What is Property?

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Types of Property:

Real Property (also known as ‘Realty’):

Land is broken down into estates, which can either be freehold or leasehold.

Real property can also include anything that is immovable, fixed or durable.

Personal Property (also known as ‘Personalty’):

Any property that is movable is known as chattels.

Intangible things, such as bank accounts or intellectual property, can be personal property.

Public Property:

Land, buildings and equipment owned by the state and overseen by the government.

Key Themes in Property:

Dominium - Latin term meaning ‘dominion, control or ownership’.
Exclusion.
Rights.
Possession.
Ownership.

Defining Property:

Dictionary Definitions:

‘the complex jural [legal] relationships between persons with respect to things’.[1]

‘The right of one or more persons to possess and use it to the exclusion of others’.[2]

Views on Property:

Filmer’s View [3]:

Writing before Locke, Filmer defended absolutism and the divine right of kings.

‘every king that now is hath a paternal empire, either by inheritance, or by translation, or usurpation’.

Christianity:

Filmer links the monarchy and divinity to justify the right of a king to rule.

‘It is a shame and a scandal for us Christians to seek the original of government from the inventions or fictions of poets, orators, philosophers, and heathen historians, who all lived thousands of years after the creation …and to neglect the scriptures, which have with more authority most particularly given us the true grounds and principles of government’.

For Filmer, the world was given to Adam by God, who gave individual property rights and dominion over all living things. Men do not have the right to consent or choose their ruler, this is merely an act of God.

Locke’s View [4]:

Writing shortly after the Glorious Revolution, Locke wrote about the concept of property in relation to the individual.

State of Nature:

Natural law creates an innate desire for the preservation of oneself and mankind. In a state of nature, there is no scarcity of recourse, as there is no ownership of property. Therefore, there can be no property, only physical possession.

Only within a social compact / government can humanity have a right to hold property. Locke believes that it is labour that gives the right of ownership.

‘So when he takes something from the state that nature has provided and left it in, he mixes his labour with it, thus joining to it something that is his own; and in that way he makes it his property’

Nozick's Criticism: Spilling tomato juice in the sea – ‘do I thereby come to own the sea?’

‘man had in himself the great foundation for ownership—namely his being master of himself, and owner of his own person and of the actions or work done by it’

‘[E]very man has a property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we may say are properly his’.

Shift to Private Property:

Locke was writing at a time where England was shifting from the idea of common property under the feudal system to one of private property. He placed emphasis on the fact that the rights of private property owners had priority over the government.

‘It was God, not human convention, that had given men a title to the fruits of their labour’. [5]

‘perfect freedom to order their actions, and dispose of their possessions and persons as they think fit’. [6]

Types of Property Right:

Lus ad rem – claim right

Lus in re – right founded in actual possession

Limits to Appropriation / Accumulation:

We must leave ‘enough and as good’ for others.
You must not waste what you appropriate.
Acquisition can only be through labour.

American Colonies:

Locke was intensively involved with and had interest within the European colonies in North America. He had ties to the slave trade and did not view the appropriation of land and property from the native Americans as unjust. He viewed them as in a state of nature, thus justifying the work of the colonisers.

Ellen Meiksins Wood: believes Locke’s theory cannot work because people can appropriate other people’s labour through employment and slavery.

Money:

Before currency, the values of things depended on the usefulness of the bargaining material to the other person. However, money is now universal and can be accumulated to a large degree without it spoiling. Locke distinguishes money from other forms of property as it would not adversely affect others to accumulate lots of it, unlike land or perishable goods.

Writing at the start of capitalism, Locke was obviously not foreseeing the modern economy, large conglomerates of companies or the massive wealth inequality that can be seen today.

Macpherson (Marxist Critique): ‘possessive individualism is used to justify the cruellest form of capitalism in the 17th century’

Grey & Grey’s Views [7]:

Grey and Grey believe that property is not the thing itself, but the relationship someone has with the thing. Therefore, people have property in a thing.

‘composite bundles of incorporeal right’.

Claiming property in a resource is ‘to assert strategic control over’ it. Term ‘property’ is merely a ‘reference to the socially permissible power exercised in respect of a socially valued resource’.

In their view, exclusion is key.

Other Views:

A bundle of rights: to control, to use, and to exclude others. [8]
The right to possess; to use; to manage; to the income; to the capital; to security; to transmit; and various prohibitions/liabilities (ie, of harmful use). [9]
‘socially recognized rights of action’: the rights to use, to profit from, to sell, and to exclude if the goods or resources are privately owned. [10]

Resources:

References:

[1] Britannica, ‘property’ (2021) Encyclopaedia Britannica [2] Black’s Law Dictionary, ‘property’ (2021, 2nd edn) The Law Dictionary [3] Sir Robert Filmer, Patriarcha (1630-31) [4] John Locke, Second Treatise of Government (1689) [5] John Dunn, Locke: A Very Short Introduction (Oxford University Press 2003) [6] John Locke, Second Treatise of Government (1689) [7] Kevin Gray and Susan Francis Gray, “The Idea of Property in Land” in Susan Bright and John K Dewar (eds), Land Law: Themes and Perspectives (Oxford University Press 1998) 15–51 [8] Jeremy Waldron, “What Is Private Property?” 5 Oxford Journal of Legal Studies (1985) 313-349 [9] A M Honoré, ‘Ownership’ in Anthony G Guest (ed) Oxford Essays in Jurisprudence (Oxford University Press 1961) [10] Armen A Alchian & Harold Demsetz, ‘The Property Right Paradigm’ (Cambridge University Press 1973) Journal of Economic History Vol 33, No 1, The Tasks of Economic History 16-27