themselves.
Exclusive rights may be analyzed in terms of their subject matter, the actions they regulate in respect of the subject matter, the duration of particular rights, and the limitations on these rights.
  More results at FactBites »



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