6

Ownership

6.1. The nature of ownership

6.1.1.The basis of ownership

As a working definition we may regard ownership as the ultimate property interest and the means by which we signify the person or persons with primary (but not necessarily exclusive) control of a thing. Such a definition requires us to separate the notions of ownership and property while acknowledging that the terms are often used, somewhat loosely, as synonyms. Property is a broad term which encompasses any interest in a thing whereby the interest holder acquires rights enforceable beyond the original parties to the transaction (or other means) by which the interest was acquired. Thus the term property extends to a range of diverse interests such as easements (such as a right of way over land) and choses in action (such as the benefit of a contract which is normally assignable and may thus be enforced by someone other than a party to the original contract). In contrast, ownership is a particular type of property interest in which the person designated as owner is deemed, in some sense at least, to have the greatest possible interest in the thing. As a subset of property it is consequently concerned with two quite separate sets of relations. The first is the owner’s relationship with other people (whether they be non-interest holders or subsidiary interest holders in the thing owned) and the second is the owner’s relationship to the thing itself.

6.1.1.1.Ownership and people

The concept of ownership is built upon the right to possess which, as we saw in Chapter 2, in both the private and communal property setting, can be seen as two individual rights which together enable the owner to protect and maintain his possession and hence his ownership. Against non-owners the owner has a primary right to exclude them from the thing owned and, as against fellow owners a primary right not to be so excluded. In private ownership the right to exclude is the most important of these two rights of possession because there will be many more non-owners than owners of the thing (although the right not to be excluded is still important where the thing is jointly owned – see Chapter 16). In contrast, in

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communal ownership the right not to be excluded is, for comparable reasons, of more significance (although likewise the right to exclude is still important where someone outside the community becomes involved; but cf. Blackburn J’s view in Milirrpum in section 5.3.6.1 above).

As you will see, neither of these rights are absolute, nor of much significance absent any other entitlements in the thing. They are, however, the rights that underscore ownership, for without them no other rights can be exercised. What, for example, is the point in owning this book if you have no means of excluding non-owners intent on excluding you. Similarly, what benefit arises from a resource being communally owned unless this gives individual members the right not to be excluded from its use.

6.1.1.2.Ownership and things

Ownership provides a bond between the individual and the inanimate. As Hegel argued, private ownership is an assertion of personality whereby the person ‘has as his substantive end the right of putting his will into any and every thing and thereby making it his’ (Hegel, Philosophy of Right, section 44). As Stillman has noted:

[P]roperty for Hegel is essential for men if they are to lead a full life of reason. In owning property, men act in the external world. They dominate Nature. They create social institutions. In shaping the natural and the social orders according to their intentions and goals, men develop and express their own capabilities; in reflecting on the results of their actions, they educate themselves about the world of actuality and about themselves and thereby prepare themselves for further action in the natural and social worlds. At the same time, men claim themselves, their minds and their bodies, as their own properties; from the right to property derive the rights to life and liberty, so that they are permanent subjects and actors, continuously shaping the natural and social worlds and themselves.

Property for Hegel is to be seen not merely as an economic category or the result of utilitarian calculus; not only as a result of labor or convention; not solely as a requisite for social stability or diversity. It is more. For Hegel property is a political and philosophical necessity, essential for the development.

(Stillman, ‘Property, Freedom and Individuality’, pp. 132–3)

A similar point is made, somewhat more caustically, by Kevin Gray:

Not so long ago I was talking with a couple of Martians at one of those seminars in Oxford organised by Professor Peter Birks. The visitors explained that they were engaged in a piece of joint research on the terrestrial concept of property – a mode of thinking which apparently finds no parallel within their own jurisdiction. The present paper is prompted in some measure by the conversations which I had with the Martian lawyers, for I was stimulated to look afresh, from perhaps a wider perspective, at the strange way in which we humans make claims of ‘property’ or ‘ownership’ in respect of the resources of the world . . .