Property (or owndom) is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation. Depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy it, or to exclude others from doing these things.[1][2][3]
Important widely recognized types of property include real property (the combination of land and any improvements to or on the land), personal property (physical possessions belonging to a person), private property (property owned by legal persons or business entities), public property (state owned or publicly owned and available possessions) and intellectual property (exclusive rights over artistic creations, inventions, etc.), although the latter is not always as widely recognized or enforced.[4] A title, or a right of ownership, establishes the relation between the property and other persons, assuring the owner the right to dispose of the property as the owner sees fit.
Property is usually thought of as being defined and protected by the local sovereignty. Ownership, however, does not necessarily equate with sovereignty. If ownership gave supreme authority, it would be sovereignty, not ownership. Some philosophers assert that property rights arise from social convention, while others find justifications for them in morality or natural law.
Various scholarly disciplines (such as law, economics, anthropology or sociology) may treat the concept more systematically, but definitions vary within and between fields. Scholars in the social sciences frequently conceive of property as a bundle of rights. They stress that property is not a relationship between people and things, but a relationship between people with regard to things.
Public property is any property that is controlled by a state or by a whole community. Private property is any property that is not public property. Private property may be under the control of a single person or by a group of persons jointly.[5]
Modern property rights are based on conceptions of owners and possession as belonging to legal persons, even if the legal person is not a natural person. In most countries, corporations, for example, have legal rights similar to those of citizens. Therefore, the corporation is a juristic person or artificial legal entity, under a concept that some refer to as "corporate personhood".
Property rights are protected in the current laws of most states, usually in their constitution or in a bill of rights. Protection is also prescribed in the United Nations' Universal Declaration of Human Rights, Article 17, and in the European Convention on Human Rights (ECHR), Protocol 1.
Traditional principles of property rights include:
Traditional property rights do not include:
Not every person or entity with an interest in a given piece of property may be able to exercise all possible property rights. For example, as a lessee of a particular piece of property, you may not sell the property, because a tenant is only in possession and does not have title to transfer. Similarly, while you are a lessee, the owner cannot use their right to exclude to keep you from the property, or, if they do, you may be entitled to stop paying rent or sue for access.
Further, property may be held in a number of forms, such as through joint ownership, community property, sole ownership or lease. These different types of ownership may complicate an owner's ability to exercise property 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 their interest in the property to a stranger whom the other owner does not particularly like.
Legal systems have evolved to cover transactions and disputes that arise over the possession, use, transfer, and disposal of property, most particularly involving contracts. Positive law defines such rights, and the judiciary is used to adjudicate and to enforce property rights.
According to Adam Smith, the expectation of profit from "improving one's stock of capital" rests on private property rights. It is an assumption central to capitalism that property rights encourage their holders to develop the property, generate wealth, and efficiently allocate resources based on the operation of markets. From this has evolved the modern conception of property as a right enforced by positive law, in the expectation that this will produce more wealth and better standards of living. However, Smith also expressed a very critical view on the effects of property laws on inequality:
In his 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 persons, as opposed to families or entities such as the church.
Both communism and some kinds of socialism have also upheld the notion that private ownership of capital is inherently illegitimate. This argument centers mainly on the idea that private ownership of capital always benefits one class over another, giving rise to domination through the use of this privately owned capital. Communists are not opposed to personal property that is "hard-won, self-acquired, self-earned" (Communist Manifesto) by members of the proletariat. Both socialism and communism are careful to make the distinction between private ownership of capital (land, factories, resources, etc...) and private property (homes, material objects, and so forth).
Most legal systems distinguish different types (immovable property, estate in land, real estate, real property) of property, especially between land and all other forms of property—goods and chattels, movable property or personal property. They often distinguish tangible and intangible property. One categorization scheme specifies three species of property: land, improvements (immovable man-made things), and personal property (movable man-made things).
In common law, real property (immovable property) is the combination of interests in land and improvements thereto, and personal property is interest in movable property. Real property rights are rights relating to the land. These rights include ownership and usage. Owners can grant rights to persons and entities in the form of leases, licenses and easements.
Later, with the development of more complex theories of property, personal property was divided into tangible property (such as cars and clothing) and intangible property (such as financial instruments, including stocks and bonds, and intellectual property, including patents, copyrights, and trademarks).
The two major justifications given for original property, or homesteading, are effort and scarcity. John Locke emphasized effort, "mixing your labor" with an object, or clearing and cultivating virgin land. Benjamin Tucker preferred to look at the telos of property, i.e. What is the purpose of property? His answer: to solve the scarcity problem. Only when items are relatively scarce with respect to people's desires do they become property.[7] For example, hunter-gatherers did not consider land to be property, since there was no shortage of land. Agrarian societies later made arable land property, as it was scarce. For something to be economically scarce, it must necessarily have the exclusivity property - that use by one person excludes others from using it. These two justifications lead to different conclusions on what can be property. Intellectual property - non-corporeal things like ideas, plans, orderings and arrangements (musical compositions, novels, computer programs) - are generally considered valid property to those who support an effort justification, but invalid to those who support a scarcity justification, since they don't have the exclusivity property (however they may still support other 'intellectual property'-laws such as Copyright, as long as these are a subject of contract instead of government arbitration). Thus even ardent propertarians may disagree about IP.[8] By either standard, one's body is one's property.
From some anarchist points of view, the validity of property depends on whether the "property right" requires enforcement by the state. Different forms of "property" require different amounts of enforcement: intellectual property requires a great deal of state intervention to enforce, ownership of distant physical property requires quite a lot, ownership of carried objects requires very little, while ownership of one's own body requires absolutely no state intervention.
Many things have existed that did not have an owner, sometimes called the commons. The term "commons," however, is also often used to mean something quite different: "general collective ownership" - i.e. common ownership. Also, the same term is sometimes used by statists to mean government-owned property that the general public is allowed to access (public property). 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. These arguments have differing validity for different types of "property"—things that are not scarce are, for instance, not subject to the tragedy of the commons. Some apparent critics advocate general collective ownership rather than ownerlessness.
Things that do not have owners include: ideas (except for intellectual property), seawater (which is, however, protected by anti-pollution laws), parts of the seafloor (see the United Nations Convention on the Law of the Sea for restrictions), gases in Earth's atmosphere, animals in the wild (though there may be restrictions on hunting etc. -- and in some legal systems, such as that of New York, they are actually treated as government property), celestial bodies and outer space, and land in Antarctica.
The nature of children under the age of majority is another contested issue here. In ancient societies children were generally considered the property of their parents. Children in most modern societies theoretically own their own bodies but are not considered competent to exercise their rights, and their parents or guardians are given most of the actual rights of control over them.
Questions regarding the nature of ownership of the body also come up in the issue of abortion, drugs and euthanasia.
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.
Intellectual property and air (airspace, no-fly zone, pollution laws, which can include tradeable emissions rights) can be property in some senses of the word.
Ownership of land can be held separately from the ownership of rights over that land, including sporting rights,[9] mineral rights, development rights, air rights, and such other rights as may be worth segregating from simple land ownership.
Ownership laws may vary widely among countries depending on the nature of the property of interest (e.g. firearms, real property, personal property, animals). Persons can own property directly. In most societies legal entities, such as corporations, trusts and nations (or governments) own property.
In the Inca empire, the dead emperors, who were considered gods, still controlled property after death.[10]
Under United States law the principal limitations on whether and the extent to which the State may interfere with property rights are set by the Constitution. The "Takings" clause requires that the government (whether state or federal—for the 14th Amendment's due process clause imposes the 5th Amendment's takings clause on state governments) may take private property only for a public purpose, after exercising due process of law, and upon making "just compensation." If an interest is not deemed a "property" right, or the conduct is merely an intentional tort, these limitations do not apply and the doctrine of sovereign immunity precludes relief.[11] Moreover, if the interference does not almost completely make the property valueless, the interference will not be deemed a taking but instead a mere regulation of use.[12] On the other hand, some governmental regulations of property use have been deemed so severe that they have been considered "regulatory takings."[13] Moreover, conduct sometimes deemed only a nuisance or other tort has been held a taking of property where the conduct was sufficiently persistent and severe.[14]
There exist many theories of property. One is the relatively rare first possession theory of property, where ownership of something is seen as justified simply by someone seizing something before someone else does.[15] Perhaps one of the most popular, is the natural rights definition of property rights as advanced by John Locke. Locke advanced the theory that when one mixes one’s labor with nature, one gains a relationship with that part of nature with which the labor is mixed, subject to the limitation that there should be "enough, and as good, left in common for others."[16]
From the RERUM NOVARUM, Pope Leo XIII wrote "It is surely undeniable that, when a man engages in remunerative labor, the impelling reason and motive of his work is to obtain property, and thereafter to hold it as his very own."
Anthropology studies the diverse systems of ownership, rights of use and transfer, and possession[17] under the term "theories of property." Western legal theory is based, as mentioned, on the owner of property being a legal person. 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 balance individual ownership with the laws of 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. Such arrangements can under certain conditions erode to open access resources. This development has been critiqued by the tragedy of the commons.
Corporate systems describe ownership as being attached to an identifiable group with an identifiable responsible individual. The Roman property law was based on such a corporate system.
Different societies may have different theories of property for differing types of 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.[18]
In medieval and Renaissance Europe the term "property" essentially referred to land. Much rethinking has 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 (then called "usury"), and the development of centralized national monarchies.
Urukagina, the king of the Sumerian city-state Lagash, established the first laws that forbade compelling the sale of property.
The Ten Commandments shown in Exodus 20:2-17 and Deuteronomy 5:6-21 stated that the Israelites were not to steal, a blanket early protection of private property.
Aristotle, in Politics, advocates "private property" He argues that self-interest leads to neglect of the commons. "[T]hat which is common to the greatest number has the least care bestowed upon it. Every one thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual."[19]
In addition he says that when property is common, there are natural problems that arise due to differences in labor: "If they do not share equally enjoyments and toils, those who labor much and get little will necessarily complain of those who labor little and receive or consume much. But indeed there is always a difficulty in men living together and having all human relations in common, but especially in their having common property." (Politics, 1261b34)
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? He concluded: 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. The author of 'Oceana', he 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 included American revolutionary and founder John Adams.
Another member of the Hobbes/Harrington generation, Sir Robert Filmer, reached conclusions much like Hobbes', but through Biblical exegesis. 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 children—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 had 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 17th century that was a difficult view to uphold, Locke attacked Filmer's views in his First Treatise on 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, depredations 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 become prey.
To explain the ownership of property Locke advanced a labor theory of property.
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 non-consenting 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.
In contrast to the figures discussed in this section thus far, David Hume lived a relatively quiet life 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.[20] 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."
"Civil government, so far as it is instituted for the security of property, is, in reality, instituted for the defense of the rich against the poor, or of those who have property against those who have none at all."
By the mid 19th century, the industrial revolution had transformed England and had begun in France. The established conception of what constitutes property expanded beyond land to encompass scarce goods in general. In France, the revolution of the 1790s had led to large-scale confiscation of land formerly owned by church and king. The restoration of the monarchy led to claims by those dispossessed to have their former lands returned. Furthermore, the labor theory of value popularized by classical economists such as Adam Smith and David Ricardo were utilized by a new ideology called socialism to critique the relations of property to other economic issues, such as profit, rent, interest, and wage-labor. Thus, property was no longer an esoteric philosophical question, but a political issue of substantial concern.
Charles Comte, in Traité de la propriété (1834), attempted to justify the legitimacy of private property in response to the Bourbon Restoration. According to David Hart, Comte had three main points: "firstly, that interference by the state over the centuries in property ownership has had dire consequences for justice as well as for economic productivity; secondly, that property is legitimate when it emerges in such a way as not to harm anyone; and thirdly, that historically some, but by no means all, property which has evolved has done so legitimately, with the implication that the present distribution of property is a complex mixture of legitimately and illegitimately held titles." (The Radical Liberalism of Charles Comte and Charles Dunoyer
Comte, as Proudhon later did, rejected Roman legal tradition with its toleration of slavery. He posited a communal "national" property consisting of non-scarce goods, such as land in ancient hunter-gatherer societies. Since agriculture was so much more efficient than hunting and gathering, private property appropriated by someone for farming left remaining hunter-gatherers with more land per person, and hence did not harm them. Thus this type of land appropriation did not violate the Lockean proviso – there was "still enough, and as good left." Comte's analysis would be used by later theorists in response to the socialist critique on property.
In his 1849 treatise What is Property?, Pierre Proudhon answers with "Property is theft!" In natural resources, he sees two types of property, de jure property (legal title) and de facto property (physical possession), and argues that the former is illegitimate. Proudhon's conclusion is that "property, to be just and possible, must necessarily have equality for its condition."
His analysis of the product of labor upon natural resources as property (usufruct) is more nuanced. He asserts that land itself cannot be property, yet it should be held by individual possessors as stewards of mankind with the product of labor being the property of the producer. Proudhon reasoned that any wealth gained without labor was stolen from those who labored to create that wealth. Even a voluntary contract to surrender the product of labor to an employer was theft, according to Proudhon, since the controller of natural resources had no moral right to charge others for the use of that which he did not labor to create and therefore did not own.
Proudhon's theory of property greatly influenced the budding socialist movement, inspiring anarchist theorists such as Mikhail Bakunin who modified Proudhon's ideas, as well as antagonizing theorists like Karl Marx.
Frédéric Bastiat's main treatise on property can be found in chapter 8 of his book Economic Harmonies (1850).[22] In a radical departure from traditional property theory, he defines property not as a physical object, but rather as a relationship between people with respect to an object. Thus, saying one owns a glass of water is merely verbal shorthand for I may justly gift or trade this water to another person. In essence, what one owns is not the object but the value of the object. By "value," Bastiat apparently means market value; he emphasizes that this is quite different from utility. "In our relations with one another, we are not owners of the utility of things, but of their value, and value is the appraisal made of reciprocal services."
Strongly disputing Proudhon's equality-based argument, Bastiat theorizes that, as a result of technological progress and the division of labor, the stock of communal wealth increases over time; that the hours of work an unskilled laborer expends to buy e.g. 100 liters of wheat decreases over time, thus amounting to "gratis" satisfaction. Thus, private property continually destroys itself, becoming transformed into communal wealth. The increasing proportion of communal wealth to private property results in a tendency toward equality of mankind. "Since the human race started from the point of greatest poverty, that is, from the point where there were the most obstacles to be overcome, it is clear that all that has been gained from one era to the next has been due to the spirit of property."
This transformation of private property into the communal domain, Bastiat points out, does not imply that private property will ever totally disappear. This is because man, as he progresses, continually invents new and more sophisticated needs and desires.
Among contemporary political thinkers who believe that natural persons enjoy rights to own property and to enter into contracts, there are two views about John Locke. On the one hand there are ardent Locke admirers, such as W.H. Hutt (1956), who 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 concept of Natural Law" rather than upon Harrington's sociological framework.
Hernando de Soto has argued that an important characteristic of capitalist market economy is the functioning state protection of property rights in a formal property system where ownership and transactions are clearly recorded. These property rights and the whole formal system of property make possible:
All of the above enhance economic growth.[23]
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Property giving (legal) Property taking (legal)
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Property taking (illegal) Property of either digital or virtual form |
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