188 Property Law
In our everyday language, we tend to speak of these rights as if they attached to things. Thus we ‘deposit our money in the bank’, as if we were putting a thing in a place; but really we are creating a complex set of abstract claims against an abstract legal institution. We are told that, as insurance policy holders we ‘own a piece of the rock’; but we really have other abstract claims against another abstract institution. We think of our share of stock in Megabucks Corporation as part ownership in the Megabucks factory outside town; but really the Megabucks board of directors could sell the factory and go into another line of business and we would still have the same claims on the same abstract corporation.
Property rights cannot any longer be characterized as ‘rights of ownership’ or as ‘rights in things’ by specialists in property. What, then, is their special characteristic? How do property rights differ from rights generally from human rights or personal rights or rights to life or liberty, say? Our specialists and theoreticians have no answer; or rather, they have a multiplicity of widely differing answers, related only in that they bear some association or analogy, more or less remote, to the common notion of property as ownership of things . . . The conclusion of all this is that discourse about property has fragmented into a set of discontinuous usages. The more fruitful and useful of these usages are those stipulated by theorists; but these depart drastically from each other and from common speech. Conversely, meanings of ‘property’ in law that cling to their origin in the thing-ownership conception are integrated least successfully into the general doctrinal framework of law, legal theory, and economics. It seems fair to conclude from a glance at the range of current usages that the specialists who design and manipulate the legal structures of the advanced capitalist economies could easily do without using the term ‘property’ at all.
Notes and Questions 6.1
1Do you agree that the bundle of rights thesis (which we examine in detail in section 6.3 below) necessarily ‘dissolve[s] the notion of ownership’?
2If you dissect a frog for the purposes of scientific analysis, does that dissolve the notion of frogs or simply help explain how frogs function? Admittedly, ownership is an intangible construct but that surely makes it, if anything, easier to subject to analytical scrutiny (and a lot less messy!).
3Should it matter whether the thing you own is tangible or intangible especially when the rights you own in the thing are always, by definition, intangible? While property law’s unexpected pre-occupation with abstractions confounds our initial expectations, it does not follow from this that ownership is thereby undermined.
4Does Grey’s analysis prove anything except that ownership is more complex than one might initially imagine?
5How would Grey distinguish ‘ownership’ from ‘property’? Do you agree with his distinction?
Ownership 189
Extract 6.2 Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), Chapter 2
1 . S C E P T I C I S M A B O U T P R I V A T E P R O P E R T Y
Although private property has found its way again to the forefront of attention in jurisprudence and political philosophy, serious discussion is hampered by the lack of a generally accepted account of what private property is and how it is to be contrasted with alternative systems of property rules. As Tawney pointed out:
It is idle . . . to present a case for or against private property without specifying the particular forms of property to which reference is made, and the journalist who says that ‘private property is the foundation of civilisation’ agrees with Proudhon, who said it was theft, in this respect at least that, without further definition, the words of both are meaningless. (Tawney, ‘Property and Creative Work’, p. 136)
Many writers have argued that it is, in fact, impossible to define private property – that the concept itself defies definition. If those arguments can be sustained, then a work like this is misconceived. If private property is indefinable, it cannot serve as a useful concept in political and economic thought: nor can it be a point of interesting debate in political philosophy. Instead of talking about property systems, we should focus perhaps on the detailed rights that particular people have to do certain things with certain objects, rights which vary considerably from case to case, from object to object, and from legal system to legal system. But, if these sceptical arguments hold, we should abandon the enterprise of arguing about private property as such – of saying that it is, or is not, conducive to liberty, prosperity, or rights – because the term does not pick out any determinate institution for consideration.
Why has private property been thought indefinable? Consider the relation between a person (call her Susan) and an object (say, a motor car) generally taken to be her private property. The layman thinks of this as a two-place relation of ownership between a person and a thing: Susan owns that Porsche. But the lawyer tells us that legal relations cannot exist between people and Porsches, because Porsches cannot have rights or duties or be bound by or recognise the rule. The legal relation involved must be a relation between persons – between Susan and her neighbours, say, or Susan and the police, or Susan and everyone else. But when we ask what this relation is, we find that the answer is not at all simple. With regard to Susan’s Porsche, there are all sorts of legal relations between Susan and other people. Susan has a legal liberty to use it in certain ways; for example, she owes no duty to anyone to refrain from putting her houseplants in it. But that is true only of some of the ways that the car could (physically) be used. She is not at liberty to drive it on the footpath or to drive it anywhere at a speed faster than 70 mph. Indeed, she is not at liberty to drive it at all without a licence from the authorities. As well as her liberties, Susan also has certain rights. She has what Hohfeld called a ‘claim-right’ against everyone else (her neighbours, her friends, the local car thief, everyone in the community) that they should not use her Porsche without her permission. But Susan also owes certain duties to other people in relation to the vehicle. She must keep it in good order and see that it does not
190 Property Law
become a nuisance to her neighbours. She is liable to pay damages if it rolls into her neighbour’s fence. These rights, liberties, and duties are the basic stuff of ownership. But legal relations can be changed, and, if Susan owns the Porsche, then she is in a position to change them. She has the power to sell it or give it to somebody else, in which case all the legal relations change: Susan takes on the duties (and limited rights) of a non-owner of the Porsche and someone else takes on the rights, liberties, duties, and powers of ownership. Or perhaps Susan lends or hires the car; that involves a temporary and less extensive change in legal relations. She can bequeath the car in her will so that someone else will take over her property rights when she dies. These are her powers to change her legal situation and that of others. She may also, in certain circumstances, have her own legal position altered in relation to the Porsche: for instance, she is liable to have the car seized in execution of a judgment summons for debt. All these legal relations are involved in what we might think of as a clear case, indeed a paradigm, of ownership. Private property, then, is not only a simple relation between a person and a thing, it is not a simple relationship at all. It involves a complex bundle of relations, which differ considerably in their character and effect.
If that were all, there would be no problem of definition: private property would be a bundle of rights, but if it remained constant for all or most of the cases that we want to describe as private property, the bundle as a whole could be defined in terms of its contents. But, of course, it does not remain constant, and that is where the difficulties begin.
Each of the legal relations involved in Susan’s ownership of the Porsche is not only distinct, but in principle separable, from each of the others. It is possible, for example, that someone has a liberty to use an automobile without having any of the other rights or powers which Susan has. Because they are distinct and separable, the component relations may be taken apart and reconstituted in different combinations, so that we may get smaller bundles of the rights that were involved originally in this large bundle we called ownership. But when an original bundle is taken apart like this and the component rights redistributed among other bundles, we are still inclined, in our ordinary use of these concepts, to say that one particular person – the holder of one of the newly constituted bundles – is the owner of the resource. If Susan leases the car to her friend Blair so that he has exclusive use of the Porsche in return for a cash payment, we may still say that Susan is really the car’s owner even though she does not have many of the rights, liberties, and powers outlined in the previous paragraph. We say the same about landlords, mortgagors, and people who have conceded various encumbrances, like rights of way, over their real estate: they are still the owners of the pieces of land in question. But the legal position of a landlord is different from that of a mortgagor, different again from that of someone who has yielded a right of way, and different too from that of a person who has not redistributed any of the rights in his original bundle: depending on the particular transactions that have taken place, each has a different bundle of rights. If lay usage still dignifies them all with the title ‘owner’ of the land in question, we are likely to doubt whether the concept of ownership, and the concept of private property that goes with it, are doing very much work at all. The lawyer, certainly, who is concerned with the day-to-day affairs of all these people, will not be interested in finding out which of them really counts as an owner. His only concern is with
Ownership 191
the detailed contents of the various different bundles of legal relations (for a particularly strong statement of this view, see Grey, ‘Disintegration of Property’ [Extract 6.1 above]).
As if that were not enough, there are other indeterminacies in the concept of ownership. In America, an owner can leave his goods in his will to more or less anyone he pleases. But an owner’s liberty in this respect is not so great in England; it is even more heavily curtailed by statute law in, say, New Zealand: and in France the operation of the doctrine of legitima portio casts a different complexion on wills, bequest, and inheritance altogether. What does this show? Does it show that the French have a different concept of ownership from the Americans and the English, so that it is a linguistic error to translate ‘proprie´te´’ as ‘ownership’? Or does it show that the power of transmissibility by will is not part of the definition of ownership, but only contingently connected with it? If we take the former alternative, we are left with the analytically untidy situation in which we have as many ambiguities in the term ‘ownership’ as there are distinct legal systems (and indeed distinct momentary legal systems – for each may change in this respect over time). But if we take the latter option, we run the risk of leaving the concept of ownership without any essential content at all. It will become rather like substance in Locke’s epistemology: a mere substratum, a hook on which to hang various combinations of legal relations.
In fact, I think many legal scholars now do take this latter option. In their view, the term ‘ownership’ serves only as an indication that some legal relations, some rights, liberties, powers, etc., are in question. On their view, the term does not convey any determinate idea of what these legal relations are. In every case, we have to push the words ‘ownership’ and ‘private property’ aside and look to the detail of the real legal relations involved in the given situation (cf. Grey, ‘Disintegration of Property’ [Extract 6.1 above]; also Ackerman, Private Property and the Constitution, pp. 26 et seq.).
For completeness, I should mention a third source of indeterminacy. The objects of property – the things which in lay usage are capable of being owned – differ so radically in legal theory, that it seems unlikely that the same concept of ownership could be applied to them all, even within a single legal system. In England, the ownership of a Porsche is quite a different thing from the ownership of a piece of agricultural land. There are different liberties, duties, and liabilities in the two cases. Private property in these comparatively concrete objects is a different matter again from the ownership of intangible things like ideas, copyrights, corporate stock, reputations, and so on. Once again, the common word ‘ownership’ – ‘X owns the car’, ‘Y owns the land’, ‘Z owns the copyright’ – may be unhelpful and misleading, for it cannot convey any common content for these quite different bundles of legal relations. There is also a similar, though perhaps less spectacular, variation in ownership with different types of owner: the ownership of a given resource by a natural person may be a different matter from its ownership by a corporation and different again from its being the property of the Crown. Variations in ‘subject’ as well as variations in ‘object’ can make a difference to the nature of the relation.
2 . C O N C E P T U A L D EF I N I T I O N
We owe to H. L. A. Hart the point that, in jurisprudence, as in all philosophy, it is a mistake to think that particulars can be classified under general terms only on the basis