Property as Absolute Freedom (the ‘Liberal Triad’ [1]):
Freedom to Exploit a Resource
Exclude Others
Alienate (Sell) a Resource
Limits to Property:
Harm Principle:
A person has the right to use their property in any way they like, as long as it doesn’t cause harm to others.
Any legislative curtailment beyond this is potentially unconstitutional ‘taking’. [2] Critics like Epstein have commented on the compulsory nature of taxation.
Occupiers Liability:
Owners and leaseholders of property must ensure that lawful visitors are not subject to danger. They must also ensure this for trespassers who enter lawfully but without permission (EG: postman) if they are aware or have reasonable grounds to know of danger.
In Jolley v Sutton, a derelict boat had been abandoned on a beach owned by S. S put up a notice warning the public to not touch it and that it would be removed in 7 days if left unclaimed. S, in fact, never removed the boat and its condition worsened.
2 teenage boys found the boat and spent 6-7 weeks restoring it. During the work, part of the boat fell on J. J suffered spinal injuries resulting in paraplegia. J brought action and the House of Lords held that it was foreseeable that children may play on the boat and suffer injury, so S was liable.
Compulsory Purchase / Eminent Domain:
Property owners do not have the absolute right to prevent their land being acquired by the state. They only have a right to fair compensation.
‘In this [(a Hobbesian)] model of human nature, limitless self- interest and the consequent urgent need for self-defence require... the classical liberal conception of property. Nothing will get produced unless people are guaranteed the permanent internalization of the benefits of their labor; nobody will restrain herself from predation against others unless all are restrained from predation against her’. [3]
The Link between Property and Personhood
Radin’s View [4]:
Objects and things can be ‘bound up with personhood’ because of how humans constitute ourselves as ‘continuing personal entities in the world’.
‘Once we admit that a person can be bound up with an external ‘thing’ in some constitutive sense, we can argue that by virtue of this connection the person should be accorded broad liberty with respect to control over that thing. But here liberty follows from property for personhood; personhood is the basic concept, not liberty’.
As people, we are a ‘continuing character structure encompassing future projects or plans, as well as past events and feelings’.
‘If an object you now control is bound up in your future plans or in your anticipation of your future self, and it is partly these plans for our own continuity that make you a person, then personhood depends on the realization of these expectations’.
Radin compares the difference between personal property and ‘an object that is perfectly replaceable with other goods of equal market value’.
‘Think of a continuum that ranges from a thing indispensable to someone’s being to a thing wholly interchangeable with money’.
‘One reason the government should not prescribe what one may do in one’s home is liberty... But if liberty is the reason for limiting the government in such a case, then the rationale has nothing to do with where the actor is when she tries to exercise her will’.
‘There is more to the rationale based on sanctity of the home; it contains a strand of property for personhood. It is not just that liberty needs some sanctuary and the home is a logical one to choose because of social consensus. There is also the feeling that it would be an insult for the state to invade one’s home because it is the scene of one’s history and future, one’s life and growth’.
Singer’s View [5]:
‘Reconceptualizes property as a social system composed of entitlements which shape the contours of social relationships’.
Singer believes that (the tort action for) nuisance is a new model of property rights.
Property as Hostility:
Defensive Architecture:
EG: spiked benches / individuated chairs to prevent the homeless sleeping there.
Spikes ‘do not merely make it difficult or impossible to sit or sleep wherever they have been installed. They also communicate in stark terms the message that unhoused people are not welcome. Those who take notice of antihomeless spikes are often struck by their similarity in design and strategy to those smaller versions mounted to signs and rooftops to shoo away pigeons’. [6]
‘Defensive architecture is revealing on a number of levels, because it is not the product of accident or thoughtlessness, but a thought process. It is a sort of unkindness that is considered, designed, approved, funded and made real with the explicit motive to exclude and harass. It reveals how corporate hygiene has overridden human considerations, especially in retail districts. It is a symptom of the clash of private and public, of necessity and property.’ [7]
‘It is an indictment of our communities that we have come to identify street homelessness as a form of ‘disorder’ – a sign that something is amiss or dangerous in our public spaces. Yet the reality is that these kinds of design and security measures are put in place because of the breakdown of these very communities. Designs are used to remove those who have become disconnected and excluded from society and its support systems’. [8]
Access Rights to Land:
During COVID-19, access to physical spaces, such as parks, was limited. This created an inequality whereby some people did not have access to any green space at all.
Northcote Golf Club [9]:
A golf course in Melbourne became overrun with families using the green space for leisure when they were prevented from travelling further to another park. The course was usually only for private members, but the course agreed to open it to the public after people started using it regardless.
This demonstration of public civil disobedience relieved pressure on other public spaces.
UK Green Spaces [10]:
Green Party MP Caroline Lucas supported opening up golf courses to the public to increase green space after outdoor sports were temporarily banned.
Due to the pandemic, it became ‘a moral imperative’ to allow the use of private land for public good, despite the contested ownership and use. When restrictions were lifted again, golfers reclaimed the course. This was described as a ‘terrible shock’ by a walker who used the course during the lockdown.
‘The country’s fairways take up a huge amount of green space – and many were thrown open to the public during lockdown. Should that change be made permanent?’
Campaigns, such as Extinction Rebellion, made a petition regarding the public use of green spaces. It received more than 5000 signatures. The council decided to maintain it as a golf course, but another one in the area was rewilded.
Access to Knowledge (in relation to Vaccine Manufacture):
During COVID-19, access to knowledge and medicines was centred around westernised countries. This raises questions of the limits and boundaries of private property in a time of global public emergency.
Patents:
Vaccines are typically covered by patents, granting monopoly rights to the owner for 20 years. This incentivises the big-pharma companies to invest in the intensive R&D required to create and research new drugs. However, as objects of property, patents have the same inherent issues of exclusion as other forms of property.
Despite there being manufacturing facilities in places like India, South Africa and Brazil, very few have been able to manufacture the vaccine as they have not been granted licence rights. [11]
World Health Organisation officials supported a patent waiver that would allow any manufacturing site to make the vaccine despite the intellectual property rights. [12] This has been opposed by the western manufacturers and countries they are based in (who would profit through taxes).
A South African company, Artigen, has managed to produce a version of the Moderna vaccine through reverse engineering. This was done without Moderna’s cooperation or consent.
Oxford/AstraZeneca:
Oxford University owns the patent on their vaccine and considered licencing it freely to all manufacturers. They decided against this, instead forming an exclusive deal with AstraZeneca to produce the vaccines ‘at cost’.
Since vaccines like the Oxford/AstraZeneca one were heavily invested in with public funds, it has been argued that the usual patenting process should be different: big-pharma companies ought to not have a monopoly on the vaccine and make large profits in these situations. [13]
AstraZeneca failed to deliver enough doses of the vaccine as they had contracted for, leading to a vaccine shortage, demonstrating the need to share vaccine formulas. AstraZeneca were sued by the EU for their failure to deliver.
Vaccine Inequality:
Despite the World Health Organisation stating that it would be better to vaccinate the more vulnerable globally, many poorer countries didn’t receive vaccines until much later.
Vaccine shortage was intensified by vaccine hoarding by developed countries. The World Health Organisation described this as ‘vaccine inequity’ and ‘vaccine apartheid’. [14]
Predictions show that, at current rates, it could be until 2023-24 before 70%+ of the developing world will be vaccinated, if at all. [15] This drastically contrasts with the uptake in developed countries within Europe and North America.
Resources:
References:
[1] Margaret J. Radin, ‘The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings’ (1988) 88 Columbia Law Review 1667-1696 [2] Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Harvard University Press, 1985) [3] Margaret J. Radin, ‘The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings’ (1988) 88 Columbia Law Review 1667-1696 [4] Margaret Jane Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957- 1015 [5] Joseph William Singer, ‘Property and Social Relations: From Title to Entitlement’ in Property on the Threshold of the 21st Century 69 (G.E. van Maanen & A.J. Van der Walt eds., 1995) [6] Robert Rosenberger, Callous Objects: Designs against the Homeless (3rd edn, University of Minnesota Press 2018) [7] Alex Andreou, ‘Anti-homeless spikes: ‘Sleeping rough opened my eyes to the city’s barbed cruelty’’ The Guardian (18th February 2015) <https://www.theguardian.com/society/2015/feb/18/defensive-architecture-keeps-poverty-undeen-and-makes-us-more-hostile> accessed 3rd March 2022 [8] Rowland Atkinson and Aidan While, ‘Defensive Architecture: Designing the Homeless out of Cities’ The Conversation (30th December 2015) <https://theconversation.com/defensive-architecture-designing-the-homeless-out-of-cities-52399> accessed 3rd March 2022 [9] See Melissa Davey, ‘Fair way? Covid turned a Melbourne golf course into a public park and now no one wants to leave’ The Guardian (16th October 2020) [10] Simon Usborne, ‘”We had nudity on the greens!” The battle over Britain’s golf courses’ The Guardian (25th October 2020) [11] ‘Experts Identify 100 Plus Firms to Make Covid-19 mRNA Vaccines’ Human Rights Watch (15th December 2021) [12] WHO Official Dr Tedros Adhanom Ghebreyesus [13] L McDonagh, ‘Omicron’s emergence is a wake-up call: the TRIPS waiver is crucial to get the most effective vaccines to the global south’ LSE Covid-19 Blog (December 2021) [14] World Health Organization Director-General Tedros Adhanom Ghebreyesus, Speech at the Opening of the 148th Session of the Executive Board on the Coronavisus Disease (Geneva, Switzerland, 18th January 2021) [15] ‘Now or never: Most countries will vaccinate against Covid-19 this year, or never’ The Economist (10th November 2021)
Cases Mentioned:
Jolley v Sutton London Borough Council [2000] 1 WLR 1082
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