Rights to Property
Kenneth Kipnis
Possession and Property
Property rights are a complex, socially constituted bundle of obligations and permissions. It is a common mistake to think of property as one thing and the rights that attach to it as another. We can think of a baseball as part of a system of rules and practices within which it is used. If we found such an object in an ancient tomb, we could say it was just like a baseball. But if we knew the game wasn’t played when the object was buried, we couldn’t say that is what it was.
Similarly, there is a critical difference between the way the squirrel is in possession of its acorns and the way the corporation owns the forest. Unlike the mere possession of things, the ownership of property presupposes an elaborate system of rules governing the social allocation of things to persons. Just as our ancient artifact does not become a baseball until it is fitted into the practices of the game, so the things it is possible to possess – songs, lands, genetically engineered species, inventions, crops, manufactured items, mineral deposits, airplane tickets, stock certificates, trademarks, taxicab licenses, secret recipes, dolphins, human cell lines, news reports, athletic teams, and so on – do not become property until they are fitted into a complex system of legal arrangements.
In 1919 Wesley Newcomb Hohfeld tried to show how complex legal arrangements could be built out of four fundamental relationships: what are now called claim rights, liberties, powers, and immunities. Each of these ‘‘Hohfeldian rights’’ specifies a unique reciprocal relationship involving at least two parties. When you owe me a dollar, I have a claim right against you that you pay me and, reciprocally, you have the duty to pay. The claim right and the duty are part of a single relationship: the one entails the other. Likewise, if I am at liberty to eat in the cafeteria, then, reciprocally, everyone else lacks the right that I not eat there. If I have the power to permit people to take the short cut through my back yard, then, reciprocally, whether another person is at liberty to take the short cut or not is subject to my decision making authority. Everyone else is liable to me in that way (i.e., is subject to my power to give or withhold permission). And lastly, if I have immunity as an official representative of a foreign government, then I am not subject to arrest in the way everyone else is. Reciprocally, the police lack that legal power in my case: nothing they do to me can count as a valid arrest. A claim right correlates with a duty. A liberty to do something correlates with the absence of a right that one not do that thing. A legal power correlates with a liability. And an immunity correlates with the absence of a power. Much as atoms make up molecules, so Hohfeld thought that complex social practices could be constructed out of these elements.
In its original sense, property connoted all that was proper to some person. John Locke (1967), for example, included as property one’s life and one’s liberties in addition to one’s estates. C. B. Macpherson (1977) has noted that since Aristotle, the concept of property has traditionally included the right not to be excluded from those things society had designated as common: for example, access to and right to use public parks and waterways. It was not until the seventeenth century – not until the rise of capitalism and those market systems that have come to dominate social life in the West – that conceptions of property have more narrowly focused on goods that can be exchanged in market transactions. What makes market systems (i.e., the practices of business) possible are, in part, socially backed understandings of exchangeable entitlements.
The Analysis of Ownership
In a 1961 article, A. M. Honore´ analyzed the familiar concept of ownership into its ‘‘incidents.’’ Much of what he says about ownership can be understood in terms of Hohfeldian rights. At the foundation is the right to possess: a claim right to be in exclusive control coupled with the liberty to exercise ‘‘such control as the nature of the thing admits.’’ Stories, lands, and groceries admit to different sorts of control. If one owns a story, a movie producer may not adapt it without permission. Hikers may not trespass across one’s land. It is a crime to steal another’s groceries. This liberty to exercise control over one’s property is exclusive: all others are prohibited from interfering unless the owner exercises a power of permission. Honore´ notes that the practices of ownership entail the existence of remedies avail able to the owner in the event that the right to exclusive control is violated. If the groceries are stolen, the owner/victim has the power to summon the police and, if it is provably known who did it, to have the thief charged with a crime.
Three additional rights are closely related: the right to use, the right to manage, and the right to the income. One is at liberty personally to enjoy one’s property at one’s sole discretion: this is the right to use. One has the liberty and unique power to decide how and by whom one’s property shall be used: this is the right to manage. And one comes to own whatever fruits, rents, or profits one’s property generates: this is the right to the income. The right to the capital includes the power to give away one’s property and the liberty to consume, waste, or destroy it. The right to security involves an immunity from expropriation: generally, property is transferred only with the consent of the owner. Hon ore´ adds what he calls the ‘‘incident of transmissibility’’: at the death of the owner, what has been owned as property can pass to the owner’s successors.
The foregoing discussion should make it clear that there is no singular ‘‘right’’ to property. Rather, ownership is best understood as a pack age of claim rights, liberties, powers, and immunities. It is commonplace that these elements can be divided and reassembled in a myriad of ways. A trust, for example, can be set up so one party – the beneficiary – has the right to the income while a second party – the trustee – has the right to manage. When one rents an apartment, one has the right to use it for a fixed period during which many of the owner’s rights are suspended. Corporations, as fictional persons, own property themselves, but corporate officers manage the business as agents of the corporation (see agency theory). The stockholder, as owner of the corporation, has rights to the income. This separation of management rights from the other rights of ownership is a striking feature of many contemporary business organizations.
Honore´ discusses duties and liabilities associated with ownership. Chief among these is the prohibition against harmful use: owners have a duty not to use their property in ways that harm others. Likewise, the general immunity against expropriation will not protect owners against having their property taken from them following non payment of debts, bankruptcy, or as a con sequence of state expropriation (as, for example, when lands are condemned to build a highway). Those who lose property in this last way may have a claim right to just compensation. Rights are often shaped by regulations and exceptions conceived in the public interest. Zoning laws may restrict what I can construct on my land. And although owners ordinarily have exclusive control, under exigent circumstances government officials (police and firefighters, for example) and even ordinary citizens may be at liberty, without consent, to enter private premises or take into their possession the property of others.
The Justification of Property Rights
Conceived in this way, a system of property rights is a complex social artifact empowering owners to make socially enforceable claims. It is not much of an exaggeration to think of owner ship as a kind of sovereignty. Morris Raphael Cohen (1927) has written: ‘‘In a re´gime where land is the principal source of obtaining a livelihood, he who has the legal right over the land receives homage and service from those who wish to live on it.’’ Much as the justification of political authority has long been a central concern of philosophy, so philosophers have worried about the legitimacy of property rights. Lawrence Becker (1977) distinguishes between general and specific justifications of property. The former explains why there ought to be any property rights at all. The latter explains why there ought to be some specific sort of property right: Should beaches be private property down to the water? While it is not possible to provide a comprehensive overview of this literature, two important strands of the debate are worth sketching.
John Locke in chapter 5 of the Second Treatise of Government (1967) sets out the classic exposition of what has become known as the labor theory of property. Even prior to the establishment of law, Locke argues, there is a natural right to property. When, for example, a fisher man catches a fish in the ocean, it seems plain enough that the fish properly belongs to him. Locke would point out that the value of the fish in the boat is far greater than its value while it was in the ocean. The fisherman’s labor makes the difference, for the fish in the boat is the original fish ‘‘mixed’’ with that labor. For this reason it would be wrong for a bystander to seize the fish in the boat, unjust to take for oneself ‘‘the benefit of another’s pains, which he had no right to.’’ Locke adds that the argument justifying appropriation applies only when the fisher man takes no more than he can make use of and only provided there is ‘‘enough and as good left in common for others.’’ This latter condition – the ‘‘Lockean proviso’’ – grows in importance as the world’s resources are depleted. Many critics have pointed out that Locke’s general justification cannot specifically justify the ownership of land. Robert Nozick (1974) wonders why mixing one’s labor with an unowned thing isn’t simply a way of losing one’s labor.
While, in justifying property, Locke tends to look backward at the laborer’s initial appropriation, utilitarian and economic theorists see regimes of property rights as engineered mechanisms that, if well designed, can promote the general happiness or the broadest satisfaction of preferences (see utilitarianism). Jeremy Bentham (1931), for example, builds his general justification of property upon the precariousness of mere possession. ‘‘Without law there is no security,’’ and where there is no security, dis order and impoverished misery are, according to Bentham, inevitable consequences. Law creates ‘‘a fixed and durable possession’’ and so encourages people to labor now for that which they may reasonably expect to enjoy in the future. Property, in at least some of its implementations, can promote human well being by securing a more efficient – and, therefore, a more affluent – social order.
It may be useful to take note of the social perspectives underlying these two approaches to justification. While Locke appeals to justice, utilitarians and economic theorists appeal to a concern for the general well being. There is more than a kernel of truth in each perspective. For our choices in configuring the claim rights, liberties, powers, and immunities that are associated with property will affect the justice of our economic institutions and the general well being of those in our community. Although, in our individual pursuits of property and the good life, we may fixate upon what we want for ourselves, we might also do well to reflect on how our historically contingent, evolving regime of property rights could be improved and how accommodations to emerging circumstances might further shared aspirations for a more perfect community.
See also economic efficiency; justice; rights
Bibliography
Becker, L. C. (1977). Property Rights: Philosophic Founda tions. London: Routledge and Kegan Paul. (An important overview and analysis of the major arguments for and against property rights.)
Becker, L. C. (1979). Property theory and the corporation. In M. Hoffman (ed.), Proceedings of the Second National Conference on Business Ethics. Washington, DC: University Press of America.
Bentham, J. (1931) [1830]. Principles of the Civil Code, ed. C. K. Ogden. London: Kegan Paul. (Chapters 7 12 set out Bentham’s account. The text is available in Bentham’s Theory of Legislation.)
Cohen, M. R. (1927). Property and sovereignty. Cornell Law Quarterly, 13, 8 29.
Hohfeld, W. N. (1919). Fundamental Legal Conceptions. New Haven, CT: Yale University Press.
Honore´, A. M. (1961). Ownership. In A. G. Guest (ed.), Oxford Essays in Jurisprudence. Oxford: Clarendon Press, 107 47. (The standard analysis of ownership.)
Locke, J. (1967) [1689]. Two Treatises of Government, 2nd edn., ed. P. Laslett. New York: Cambridge University Press. (Chapter 5 of the second treatise sets out Locke’s account.)
Macpherson, C. B. (1962). The Political Theory of Possessive Individualism. Oxford: Clarendon Press. (An important study of the Lockean account of property.)
Macpherson, C. B. (1977). Human rights as property rights. Dissent, 24, 72 7.
Nozick, R. (1974). Anarchy, State, and Utopia. New York: Basic Books.