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My Martian interlocutors reminded me of the highly anomalous nature, unparalleled within our own galaxy, of the terrestrial impulse to view external resources as belonging properly or exclusively to particular members of the human race. Social psychologists like Earnest Beaglehole used to speak of the ‘hidden nerve of irrational animism that binds the individual to the object he appropriates as his own’. [Beaglehole, Property: A Study in Social Psychology, p. 23] My Martian colleagues were especially intrigued by the fact that, in one of the earliest phrases articulated by almost every human child, there lies the strongest affirmation of this internalised concern to appropriate. The phrase, ‘It’s mine!’, is, of course, literally untranslatable into any of the Martian languages. Yet, as my friends pointed out, even our judges and legislators seem obsessed with the need to formulate human perceptions of the external world in the intangible terms of individualised ownership and ‘private property’. Our lives are in every respect dominated by an intuitive sense of property and belonging. (Gray, ‘Equitable Property’, pp. 157–8)
Gray’s cynicism is aimed at the relatively modern tendency, demonstrated for example in Hegel’s analysis, of regarding ownership solely in terms of private property. However, as Grunebaum demonstrates in Extract 3.3, it is quite possible to argue that communal ownership engenders a comparable bond between the community and the thing which provides a similar means by which the individual might develop.
6.1.2. An outline of the difficulties encountered in any consideration of ownership
‘What’, you might ask, ‘is so difficult about ownership?’ It is, after all, a word in common usage which, unlike many terms in property law, is readily understood by most people from an early age. As Kevin Gray noted above, and any parent will confirm, the cry ‘It’s mine’ (or its equivalent) is one of the first phrases learnt by the emerging infant as they begin to assert rights of (or at least claims to) ownership of various things in their new found world. Thereby displaying, in all its vulgar assertiveness, a certainty about ownership which enables us, in later life, to make decisions and enter into bargains confident in the knowledge as to the rights we are acquiring or forsaking when ownership changes hands. ‘Indeed’, notes the American jurist Bruce Ackerman (in Private Property and the Constitution, p. 116), ‘most of the time Layman negotiates his way through the complex web of property relationships that structures his social universe without even perceiving the need for expert guidance.’ Yet, despite such seeming certainty, the concept of ownership is more problematic than it would first appear for a number of quite distinct reasons.
6.1.2.1.The different meanings of ownership
Ownership is a difficult term because its meaning varies according to its context. As you will see repeatedly in this chapter (particularly in section 6.3), the use of ownership in one setting is often not relevant to how it is to be understood in a different setting.
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It is consequently important to bear in mind the limitations of the working definition we provided in section 6.1.1, for the reality is somewhat more complex.
6.1.2.2.Disagreements about ownership
Given this complexity, it is perhaps not surprising that the concept is a source of debate and disagreement. In his writings on property, William Blackstone defined ownership as ‘that sole and despotic dominium which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’ (Blackstone, Commentaries, Book II, Chapter 1, p. 2). This appears at variance with the modern habit (see Honore´ below) of conceiving of ownership in terms of a bundle of separate (but related) rights including the rights to use, possess and destroy. But this latter-day trend has in turn led Thomas Grey, among others, to argue (see Extract 6.1 below), that the ‘bundle of rights’ approach ‘tends . . . to dissolve the notion of ownership’ so that we ‘no longer need [such] a notion’ (Grey, ‘The Disintegration of Property’, p. 69). While others would argue that, for technical reasons, at least in the context of land law, we never have done (see the quote from Hargreaves at section 6.3.1.1 below). Waldron, on the other hand, suggests that ownership ‘expresses the abstract idea of an object being correlated with the name of an individual’ (Waldron, The Right to Private Property, p. 47) and in formulating his argument (see Extract 6.2 below) rejects the approaches of both Blackstone and Grey by noting that the liberties conferred by ownership are not unlimited (as Blackstone would appear to suggest) and by explicitly rejecting Grey’s submission (that the concept has no useful role to play).
Despite their seeming incompatibility, the divide between such views is less extreme than it at first appears. The quotation from Blackstone is an oft-cited favourite, much beloved of commentators. However, as Whelan has noted, ‘[s]ince this seems to be Blackstone’s clearest single statement on property, it is often quoted out of context’ (Whelan, ‘Property as Artifice’, p. 118) – with predictable consequences – for an entirely different picture emerges when one reads the paragraph from which the passage was extracted:
There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few, but will give themselves the trouble to consider the original and foundation of this right . . . We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow-creatures from a determinate spot of ground, because his father had done so before him; or why the occupier of a particular field or of a jewel, when lying on his deathbed, and no longer able to
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maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. (Blackstone, Commentaries, Book II, Chapter 1, p. 2)
From this perspective, it is clear that Blackstone did not regard ownership as a single all-embracing right but, as Whelan again notes, rather ‘a complex of different rights not accounted for by the simple notion of ‘‘sole and despotic dominion’’’ (Whelan, ‘Property as Artifice’, p. 119).
If we turn to the views of Grey, we will see a surprising degree of affinity with this position. Central to Grey’s thesis is the notion that the modern conception of property ‘fragments the unitary conception of ownership into a mere shadowy ‘‘bundle of rights’’’ (Grey, ‘The Disintegration of Property’, p. 69). Waldron likewise bases his analysis (but not his conclusion) explicitly on such a bundle. Thus, despite their obvious disagreements, all three appear to agree on the basics, conceiving of ownership in terms of a number of separate rights. As you will see in section 6.2 below, the ‘bundle of rights’ analysis (coupled with associated limitations) is the one constant to which most commentators subscribe (but cf. Penner, ‘The ‘‘Bundle of Rights’’’).
Before leaving this point, we should note that much of this chapter is devoted to materials drawn from the liberal tradition of ownership which regards the term as solely a private property concept. However, the ambit of ownership extends further and is equally applicable to common, communal and state property as Honore´ acknowledges when he admits the possibility of other formulations of the concept, be they ‘either primitive or sophisticated’, which do not correspond with his analysis of the ‘liberal notion of ownership’.
6.1.2.3.Contradictions within ownership
While property lawyers are, as we saw in Chapter 2, all too ready to disabuse novices concerning their lay notions as to the meaning of property, the same rigour is rarely applied to ownership. However, strictures regarding the fallacy of talking about ‘property as things’ are equally applicable to our habit of referring to the ‘thing’s owner’. Bentham’s observation that ‘in common speech in the phrase the object of a man’s property, the words the object of are commonly left out’ again provides an explanation as to how this arises. By conflating the ‘object’ with the ‘property that exists in the object’ ownership of property has come to be seen as simply ‘ownership of the object’ rather than ‘ownership of property in the object’. But as the essence of property is rights in respect of things, so ownership of property must be concerned with ownership of rights in respect of things. Thus, when we speak of the owner of a thing, the phrase is meaningless unless we mean by that the owner of rights in the thing. From this perspective, therefore, when we speak of ownership we are simply identifying in whom the property rights reside. This, after all, is what we are doing when we speak about the thing’s ‘owner’. We are using the term ‘owner’ to link the property rights that exist in the thing to the person (or persons) in whom those rights currently vest. It is, in other words, a useful shorthand by which we signify the