Philosophy Of Property Research Paper

1. The Term ‘Property’

Property is probably best understood relationally. Property rights involve relations among people concerning benefits and responsibilities which often are (but need not be) associated with particular objects in the world. In ordinary speech, however, the term ‘property’ is often used to describe the objects over which property relations are held themselves. Although it is common to speak of property as concerning objects in the world, philosophical discussions of property concern themselves with property understood as social, legal, and moral relations with regard to objects, benefits, responsibilities, and their control, within given legal and social contexts. The law of property concerns the legally recognized distribution of rights, responsibilities, and benefits associated with objects of property (both physical and immaterial). Social and moral relations of property, however, are not bound by legally recognized understandings of the limits and extent of property rights.

The range of legally recognized property rights and responsibilities vary from jurisdiction to jurisdiction. Similarly, social and moral property rights vary between cultures and across history. It can be difficult to identify whether a particular claim to a benefit or attribution of responsibility is best characterized as a property right or some other form of legally or socially recognized benefit or responsibility. In jurisprudence, clear distinctions between property, contract, and tort bases for legal entitlements or legally protected interests may be impossible to make. In this way, philosophical discussions of property are bound inevitably with broader discussions of distributive justice, social justice and with normative discussions of the role of the state in protecting or promoting certain kinds of interests.

The extent and limits on property rights vary along three dimensions: the range of objects over which property rights can be held (for example, whether water, air, or titles can be held as property); the range of specific property rights over an object that are recognized (for example, whether property can be bequeathed on death or whether property rights can be leased to others); and the entities that can bear specific property rights (for example, individuals and corporations, communities, the state). In capitalist states, there is a presumption that anything could be conceived of as property and that anything which is property could be alienated, although there may be good moral grounds for the state to limit property rights in the public interest (for example, prohibitions against the sale of human beings, or prohibitions against the purchase of insurance against some legal responsibilities like legal culpability for criminal conduct). In pre-capitalist and socialist states there may be limits to the kinds of property which can be privately owned (for example there may be state or collective ownership of land, factories, or other means of production), with some presumption of a state interest in limiting private property rights for the purpose of redistribution of benefits and burdens through, for example, taxation, control over prices, limits on rights of sale, and control over wages.

1.1 Property As A ‘Bundle Of Rights’

In the conceptual analysis of property, it is generally understood as a term which refers to a bundle of rights, or rights and responsibilities. In liberal democratic theory and jurisprudence, specification of the bundle starts with the full array of rights and responsibilities enjoyed by a private owner of a thing. Minimally these are taken to include Hohfeldian rights of exclusion, rights of use, the power to alienate property and immunity from expropriation (Hohfeld 1919). Theorists have provided a number of ways of enumerating the different aspects (rights and responsibilities) of ownership, most are now heavily influenced by Honore’s (1961) list of the 11 ‘incidents’ which together constitute ‘full, liberal ownership.’ These incidents are the rights of use, possession, management, income, capital, security, absence of term, residuarity, and the responsibilities of prohibition of harmful use and liability to execution. Honore’s analysis applies most readily to property in material objects, but is intended also to apply to immaterial property such as future production, control over labor and copyright. The terms ‘thing’ and ‘object over which property rights are held,’ then, are not meant to exclude these forms of property.

Honore’s analysis allows that the constitutive rights which together make up ownership could be identified differently (that finer distinctions could be made, for example between the right to capital through sale and through consumption of property). He also recognizes that for any given object over which property rights may be held (for example, a car) the range of property rights which a person must hold to be deemed the owner of that object may differ from what is required to own another kind of object (for example, a pharmaceutical company). Other theorists provide distinct analyses of property which are less extensive, but draw on Honore’s list: for example, Becker (1977) and Snare (1972).

1.2 ‘Ownership’

Within liberal capitalism, philosophical discussion of property is often understood as a discussion of ‘ownership’. Ownership can be seen as a kind of legal trump with regard to other property rights, but not necessarily with regard to other kinds of moral or social claim.

Many writers seeking to analyze the concepts of property and ownership as social and legal institutions have focused on the rights an owner has regarding a thing, with which nonowners may not interfere. ‘Ownership’ is the relation one is in (characteristically in a private property system), when one has ‘the greatest possible interest’ in a thing (Honore 1961). That is it is the title given to the person who has the widest range of property rights over the thing. It may be more correct to say that the owner is the person who holds the most socially or legally significant property rights over a particular kind of thing. The specific property rights which are seen as most significant will vary with the kind of thing owned and the possible uses of those rights: rights of control over production and rights to income from profits will be relevant in identifying the owner of an industrial business, while rights over control of access and use may be more significant in identifying the owner of a retail space; rights of possession and use may be more important in identifying the owner of personal property (such as a car). In legal contexts, the person who is deemed to be an ‘owner’ has a stronger legal claim than any other holders of property rights over the thing. Nonetheless, there are many cases where it is unhelpful to try to determine who has rights of ownership, as property rights may be separated and limited in a huge number of ways. Further, the terms ‘owner’ and ‘ownership’ most naturally arise in discussion of private property. In the justification of property theories where relative merits of private, communal, state or mixed systems of property are to be assessed, it is frequently more helpful to refer to the range of property relations recognized within the theory, rather than attempting to specify relations of ownership.

1.3 Property Systems

Property systems, or the legal and social institutions concerning property a society are frequently divided into three kinds: private, collective, and common property systems. Waldron (1988) describes property systems as systems of ‘rules governing access to and control of material resources’ and distinguishes between private, collective, and common property systems in terms of the different ‘organizing idea’ around which each kind of system is framed. ‘In a system of private property, the rules governing access to and control of resources are organized around the idea that resources are on the whole separate objects each assigned and therefore belonging to some particular individual.’ Collective property systems are characterized by the organizing idea or a ‘social rule that the use of material resources in particular cases is to be determined by reference to the collective interests of society as a whole.’ In common property systems, the organizing idea of the rules of allocation of rights to resources is the idea that ‘each resource is in principle available for the use of every member alike’ (Waldron 1988). For Waldron, kinds of property systems are distinguished according to their organizing ideas, yet Waldron’s concept of an organizing idea for property systems is not meant to be reductive. Most property systems in actual societies contain elements of each system: some resources, e.g., sunlight, are understood as common property; some, e.g., state-run utilities, are held as collective property and some resources, e.g., clothing, are held privately.

2. The Context Of Debates Surrounding Property

Within political philosophy debate about property rights and the justification of property are closely connected with debate about the legitimacy of state authority, national sovereignty, individual rights against the state and justice. Historically the shift from feudalism to representative democracies in Europe coincided with debate about the source and nature of the justification of property rights. Broadly speaking, feudal modes of production were agricultural. In feudal regimes all property in land was held by the sovereign and rights to use of that land were allocated in accordance with the sovereign will. The sovereign then levied taxes or required some form of payment for the use of the land and had ultimate authority to determine the use of the land and the income generated from the working of that land. Land obtained through conquest or treaty similarly came under the sovereign power. With the rise of representative democracies, the scope for exercising sovereign rights over land and determining taxes and other levies on the use of the land became constrained by the popular will and claims of the citizenry. What remained, however, was the idea that ultimate authority over grants of land, the use of land, and taxation rested with the sovereign, whether that be an individual monarch or the sovereign authority of a parliamentary government.

2.1 Property, Patriarchy, And God

An early debate about the source of legitimate property rights and its relation to political authority was between Filmer (1680) and Locke (1690). Filmer had argued that the king’s sovereignty could be traced directly back to God’s gift of the earth and its bounty to Adam. The patriarchal lineage of the king gave him and no other person ownership of the world, and authority over all those living therein. Locke’s refutation of Filmer rested on three propositions: the fundamental moral equality of all men; the gift by God of the earth and its fruits to all men in common (and not exclusively to Adam and his descendants); and that individual appropriation of property from the common could be legitimate, in the absence of the universal consent of all the other common owners. Filmer’s argument tied the ownership of land and the political authority of the king together through Adam’s sovereignty. Locke’s argument separated the two, as he argued that legitimate property rights could be held in the state of nature (outside of political societies). However, he argues that political societies would not be entered into with the consent of the citizens unless the sovereign authority protected the pre-political property rights. Thus, the legitimacy of the state depends, in part, on its protection of property rights.

2.2 Property And Liberalism

Within liberal political philosophy more generally, the recognition, enforcement, and protection of private property rights is viewed as a function of the state (Rawls 1971), and as a source of its legitimacy. Private property is understood by many liberals as providing a realm within which individuals can exercise personal liberty, free from interference by others. If something is owned by a person, others must not interfere with the harmless exercise of the property rights held over the thing. Some liberal theorists, particularly those who emphasize the significance of ‘negative freedom’ argue that expansion of personal liberty depends on private possessions through which liberty can be exercised. Other liberals, however, recognize that the unequal distribution of private property rights limits the equal enjoyment of liberty and therefore argue that property rights must be limited to protect against gross inequalities in freedom.

2.3 Equality And Justice

Because systems of property distribute goods among individuals within a state, discussion of property is closely linked with concerns about distributive justice and equality. Significant inequalities between individuals or groups which result from the unfettered exercise of property rights can be addressed within the justificatory structure of a property system (placing limits on what can be owned or how property rights can be exercised) or through separate appeals to equality or justice within a broader political theory. Rawls (1971) provides the ‘difference principle’ as part of his two principles of justice to protect against significant inequalities which might emerge through the various political institutions of his just state. The difference principle can be applied to any form of inequality within the state; applied to property it holds that differences in property rights are justifiable only if they are of the greatest benefit to those who are least advantaged. This would allow some inequalities within a property system, such as those which are required to provide sufficient incentive for some people to engage in risky, dangerous, or socially stigmatized activities where those activities benefit the least advantaged. It would also require that there be some decent minimum level of welfare for all members of the society and would limit the extent of difference between the most and least advantaged.

3. Property And Justification

Although conceptual analysis of property, property rights, and ownership have concerned philosophers and students of jurisprudence, by far the greater philosophical interest in property concerns its justification. The array of property rights identified by Honore as jointly constitutive of full ownership could be justified as a whole or separately. Some justifications of property are for mixed systems; so some specific property rights are justified by appeal to one kind of grounding while others may be justified by appeal to another grounding.

Proudhon (1890) famously argued that no private property could be justified. In writing ‘La propriete c’est le vol ’ (property is theft), he argued that any plausible justification of private property would both demand equality and would, thereby, prove self-defeating. On Proudhon’s view, whatever justified one person’s exclusive right to a thing, equally justified a similar right for all others. Given the scarcity or at least physical limits on potential objects of property, exclusive rights to property entailed unequal rights, hence one person’s exercise of private property rights constituted theft of another’s (potential or actual) property.

Despite Proudohn’s skepticism that any adequate justification of property could be developed, many political theorists have attempted to provide normative justifications for property. The justification of property rights has taken a number of (sometimes overlapping) forms, these include property rights justified by natural law; property rights justified by acquisition; property rights grounded in the desert of the laborer; property rights justified by appeal to utility; and property rights as necessary for the development of personality.

3.1 Natural Law

Locke (1690) offers both a natural law theory of property and a labor theory of property in the Second Treatise. First he argued that the earth and its bounty were given to mankind in common by God, such that each individual had the right to take some of the common bounty of nature to provide for life, preservation and comfort. The individual comes to own what is taken from the common, through the exercise of his natural liberty, the labor of his body. In the state of nature, property rights are limited: fruits taken from the common are for the individual’s use and must not be allowed to waste in a person’s possession. Further, the appropriator must leave ‘enough and as good’ bounty in the common for others. In the transformation from the state of nature to the civil state, property rules are formalized and the state takes on the responsibility of enforcing the property rights of citizens. Macpherson (1962) and Tully (1980) offer two interpretations of Locke’s argument: Macpherson arguing that Locke’s argument is essentially possessive individualist, so that the natural law grounding of property is de-emphasized and the protection of exclusive private property is emphasized. Tully, in contrast, argues that natural law limits to property extend into the political state, thus providing significant limitations to individual acquisition.

3.2 Acquisition

Nozick (1974) offers a contemporary libertarian justification for property drawing on Locke’s argument, with three significant differences from Locke’s argument. For Nozick, the earth and its products are initially unowned. Each individual comes to have legitimate private property rights in those things which he or she has legitimately acquired. Without the premises of common ownership or the aim of legitimate acquisition being the life, preservation and comfort of the acquirer, Nozick’s argument justifies largely unrestricted property rights and unlimited property acquisition. Nozick’s sole limitation of property rights is what he calls his ‘lockean proviso’ property rights can be limited if ‘the position of others no longer at liberty to use the thing is thereby worsened’ (Nozick 1974, p. 178). The situation of others is not worsened, however, by the restriction of liberty which they experience as a result of the thing becoming privately owned. Moreover, ‘worsening’ the situation of others through acquisition requires compensation, it does not curtail acquisition of the thing in question. Nozick is notoriously vague about which acts constitute acts of legitimate initial acquisition of unowned objects. Nozick’s view is further criticized for failing to provide an argument for the unilateral imposition of duties on all other individuals which follows from an act of acquisition.

3.3 Labor And Desert

Contemporary arguments which justify limited property rights grounded in labor and desert can be found in Becker (1977) and more recently Munzer (1990). On both accounts, a person’s (morally legitimate) labor to create, make available, or to improve something which was unowned grounds a claim to property. The person deserves some recompense for the labor expended, and this will often justify property rights in the improved thing or in the surplus value so generated. For Munzer, the laborers’ use of their bodies in the production of something or in the provision of a service gives them the basis for a property claim on the product or on wages. These claims are prima facie claims, they are qualified by the needs or rights of others, and by scarcity. Munzer recognizes that the work involved in production is a social activity, and thus argues that payment of wages should be commensurate with desert. It is unclear, however, how desert is to be measured against labor, given the great differences between individuals in capacity, talent, and opportunity.

3.4 Utility And Efficiency

Hume (1740) and Mill (1891) offer utilitarian justifications for property. A system of property rights which distinguishes what is one person’s from another’s is required for the efficient use of the earth’s resources. What the extent, limit, and scope of property rights should be, on a utilitarian account, is a matter of expediency and frequently involves balancing stability of expectations against efficient production and distribution. Hume favored custom and a fixed prescription of property rights, even if that approach allowed for considerable inefficiency. For Hume, inheritance and rights to alienate (sell, bequeath, or give) property acted as incentives for individuals to develop useful habits and accomplishments. Mill, by contrast, argued that the law of property ought to be used by the state to promote greater efficiency and a greater level of communal production of the goods needed within a society. Mill favored private property, but with limited rights of exclusive access and enjoyment of land so as to promote efficient exploitation. Mill recognized that property rights formed a bundle; each property right associated with ownership of a particular kind of property needed to be justified independently on the grounds of utility.

More contemporary utilitarian justifications of property concern themselves primarily with questions of efficiency in allocation of property rights. Economists in particular favor property systems grounded in efficiency, and argue for (somewhat moderated) capitalist relations of production and exchange as the most efficient way to respond to individual wants and needs. Philosophers emphasizing utility, rather than efficiency, are likely to justify mixed property systems (some public as well as some private property) which are roughly egalitarian, as the principle of utility can be directed to make interpersonal comparisons of individual preference satisfaction.

3.5 Property And Personality

Hegel (1821) argued that property is justified as an expression of human freedom. It is important to note, however, that Hegel does not ground property in natural freedom as natural law theorists, like Locke, sought to do. Property relations involve both a relationship between material objects and persons and relations among persons. In taking up an unowned object as property, the acquirer expresses his or her personality upon the object and gives the object value. In the absence of human actions of acquisition and use, material objects have no value and are useless. A human being can only develop—as a free moral agent—in the context of a community of other persons. To be a person is necessarily communal, it depends on recognition by others (Ryan 1984, p. 121). Each individual’s will can only be recognized by others through the individual’s impression of it on objects of property. Private property, then, is essential for personality. Ownership involves the impression of one’s personality on what is possessed, to the exclusion of others. One’s will or personality is embodied in the object. Waldron argues that Hegel’s account is a general-right based justification for private property: that private property is something which it is important for every person to have, so that the poverty and propertylessness of some individuals is something a property system ought to protect against (Waldron 1988). Property rights justified on Hegel’s account included possession, use, and alienation.

Radin (1993) offers a contemporary personality justification of property rights. Radin does not provide a fully developed argument for private property, but rather uses her argument to describe and evaluate existing property relations. Radin argues that at least some private property is required for the development of personhood, and that some things are so closely tied to personhood that they ought not to be commodified as property at all. Radin emphasizes a distinction between property relations based on personal attachment, property constitutive of personality as opposed to the more readily commodified, ‘fungible’ relations of property. Radin’s view is not entirely Hegelian, as it is strongly influenced by more traditional liberal conceptions of freedom and individualism, yet it is clearly distinguishable from utilitarian emphasis on economic efficiency and Lockean labor justifications of property.

3.6 Marxist Critiques

Most contemporary theorists writing on property, write against the backdrop of the Marxist critique of private property and its centrality to capitalist modes of production. Marx (1971) argued that private property systems presuppose and reproduce inequalities in power between those who have amassed sufficient wealth to become owners of capital (the means of production of goods) and those who are forced to sell their labor power in order to purchase those goods needed for life. Given the equal needs of all humans for the material necessities of life, workers who sell their labor power are open to exploitation by those who own capital. The capitalist pays the worker at the rate required for the subsistence and reproduction of labor, but sells the product produced through the worker’s labor at a price which exceeds the cost of the labor and the cost of the resources required to produce the product. The value added by the laborer’s efforts (surplus value) is taken by the owner of capital as profit. The degree to which workers are exploited depends on how much surplus value is appropriated by the capitalist. Further, capitalist modes of production involve various forms of alienation including the alienation of people from nature, of workers from the products of their collective labor, and of workers from their own labor power. This alienation, for Marx, is a distortion of human relations. The supposed expansion of freedom offered by private property which some liberal and libertarian theorists argue to defend private ownership, must be reconciled with the alienation and loss of freedom suffered by the propertyless under capitalism (Cohen 1981).

4. Ongoing Debates About Property

Current debates about property rights raise both fundamental questions about the relationship between property rights and state sovereignty and contextual questions about the appropriate limitation or expansion of property rights. One source of this discussion is response to the demand for recognition of indigenous people’s prior ownership of colonized lands in the New World and Australasia. Tully (1995), for example, argues that proper recognition of indigenous peoples, their forms of government, and their legal systems, including their property systems is required for the current legitimacy of states such as Canada, Australia, and the USA. This area of debate ties the justification of property systems to state legitimacy as well as demanding an account of international relations between states and justice in recognition of other states’ property systems.

Another current area of debate concerns conflicting interests in protection of property rights and protection of environmental values. Environmental ethicists have argued for greater limitation of property rights where those rights risk serious damage to the environment and have also argued for increasing the responsibilities of owners for long term damage to environmental values (Dodds 1994). Debate about whether ‘pollution taxes’ on factories that produce effluent unfairly constrain property rights or can act as an effective deterrent against pollution are among the issues concerning property and the environment.

A third area of considerable current debate about property involves the range of entities which are properly understood as property and as commodities, including ideas, human body parts, reproductive capacities, organisms, and electronic commodities. Radin (1996) challenges the ready extension of property rights allowing for sale and purchase of human tissue, embryos, sexual services, and other forms of property which she views as incompatible or threatening to personality. Other theorists argue that whether property rights are formally recognized over these things or not is irrelevant as there exists a market for these ‘goods’ and that will determine what is property, regardless of legal or moral attempts at constraining property (e.g., see Market and Nonmarket Allocation). Finally, with the growth of electronic commerce, a new field of property debate is also opening up as there will inevitably follow a need for legal determinations about property relations involving purely electronic commodities.

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