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Property is a system of
rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical theory ...
that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to
consume, alter,
share, redefine,
rent
Rent may refer to:
Economics
*Renting, an agreement where a payment is made for the temporary use of a good, service or property
*Economic rent, any payment in excess of the cost of production
*Rent-seeking, attempting to increase one's share of e ...
,
mortgage
A mortgage loan or simply mortgage (), in civil law jurisdicions known also as a hypothec loan, is a loan used either by purchasers of real property to raise funds to buy real estate, or by existing property owners to raise funds for any ...
,
pawn
Pawn most often refers to:
* Pawn (chess), the weakest and most numerous piece in the game
* Pawnbroker or pawnshop, a business that provides loans by taking personal property as collateral
Pawn may also refer to:
Places
* Pawn, Oregon, an his ...
,
sell,
exchange
Exchange may refer to:
Physics
*Gas exchange is the movement of oxygen and carbon dioxide molecules from a region of higher concentration to a region of lower concentration. Places United States
* Exchange, Indiana, an unincorporated community
* ...
,
transfer
Transfer may refer to:
Arts and media
* ''Transfer'' (2010 film), a German science-fiction movie directed by Damir Lukacevic and starring Zana Marjanović
* ''Transfer'' (1966 film), a short film
* ''Transfer'' (journal), in management studies
...
,
give away or destroy it, or to exclude others from doing these things,
as well as to perhaps
abandon it; whereas regardless of the nature of the property, the owner thereof has the right to properly use it under the granted
property rights
The right to property, or the right to own property (cf. ownership) is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typically h ...
.
In
economics
Economics () is the social science that studies the production, distribution, and consumption of goods and services.
Economics focuses on the behaviour and interactions of economic agents and how economies work. Microeconomics analyzes ...
and
political economy
Political economy is the study of how economic systems (e.g. markets and national economies) and political systems (e.g. law, institutions, government) are linked. Widely studied phenomena within the discipline are systems such as labour ...
, there are three broad forms of property:
private property,
public property
Public property is property that is dedicated to public use. The term may be used either to describe the use to which the property is put, or to describe the character of its ownership (owned collectively by the population of a state). This is in ...
, and
collective property
Collective ownership is the ownership of property by all members of a group. The breadth or narrowness of the group can range from a whole society to a set of coworkers in a particular enterprise (such as one collective farm). In the latter (narro ...
(also called
cooperative
A cooperative (also known as co-operative, co-op, or coop) is "an autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically-contro ...
property). Property that jointly belongs to more than one party may be possessed or controlled thereby in very similar or very distinct ways, whether simply or complexly, whether equally or unequally. However, there is an expectation that each party's will (rather discretion) with regard to the property be clearly defined and unconditional, to distinguish ownership and easement from rent. The parties might expect their wills to be
unanimous, or alternately every given one of them, when no opportunity for or possibility of a dispute with any other of them exists, may expect his, her, it's or their own will to be sufficient and absolute. The
first Restatement defines property as anything, tangible or intangible, whereby a legal relationship between persons and the State enforces a possessory interest or legal title in that thing. This mediating relationship between individual, property, and State is called a property regime.
In
sociology
Sociology is a social science that focuses on society, human social behavior, patterns of social relationships, social interaction, and aspects of culture associated with everyday life. It uses various methods of empirical investigation an ...
and
anthropology
Anthropology is the scientific study of humanity, concerned with human behavior, human biology, cultures, societies, and linguistics, in both the present and past, including past human species. Social anthropology studies patterns of be ...
, property is often defined as a relationship between two or more individuals and an object, in which at least one of these individuals holds a bundle of rights over the object. The distinction between "collective property" and "private property" is regarded as confusion since different individuals often hold differing rights over a single object.
Types of property include
real property (the combination of land and any improvements to or on the ground),
personal property (physical possessions belonging to a person), private property (property owned by legal persons, business entities or individual natural persons), public property (State-owned or publicly owned and available possessions) and
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
(exclusive rights over artistic
creations, inventions, etc.). However, the last is not always as widely recognized or enforced. An article of property may have physical and incorporeal parts. A
title
A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some languages, titles may be inserted between the f ...
, or a
right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical ...
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. The unqualified term "property" is often used to refer specifically to real property.
Overview
Property is often defined by the code of the local
sovereignty
Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
and protected wholly or more usually partially by such entity, the owner being responsible for any remainder of protection. The
standards of the proof concerning proofs of ownerships are also addressed by the code of the local sovereignty, and such entity plays a role accordingly, typically
somewhat managerial. Some philosophers assert that property
rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical theory ...
arise from
social convention, while others find justifications for them in
morality
Morality () is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of co ...
or in
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
.
Various scholarly disciplines (such as
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
,
economics
Economics () is the social science that studies the production, distribution, and consumption of goods and services.
Economics focuses on the behaviour and interactions of economic agents and how economies work. Microeconomics analyzes ...
,
anthropology
Anthropology is the scientific study of humanity, concerned with human behavior, human biology, cultures, societies, and linguistics, in both the present and past, including past human species. Social anthropology studies patterns of be ...
or
sociology
Sociology is a social science that focuses on society, human social behavior, patterns of social relationships, social interaction, and aspects of culture associated with everyday life. It uses various methods of empirical investigation an ...
) may treat the concept more systematically, but definitions vary, most particularly when involving
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
s.
Positive law defines such rights, and the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
can adjudicate and enforce property rights.
According to
Adam Smith, the expectation of profit from "improving one's stock of capital" rests on private property rights.
Capitalism
Capitalism is an economic system based on the private ownership of the means of production and their operation for profit. Central characteristics of capitalism include capital accumulation, competitive markets, price system, priva ...
has as a central assumption that property rights encourage their holders to develop the property, generate
wealth
Wealth is the abundance of valuable financial assets or physical possessions which can be converted into a form that can be used for transactions. This includes the core meaning as held in the originating Old English word , which is from an I ...
, and efficiently allocate
resources
Resource refers to all the materials available in our environment which are technologically accessible, economically feasible and culturally sustainable and help us to satisfy our needs and wants. Resources can broadly be classified upon their av ...
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 of the effects of property laws on inequality:
:: "Wherever there is a great property, there is great inequality … 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 some property against those who have none at all." (
Adam Smith, ''
Wealth of Nations
''An Inquiry into the Nature and Causes of the Wealth of Nations'', generally referred to by its shortened title ''The Wealth of Nations'', is the ''magnum opus'' of the Scottish economist and moral philosopher Adam Smith. First published in 1 ...
'')
In his text "The Common Law,"
Oliver Wendell Holmes describes property as having two fundamental aspects. The first, possession, can be defined as control over a resource based on the practical inability to contradict the ends of the possessor. The second title is the expectation that others will recognize rights to control resources, even when not in possession. He elaborates on 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.
*
Classical liberalism
Classical liberalism is a political tradition and a branch of liberalism that advocates free market and laissez-faire economics; civil liberties under the rule of law with especial emphasis on individual autonomy, limited government, econo ...
subscribes to the
labor theory of property
The labor theory of property (also called the labor theory of appropriation, labor theory of ownership, labor theory of entitlement, or principle of first appropriation) is a theory of natural law that holds that property originally comes about b ...
. They hold that individuals each own their own life; it follows that one must acknowledge the products of that life and that those products can be traded in free exchange with others.
:: "Every man has a property in his person. This nobody has a right to, but himself." (
John Locke, "
Second Treatise on Civil Government")
:: "The reason why men enter into society is the preservation of their property." (
John Locke, "Second Treatise on Civil Government")
:: "Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place." (
Frédéric Bastiat, ''
The Law'')
*
Conservatism
Conservatism is a cultural, social, and political philosophy that seeks to promote and to preserve traditional institutions, practices, and values. The central tenets of conservatism may vary in relation to the culture and civilizati ...
subscribes to the concept that freedom and property are closely linked. The more widespread the possession of the private property, the more stable and productive a state or nation is. Conservatives maintain the economic leveling of property, especially of the forced kind, is not economic progress.
:: "Separate property from private possession and Leviathan becomes master of all... Upon the foundation of private property, great civilizations are built. The conservative acknowledges that the possession of property fixes certain duties upon the possessor; he accepts those moral and legal obligations cheerfully." (
Russell Kirk
Russell Amos Kirk (October 19, 1918 – April 29, 1994) was an American political theorist, moralist, historian, social critic, and literary critic, known for his influence on 20th-century American conservatism. His 1953 book ''The Conservativ ...
, ''The Politics of Prudence'')
*
Socialism
Socialism is a left-wing Economic ideology, economic philosophy and Political movement, movement encompassing a range of economic systems characterized by the dominance of social ownership of the means of production as opposed to Private prop ...
's fundamental principles center on a critique of this concept, stating (among other things) that the cost of defending property exceeds the returns from private property ownership and that, even when property rights encourage their holders to develop their property or generate wealth, they do so only for their benefit, which may not coincide with advantage to other people or society at large.
*
Libertarian Socialism
Libertarian socialism, also known by various other names, is a left-wing,Diemer, Ulli (1997)"What Is Libertarian Socialism?" The Anarchist Library. Retrieved 4 August 2019. anti-authoritarian, anti-statist and libertarianLong, Roderick T. (2 ...
generally accepts property rights with a short abandonment period. In other words, a person must make (more-or-less) continuous use of the item or else lose ownership rights. This is usually referred to as "possession property" or "
usufruct
Usufruct () is a limited real right (or ''in rem'' right) found in civil-law and mixed jurisdictions that unites the two property interests of ''usus'' and ''fructus'':
* ''Usus'' (''use'') is the right to use or enjoy a thing possessed, direct ...
." Thus, in this usufruct system, absentee ownership is illegitimate, and workers own the machines or other equipment they work with.
*
Communism
Communism (from Latin la, communis, lit=common, universal, label=none) is a far-left sociopolitical, philosophical, and economic ideology and current within the socialist movement whose goal is the establishment of a communist society, a ...
argues that only
common ownership of the
means of production
The means of production is a term which describes land, labor and capital that can be used to produce products (such as goods or services); however, the term can also refer to anything that is used to produce products. It can also be used as an ...
will assure the minimization of unequal or unjust outcomes and the maximization of benefits and that; therefore humans should abolish private ownership of
capital (as opposed to property).
Both communism and some forms of socialism have also upheld the notion that private ownership of capital is inherently illegitimate. This argument centers on the idea that private ownership of capital always benefits one
class
Class or The Class may refer to:
Common uses not otherwise categorized
* Class (biology), a taxonomic rank
* Class (knowledge representation), a collection of individuals or objects
* Class (philosophy), an analytical concept used differentl ...
over another, giving rise to domination through this privately owned capital. Communists do not oppose personal property that is "hard-won, self-acquired, self-earned" (as "
The Communist Manifesto
''The Communist Manifesto'', originally the ''Manifesto of the Communist Party'' (german: Manifest der Kommunistischen Partei), is a political pamphlet written by German philosophers Karl Marx and Friedrich Engels. Commissioned by the Commu ...
" puts it) by members of the
proletariat. Both socialism and communism distinguish carefully between private ownership of capital (land, factories, resources, etc.) and private property (homes, material objects, and so forth).
Types of property
Most
legal systems distinguish between different types of property, especially between land (
immovable property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
,
estate in land
An estate in land is, in the law of England and Wales, an interest in real property that is or may become possessory. It is a type of personal property and encompasses land ownership, rental and other arrangements that give people the right to us ...
,
real estate
Real estate is property consisting of land and the buildings on it, along with its natural resources such as crops, minerals or water; immovable property of this nature; an interest vested in this (also) an item of real property, (more general ...
,
real property) and all other forms of property—
goods
In economics, goods are items that satisfy human wants
and provide utility, for example, to a consumer making a purchase of a satisfying product. A common distinction is made between goods which are transferable, and services, which are not t ...
and
chattels,
movable property
property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables—any property that can be moved fr ...
or
personal property, including the
value of legal tender if not the
legal tender itself, as the
manufacturer
Manufacturing is the creation or production of goods with the help of equipment, labor, machines, tools, and chemical or biological processing or formulation. It is the essence of secondary sector of the economy. The term may refer to ...
rather than the possessor might be the owner. They often distinguish
tangible
Tangibility is the property of being able to be perceived by touch. A commonplace understanding of "tangibility" renders it as an attribute allowing something to be perceptible to the senses.
In criminal law, one of the elements of an offense ...
and
intangible property
Intangible property, also known as incorporeal property, is something that a person or corporation can have ownership of and can transfer ownership to another person or corporation, but has no physical substance, for example brand identity or ...
. One categorization scheme specifies three species of property: land, improvements (immovable man-made things), and personal property (movable man-made things).
In
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
,
real property (
immovable property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
) 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
lease
A lease is a contractual arrangement calling for the user (referred to as the ''lessee'') to pay the owner (referred to as the ''lessor'') for the use of an asset. Property, buildings and vehicles are common assets that are leased. Industrial ...
s,
licenses, and
easement
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...
s.
Throughout the last centuries of the
second millennium
File:2nd millennium montage.png, From top left, clockwise: in 1492, Christopher Columbus reaches North America, opening the European colonization of the Americas; the American Revolution, one of the late 1700s Enlightenment-inspired Atlantic Re ...
, with the development of more complex theories of property, the concept of personal property had become divided into tangible property (such as
cars
A car or automobile is a motor vehicle with wheels. Most definitions of ''cars'' say that they run primarily on roads, Car seat, seat one to eight people, have four wheels, and mainly transport private transport#Personal transport, people in ...
and
clothing
Clothing (also known as clothes, apparel, and attire) are items worn on the body. Typically, clothing is made of fabrics or textiles, but over time it has included garments made from animal skin and other thin sheets of materials and natural ...
) and intangible property (such as
financial asset
A financial asset is a non-physical asset whose value is derived from a contractual claim, such as bank deposits, bonds, and participations in companies' share capital. Financial assets are usually more liquid than other tangible assets, such a ...
s and related rights, including
stocks and
bonds;
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
, including
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...
s,
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
s and
trademark
A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from othe ...
s;
digital files;
communication channel
A communication channel refers either to a physical transmission medium such as a wire, or to a logical connection over a multiplexed medium such as a radio channel in telecommunications and computer networking. A channel is used for informa ...
s; and certain forms of
identifier, including
Internet domain names
A domain name is a string that identifies a realm of administrative autonomy, authority or control within the Internet. Domain names are often used to identify services provided through the Internet, such as websites, email services and more. As ...
, some forms of
network address
A network address is an identifier for a node or host on a telecommunications network. Network addresses are designed to be unique identifiers across the network, although some networks allow for local, private addresses, or locally administer ...
, some forms of
handle
A handle is a part of, or attachment to, an object that allows it to be grasped and manipulated by hand. The design of each type of handle involves substantial ergonomic issues, even where these are dealt with intuitively or by following tr ...
and again trademarks).
Treatment of intangible property is such that an article of property is, by law or otherwise by traditional conceptualization, subject to expiration even when
inheritable, which is a key distinction from tangible property. Upon expiration, the property, if of the intellectual category, becomes a part of
public domain
The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired, ...
, to be used by but not owned by anybody, and possibly used by more than one party simultaneously due to the inapplicability of
scarcity
In economics, scarcity "refers to the basic fact of life that there exists only a finite amount of human and nonhuman resources which the best technical knowledge is capable of using to produce only limited maximum amounts of each economic good. ...
to intellectual property. Whereas things such as communications channels and pairs of electromagnetic spectrum bands and signal transmission power can only be used by a single party at a time, or a single party in a divisible context, if owned or used. Thus far or usually, those are not considered property, or at least not private property, even though the party bearing right of exclusive use may transfer that right to another.
In many societies the
human body is considered property of some kind or other. The question of the ownership and rights to one's body arise in general in the discussion of
human rights
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
, including the specific issues of slavery, conscription, rights of children under the age of majority, marriage, abortion, prostitution, drugs, euthanasia and organ donation.
Related concepts
Of the following, only sale and at-will sharing involve no encumbrance.
Violation
Miscellaneous action
Issues in property theory
Principle
The two major justifications are given for the original property, or the homestead principle, 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 (philosophy), telos of property, i.e., what is the purpose of property? His answer: to solve the scarcity problem. Only when items are relatively scarce concerning people's desires, do they become property. 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—incorporeal 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 the things don't have the exclusivity property (however, those who support a scarcity justification may still support other "intellectual property" laws such as Copyright, as long as these are a subject of
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
instead of government arbitration). Thus even ardent propertarians may disagree about IP. By either standard, one's body is one's property.
From some anarchism, 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
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
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. In contrast, requesting one's own body requires absolutely no state intervention. So some anarchists don't believe in property at all.
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 entirely different: "general collective ownership"—i.e.
common ownership. Also, the same term is sometimes used by Statism, statists to mean government-owned property that the general public is allowed to access (
public property
Public property is property that is dedicated to public use. The term may be used either to describe the use to which the property is put, or to describe the character of its ownership (owned collectively by the population of a state). This is in ...
). Law in all societies has tended to reduce 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. At the same time, critics say 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
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
), 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 (although in most nations, animals are tied to the land. In the United States and Canada, wildlife is generally defined in statute as property of the State. This public ownership of wildlife is referred to as the North American Model of Wildlife Conservation and is based on The Public Trust Doctrine.), 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. However, children in most modern communities theoretically own their bodies but are not regarded as competent to exercise their rights. Their parents or legal guardian, guardians are given most of the fundamental 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 sacred sites owned by the spiritual body that runs them.
Intellectual property and air (airspace, no-fly zone, pollution laws, which can include tradable emissions trading, 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, mineral rights, development rights, air rights, and such other rights as may be worth segregating from simple land ownership.
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 Juristic person, legal entities, such as corporations, Trust law, trusts and nations (or governments) own property.
In many countries women have limited access to property following restrictive inheritance and family laws, under which only men have actual or formal rights to own property.
In the Inca empire, the dead emperors, considered gods, still controlled property after death.
Government interference
In 17th-century England, the legal directive that nobody may enter a home (which in the 17th century would typically have been male-owned) unless by the owner's invitation or consent, was established as common law in Sir Edward Coke 's "Institutes of the Lawes of England." "For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge]." It is the origin of the famous dictum, "an Englishman's home is his castle".
The ruling enshrined into law what several English writers had espoused in the 16th century.
Unlike the rest of Europe the British had a proclivity towards owning their own homes.
British Prime Minister William Pitt, 1st Earl of Chatham defined the meaning of castle in 1763, "The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter."
That principle was carried to the United States. Under U.S. 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. 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. On the other hand, some governmental regulations of property use have been deemed so severe that they have been considered "regulatory takings." Moreover, conduct is sometimes deemed only a nuisance, or another tort has been held a taking of property where the conduct was sufficiently persistent and severe.
Theories
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. Perhaps one of the most popular is the natural rights definition of property rights as advanced by
John Locke. Locke advanced the theory that God granted dominion over nature to man through Adam in the book of Genesis. Therefore, he theorized 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." (see Lockean proviso)
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 after that to hold it as his very own."
Anthropology studies the diverse ownership systems, rights of use and transfer, and possession under the term "theories of property." As mentioned, western legal theory is based 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 subjects of custom and regulation, and "law" is where the term can meaningfully be applied. Many tribal cultures balance individual rights with the laws of collective groups: tribes, families, associations, and nations. For example, the 1839 Cherokee Constitution frames the issue in these terms:
Communal property systems describe ownership as belonging to the entire social and political unit. Common ownership in a hypothetical communist society is distinguished from primitive forms of common property that have existed throughout history, such as Communalism (Bookchin), Communalism and primitive communism, in that communist common ownership is the outcome of social and technological developments leading to the Post-scarcity, elimination of material scarcity in society.
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. In a well-known paper that contributed to the creation of the field of law and economics in the late 1960s, the American scholar Harold Demsetz described how the concept of property rights makes social interactions easier:
Different societies may have other theories of property for differing types of ownership. For example, 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.
Property in philosophy
In medieval and Renaissance Europe the term "property" essentially referred to land. After much rethinking, land 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 monarchy, monarchies.
Ancient philosophy
Urukagina, the king of the Sumerian city-state Lagash, established the first laws that forbade compelling the sale of property.
The Bible in Leviticus 19:11 and ibid. 19:13 states that the Israelites are not to steal.
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. Everyone thinks chiefly of his own, hardly at all of the common interest, and only when he is himself concerned as an individual."
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''
Cicero held that there is no private property under
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
but only under human law. Seneca the Younger, Seneca viewed property as only becoming necessary when men become avaricious. St. Ambrose later adopted this view and St. Augustine even derided heretics for complaining the Emperor could not confiscate property they had labored for.
Medieval philosophy
Thomas Aquinas (13th century)
The canon law ''Decretum Gratiani'' maintained that mere human law creates property, repeating the phrases used by St. Augustine. St. Thomas Aquinas agreed with regard to the private consumption of property but modified patristic theory in finding that the private possession of property is necessary. Thomas Aquinas concludes that, given certain detailed provisions,
* it is natural for man to possess external things
* it is lawful for a man to possess a thing as his own
* The essence of theft consists in taking another's thing secretly
* Theft and robbery are sins of different species, and robbery is a more grievous sin than theft
* theft is a sin; it is also a mortal sin
* it is, however, lawful to steal through stress of need:" in cases of need, all things are common property."
Modern philosophy
Thomas Hobbes (17th century)
The principal writings of Thomas Hobbes appeared between 1640 and 1651—during and immediately following First English Civil War, the war between forces loyal to King Charles I of England, 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.
James Harrington (17th century)
A contemporary of Hobbes, James Harrington (author), James Harrington, reacted to the same tumult differently: he considered property natural but not inevitable. The author of "Oceana (book), 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 when the commoners have half a nation's property, with the crown and nobility holding the other half—a circumstance fraught with instability and violence. He suggested a much better situation (a stable republic) would exist once the commoners own most property.
In later years, the ranks of Harrington's admirers included American revolutionary and founder John Adams.
Robert Filmer (17th century)
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 still, 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.
John Locke (17th century)
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 House of Stuart, Stuart family be uniquely descended from the patriarchs of the Bible, and even in the late 17th century, that was a difficult view to uphold, Locke attacked Filmer's views in his Two Treatises of Government#First Treatise, 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 each of the unhappy residents which are willing to create a social contract because otherwise, "the enjoyment of the property he has in this state is very unsafe, very insecure," and therefore, the "great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property." They would, he allowed, create a monarchy, but its task would be to execute the will of an elected legislature. "To this end" (to achieve the previously specified goal), he wrote, "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, 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 anyone 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 themselves up 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..."
Both "persons" and "estates" are to be protected from the arbitrary power of any magistrate, including legislative power and will." 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
The labor theory of property (also called the labor theory of appropriation, labor theory of ownership, labor theory of entitlement, or principle of first appropriation) is a theory of natural law that holds that property originally comes about b ...
.
David Hume (18th century)
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 polemical works on religion and his empiricism-driven philosophical skepticism, skeptical epistemology, Hume's views on law and property were quite conservative.
He did not believe in hypothetical contracts or the love of humanity 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 the 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 due to 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."
Therefore, Hume's view was that there are property rights because of and to the extent that the existing law, supported by social customs, secure them. He offered some practical home-spun advice on the general subject, though, as when he referred to avarice as "the spur of Private industry, industry," and expressed concern about excessive levels of taxation, which "destroy industry, by engendering despair."
Adam Smith
"The property that every man has in his labour is the original foundation of all other property, so it is the most sacred and inviolable. The inheritance of a poor man lies in the strength and dexterity of his hands, and to hinder him from employing this strength and dexterity in what manner he thinks proper without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty of the workman and those who might be disposed to employ him. It hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper. To judge whether he is fit to be employed may surely be trusted to the discretion of the employers whose interest it so much concerns. The affected anxiety of the law-giver lest they should employ an improper person is as impertinent as it is oppressive."
— (Source:
Adam Smith, ''The Wealth of Nations'', 1776, Book I, Chapter X, Part II.)
By the mid 19th century, the industrial revolution had transformed England and the United States and had begun in France. As a result, the conventional conception of what constitutes property expanded beyond land to encompass scarce goods. In France, the revolution of the 1790s had led to large-scale confiscation of land formerly owned by the church and king. The restoration of the monarchy led to claims by those dispossessed to have their former lands returned.
Karl Marx
Section VIII, "Primitive accumulation of capital, Primitive Accumulation" of Capital involves a critique of Liberal Theories of property rights. Marx notes that under Feudal Law, peasants were legally entitled to their land as the aristocracy was to its manors. Marx cites several historical events in which large numbers of the peasantry were removed from their lands, then seized by the nobility. This seized land was then used for commercial ventures (sheep herding). Marx sees this "Primitive Accumulation" as integral to the creation of English Capitalism. This event created a sizeable un-landed class that had to work for wages to survive. Marx asserts that liberal theories of property are "idyllic" fairy tales that hide a violent historical process.
Charles Comte: legitimate origin of property
Charles Comte, in "Traité de la propriété" (1834), attempted to justify the legitimacy of private property in response to the Bourbon Restoration in France, 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."
Comte, as Proudhon later did, rejected Roman law, Roman legal tradition with its toleration of slavery. Instead, 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." Later theorists would use Comte's analysis in response to the socialist critique of property.
Pierre-Joseph Proudhon: property is theft
In his 1840 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
Usufruct () is a limited real right (or ''in rem'' right) found in civil-law and mixed jurisdictions that unites the two property interests of ''usus'' and ''fructus'':
* ''Usus'' (''use'') is the right to use or enjoy a thing possessed, direct ...
) is more nuanced. He asserts that land itself cannot be property, yet it should be held by individual possessors as stewards of humanity, with the product of labor being the producer's property. 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 work 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 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: property is value
Frédéric Bastiat 's main treatise on property can be found in chapter 8 of his book "Economic Harmonies" (1850). In a radical departure from traditional property theory, he defines property, not as a physical object, but rather as a relationship between people concerning a thing. 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 object's value. By "value," Bastiat means "market value"; he emphasizes this is quite different from utility. "In our relations with one another, we are not owners of the utility of things, but their value, and value is the appraisal made of reciprocal services."
Bastiat theorized 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 humanity. "Since the human race began in greatest poverty, that is, when there were the most obstacles to overcome, all that has been achieved from one era to the next is due to the spirit of property."
This transformation of private property into the communal domain, Bastiat points out, does not imply that personal property will ever totally disappear. On the contrary, this is because man, as he progresses, continually invents new and more sophisticated needs and desires.
Andrew J. Galambos: a precise definition of property
Andrew Joseph Galambos, Andrew J. Galambos (1924–1997) was an astrophysicist and philosopher who innovated a social structure that sought to maximize human peace and freedom. Galambos' concept of property was essential to his philosophy. He defined property as a man's life and all non-procreative derivatives of his life. (Because the English language is deficient in omitting the feminine from "man" when referring to humankind, it is implicit and obligatory that the feminine is included in the term "man.")
Galambos taught that property is essential to a non-coercive social structure. He defined freedom as follows: "Freedom is the societal condition that exists when every individual has full (100%) control over his property." Galambos defines property as having the following elements:
* Primordial property, which is an individual's life
* Primary property, which includes ideas, thoughts, and actions
* Secondary property includes all tangible and intangible possessions that are derivatives of the individual's primary property.
Property includes all non-procreative derivatives of an individual's life; this means children are not the property of their parents. and "primary property" (a person's own ideas).
Galambos repeatedly emphasized that actual government exists to protect property and that the State attacks property.
For example, the State requires payment for its services in the form of taxes whether or not people desire such services. Since an individual's money is his property, the confiscation of money in the form of taxes is an attack on property. Military conscription is likewise an attack on a person's primordial property.
Contemporary views
Contemporary political thinkers who believe that natural persons enjoy rights to own property and enter into contracts espouse two views about John Locke. On the one hand, some admire Locke, such as William Harold Hutt, William H. Hutt (1956), who praised Locke for laying down the "quintessence of individualism." On the other hand, those such as Richard Pipes regard Locke's arguments as weak and think 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 Polar, Hernando de Soto has argued that an essential characteristic of the capitalist market economy is the functioning state protection of property rights in a formal property system which records ownership and transactions. These property rights and the whole legal system of property make possible:
* Greater independence for individuals from local community arrangements to protect their assets
* Clear, provable, and protectable ownership
* The standardization and integration of property rules and property information in a country as a whole
* Increased trust arising from a greater certainty of punishment for cheating in economic transactions
* More formal and complex written statements of ownership that permit the more straightforward assumption of shared risk and ownership in companies, and insurance against the risk
* Greater availability of loans for new projects since more things can serve as collateral for the loans
* Easier access to and more reliable information regarding such things as credit history and the worth of assets
* Increased fungibility, standardization, and transferability of statements documenting the ownership of property, which paves the way for structures such as national markets for companies and the easy transportation of property through complex networks of individuals and other entities
* Greater protection of biodiversity due to minimizing of shifting agriculture practices
According to de Soto, all of the above enhance economic growth. Academics have criticized the capitalist frame through which property is viewed pointing to the fact that commodifying property or land by assigning it monetary value takes away from the traditional cultural heritage, particularly from first nation inhabitants.
[Kristen A. Carpenter, Sonia Katyal, and Angela Riley, 'In Defense of Property' [2009] 118 Yale L J 101, 101–117, 124–138][Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 1013-15 (1982)] These academics point to the personal nature of property and its link to identity being irreconcilable with wealth creation that contemporary Western society subscribes to.
See also
* Allemansrätten
* Anarchism
* Binary economics
* Buying agent
*
Capitalism
Capitalism is an economic system based on the private ownership of the means of production and their operation for profit. Central characteristics of capitalism include capital accumulation, competitive markets, price system, priva ...
*
Communism
Communism (from Latin la, communis, lit=common, universal, label=none) is a far-left sociopolitical, philosophical, and economic ideology and current within the socialist movement whose goal is the establishment of a communist society, a ...
* Homestead principle
* Immovable property
* Inclusive Democracy
* International Property Rights Index
* Labor theory of property
* Land (economics)
* Libertarianism
* Lien
* Off plan
* Ownership society
* Family patrimony, Patrimony
* Personal property
* Propertarian
* Property is theft
* Property law
* Property rights (economics)
*
Socialism
Socialism is a left-wing Economic ideology, economic philosophy and Political movement, movement encompassing a range of economic systems characterized by the dominance of social ownership of the means of production as opposed to Private prop ...
* Sovereignty
* Taxation as theft
* Interpersonal relationship
* Public liability
Property-giving (legal)
* Charity (virtue), Charity
* Essenes
* Gift
* Kibbutz
* Monasticism
* Tithe, Zakat (modern sense)
Property-taking (legal)
* Adverse possession
* Confiscation
* Eminent domain
* Fine of lands, Fine
* Jizya
* Nationalization
* Regulation, Regulatory fees and costs
* Search and seizure
* Tariff
* Tax
* Turf and twig (historical)
* Tithe, Zakat (historical sense)
* Revised statute 2477, RS 2477
Property-taking (illegal)
* Theft
References
Bibliography
* Frédéric Bastiat, Bastiat, Frédéric, 1850. ''Economic Harmonies.'' W. Hayden Boyers.
* Bastiat, Frédéric, 1850
"The Law" tr. Dean Russell.
* Tom Bethell, Bethell, Tom, 1998. "The Noblest Triumph: Property and Prosperity through the Ages." New York: St. Martin's Press.
* William Blackstone, Blackstone, William, 1765–69.
Commentaries on the Laws of England, 4 vols. Oxford Univ. Press. Especially Books the Second and Third.
* Hernando de Soto Polar, De Soto, Hernando, 1989. "The Other Path". Harper & Row.
* De Soto, Hernando, and Francis Cheneval, 2006.
Realizing Property Rights'. Ruffer & Rub.
* Ellickson, Robert, 1993. " ", ''Yale Law Journal'' 102: 1315–1400.
* Mckay, John P., 2004, "A History of World Societies". Boston: Houghton Mifflin Company
* Palda, Filip (2011) "Pareto's Republic and the New Science of Peace" 201
chapters online. Published by Cooper-Wolfling.
* Richard Pipes, Pipes, Richard, 1999. "Property and Freedom". New York: Knopf Doubleday.
External links
*
Concepts of Property Hugh Breakey, Internet Encyclopedia of Philosophy
Tibor Machan, Internet Encyclopedia of Philosophy
*
"Property and Ownership"Jeremy Waldron, The Stanford Encyclopedia of Philosophy (Winter 2016 Edition), Edward N. Zalta (ed.).
{{authority control
Property,
Economic anthropology
Social inequality
Environmental social science concepts