Property

Within the law, property is a general legal category for rights of ownership in land, money, tangible objects, intangible objects, etc.

Property is defined as the right to use, enjoy or possess a determinant thing, and the right to exclude others from same.

Within the conceptual framework provided by law this control is assured by the power of the law, or by power exercised under the law, and not by any separate power. However, philosophically at least, it is possible to think of property concepts outside a legal framework - though, as in the Middle Ages, a legal framework for property might well emerge.

Table of contents

1 General characteristics
2 Property and the "noble savage"
3 Types of property
4 What can be property?
5 Who can be an owner?
6 Quotations
7 See also

7.1 Ideologies in support of property and ownership
7.2 Ideologies opposed to property as an institution
7.3 Other articles

General characteristics

Modern property rights conceive of ownership and possession as belonging to legal individuals, even if the legal individual is not a real person. Thus, corporations, governments and other collective forms of ownership are framed in terms of individual ownership. The opposite of property is "the public domain" or, "the commons". Property rights are found in the oldest laws written down, and equate the expectation of use or profit to some payment from the very beginning. Modern property rights can be said to begin with the transition from ownership by entities as being the primary form of property right, to the theory that property rights are to promote the general good, and specifically encourage economic development and utilization of property.

Property is usually thought of in terms of a bundle of rights. Traditionally, they are the right to:

control over use
the benefits of property (e.g. mining and farm royalties, peacable posession, etc.),
transfer or sell,
exclude others, e.g. non-owners.

Legal systems have evolved to cover the transactions and disputes which arise over the possession, use, transfer and disposal of property, most particularly involving contracts. Positive law to defines such rights, and a judiciary is used to ajudicate and to enforce.

In his classic text, "The Common Law", Oliver Wendel Holmes describes property as having two fundamental aspects. The first is possession, which can be defined as control over a resource based on the practical inability of another to contradict the ends of the possessor. The second is title, which is the expectation that others will recognize rights to control resource, even when it is not in possession. He elaborates the differences between these two concepts, and proposes a history of how they came to be attached to individuals, as opposed to families or entities such as the church.

According to Adam Smith, the expectation of profit from "improving ones stock of capital" rests on private property rights, and it is central capitalism that property rights encourage the property holders to develop the property, generate wealth, and efficiently allocate resources based on the operation of the market. From this evolved the modern conception of property as a right which is enforced by positive law, in the expecation that this would produce more wealth and better standards of living.

Socialism's fundamental belief is centered on a critique of this belief, stating, in effect, that the cost of defending property is higher than the returns from private property ownership. This is still a modern theory of property however, in that it argues based on superior utility of result.

Communism argues, that only collective ownership through a polity, though not necessarily a state, will assure the minimization of unequal or unjust outcomes, and that therefore all, or almost all, private property should be abolished.

Not every person, or entity, with an interest in a given piece of property may be able to exercise all of those rights. For example, as a lessee of a particular piece of property, you may not sell the property, because the tennant is only in possession, and does not have title to transfer. Similarly, while you are a lessee the owner cannot use his or her right to exclude to keep you from the property. (Or, if he or she does you may perhaps be entitled to stop paying rent or perhaps sue to regain access.)

Further, property may be held in a number of forms, e.g. joint ownership, community property, sole ownership, lease, etc. These different types of ownership may complicate an owner's ability to exercise his or her rights unilaterally. For example if two people own a single piece of land as joint tenants, then depending on the law in the jurisdiction, each may have limited recourse for the actions of the other. For example, one of the owners might sell his or her interest in the property to a stranger that the other owner does not particularly like.

Property and the "noble savage"

The neutrality of this section is disputed. See the Talk page.

It is commonly but incorrectly believed that some cultures, for example native Americans had no concept of property. This mistaken belief comes from the fact that some commodities which are considered economically important in one society are not valuable in others. Thus ownership of land is important for agricultural societies but not in hunter-gatherer societies.

However, in practically all societies, one can find the concept of property applied to some object whose ownership is economically valuable. For example, African hunter-gatherer societies do not have ownership of land, but ownership of water holes is important.

Types of property

Most legal systems distinguish between different types of property, especially between land and all other forms of property. They also often distinguish between tangible and intangible property as well.

In common law, property is divided into:

real property - interests in land
personal property - interests in anything other than land

Personal property in turn is divided into tangible property (such as cars, clothing, animals) and intangible or abstract property (stocks, bonds, bank deposits, derivatives, options, futures, patents, copyrights, trademarks, etc.), which includes intellectual property (though some disagree with the use of the term intellectual property).

What can be property?

Not everything can be property; only those objects or ideas which others can be economically, physically, or otherwise excluded from can be considered property. Thus the air and the water in the sea belong to no one (presumably, although there are many instances of this in our contemporary society; see airspace, no-fly zone, or United Nations Convention on the Law of the Sea), though once stored in bottles or tanks, they can be considered property.

Traditionally many things existed that did not legally have an owner, such as commons (land belonging to nobody in particular, but over which commoners had rights). But over centuries and millennia law in all societies has tended to develop towards reducing the number of things not having clear owners. This enables better protection of scarce resources, due to the tragedy of the commons. But there are many things today which still do not have owners: ideas, seawater, the seafloor (though due to the United Nations Convention on the Law of the Sea, some of it can now be considered in some ways property), celestial bodies, land in Antarctica.

The human body is, in modern societies, considered something which cannot be the property of anyone but the person whose body it is. This is in contradistinction to the old practice in many societies of chattel slavery, which is almost universally considered unjust and illegal today.

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 religious sites owned by the religious body that runs them.

Who can be an owner?

Property requires a class distinction between owners (possessing title and the all rights of enjoyment) and non-owners (excluded from use). Generally, it is thought that humans can be owners, and non-humans can not. (There are exceptions to this. For example, in Athens, Georgia there is a tree that owns itself.)

Some societies have restrictions against ownership of property. In some, only adult men may own property. However, in other cultures (such as the Haudenosaunee), property is matrilinear and passed on from mother to daughter. In early America, slaves were prohibited from owning property.

Another modern concept is that certain legal fictions, such as corporations and trusts, can engage in contracts and own property.

Quotations

It is a moot question whether the origin of any kind of property is derived from nature at all... It is agreed by those who have seriously considered the subject that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. -- Thomas Jefferson

Property is theft -- Pierre-Joseph Proudhon, What is Property

[T]hough the earth and all inferior creatures be common to all men, yet every man has a "property" in his own "person." This nobody has any right to but himself. The "labour" of his body and the "work" of his hands, we may say, are properly his. -- John Locke