The Property in Law - Essay Example

FOUNDATIONS OF PROPERTY Contemporary academic literature widely recognises property as a an entity, tangible or intangibly, that is owned by an individual or group of individuals, that have right to consume, sell, exchange, tranfer or destroy their property as well as exclude others from performing these acts.1 From the critical perspective, the conception of property has not walys been universal; on the contrary it was a subject of academic and philosophical discourse in the 19th century. Prior to legal scholar Wesley Hohfeld, property has been associated with things. Hohfeld in his in-depth analysis indicated that property cannot be things, like land, manufactures, plants or breweries. Property can only be the rights over things. Hohfeld was the first to make a clear analytical distinction between property as things and property as rights. He and his students turned the legal profession decisively towards the second. Hohfeld fired a barrage of influential arguments that sunk the old property is things conception within the legal profession.2 Hohfeld argued that lawyers had often been misled by the contrast between the rights in rem and rights in personam to think that property rights were actually rights "against things," which is absurd since practically all rights are against people. Hohfeld and his followers objected that regarding property as things leaves intellectual property unaccounted for. They also complained that regarding property as a thing led to a misplaced focus on physical possession of an object instead of on the complexes of rights that form the stuff of modern property law.3 And most importantly, Hohfeldian analysis was thought to give the fatal blow to property is things by proving it incapable of handling divided or multiple ownership. Bruce Ackerman describes the standard "divided control" objection to property is things and the legal orthodoxy that formed around it: "Instead of defining the relationship between a person and 'his' things, property law discusses die relationships that arise between people with respect to things. More precisely, the law of property considers the way rights to things may be parceled out amongst a host of competing resource users."4 This thinking is pivotal for understanding the concept of property and ownership, their essences and characteristics. From the critical perspective, it is widely emphasised in literature that the property as concept can be easily confused with property-regarding actions. For instance, there is an evident the danger of confusing property with possession, which ideas are as different from each other as marriage and mating. Property and possession change can occur at the same time. For instance, there are cases where someone acquires a thing by taking hold of it and where a transfer is affected by something "changing hands," and where a person abandons property by letting it go. Yet changes in possession are neither necessary nor sufficient for changes in ownership, because property and possession have no necessary relation. A thief, for example, has possession but no property. As Bentham puts it, the relation that constitutes property "is not material, it is metaphysical": "a piece of stuff which is actually in the Indies may belong to me while the dress I wear may not. The aliment which is incorporated into my very body may belong to another, to whom I am bound to account for it."5 The property relation is not a physical relation between a person and a thing, but a normative (moral or legal) relationship between persons with respect to things. Property, unlike possession, is a matter of rights. One only loses track of the distinction sometimes because the two concepts frequently go together in everyday life. For instance, property and possession are easily conflated because possession is often conventionally or legally connected with the establishment of property rights. By laws, the first person to possess an unclaimed object usually (but not always) becomes the owner of the object; and a transfer of possession is a common (though not the only) way to signal that ownership is transferred. If property is a matter of rights then property-regarding actions must involve exercises of rights: using one's property involves the exercise of use-rights; transferring one's property involves the exercise of rights of transfer, and so on.6 If one can find a set of rights that is adequate for representing all of the prototypical property-regarding actions, then one will have taken a large step toward understanding how we do what we do with property, and so a step towards discovering the essence of property. The dilemma in understanding property as a concept is complicated with the fact that there are things over which there is entity or group who holds all of the property rights. For instance, a renter may have a right to live in an apartment building but not to sell it, and the landlord may have the right to sell the building but not to enter any of the living areas. Performing typical property-regarding actions like acquisition or transfer involves the exercise of rights. Since different sorts of actions can be performed on or with property, one should expect there to be correspondingly different kinds of property rights. This should all sound familiar to anyone acquainted with modem discussions of property: ownership is said to be "a bundle of rights," or "a cluster-right," or "a complex aggregate of rights."7 Yet these modern discussions rarely if ever go on to describe what rights are in the bundle, cluster, or aggregate. If one is to understand what really goes on in the typical property-regarding actions, one will have to find a set of rights that can account in detail for what individuals do with property. The legal scholar Wesley Hohfeld provided an analytical analysis of different sorts of property rights, which effectively captures the normative dynamics of property and ownership. Hohfeld distinguishes four varieties of rights: claims, privileges, powers, and immunities.8 Each of these types of rights has a role in explaining what individuals do with property. The first kind of right, the claim-right, is needed to explain an owner's right to exclude other people from invading or disturbing his property. In general, to say that individual has a claim or a claim-right against other individual is just to say that the latter has a duty to the former. For every claim held by one person, there is at least one correlative duty in someone else. In the case of property, the duty is not to interfere with the property without the permission of the claim-holder. The claim-right involved in property is of a special kind, in that the bearer of such a claim is owed a duty not just by one person, but by every other person. Every non-owner has a duty to the owner not to use, damage or destroy the property without the owner's permission. This is in contrast to the claim-right that arises from a promise, in which the promisee is owed a duty by only the promisor. For instance, it is your promise to your neighbor that gives him a claim against you to water his garden, but it is his property right in his plants that gives him a claim against everyone that they not trample his plants. The property claim-right is a right "against the world," and this sort of right is sometimes referred to by its Latin name as a right in rem. The right in rem is again contrasted with a right in personam, which is a claim against a single person such as arises from a promise. A right in rem is thus, in a sense, a collection of identical rights in personam - one right against each other person in the world. From the critical perspective, in their original Roman senses, the labels in rem ("against a thing") and in personam ("against a person") are misleading. Practically, all rights, whether rights of property or contract, are of course rights against persons. Property claim-rights are just rights against many persons with respect to things. The Romans had a story about why their usage was correct, but the reasoning sounds pretty tortured to the modem ear.9 Hohfeld made the distinction by contrasting "paucital" rights (in personam) with "multital" rights (in rem). Now the right to exclude others from some property is not the same as the right to use that property. Indeed, it is easy to imagine people having rights to use a piece of property but no rights to exclude each other from it, as is the case with property held in common. The right to use property is in fact not a claim-right at all, because in itself it implies no duties in others. Rather, it is what Hohfeld called a privilege.10 A privilege is simply an absence of duties to other people. Person "A" has no duties to person "B", for instance, with regards to singing Coldplay; "A" may do these things or not, just as he likes. Were "A" to promise "B" to sing, "A" would no longer have a privilege with respect to "B" regarding this act, as "A" would have a duty to "B: to do it (but "A" still might have a privilege with respect to everyone else). Similarly in the field of property: person has the privilege (with respect to everyone) to use his pen as a writing implement, or as a musical instrument, or in any number of other ways. To say he has a privilege simply means that person has no duty to anyone not to do these things. This person may do them or not, just as he please. Of course, he does not have a privilege to do absolutely anything he likes with his property - "It's my property" is no defense for murder - but he does have a broad discretion of what to do with what he has a privilege over. Person has the right to use it, to damage it, or to destroy it within the limits of the personal and property rights of others. Figure 1 demonstrates the two rights of ownership as discussed so far. The rights-holder (owner) is represented at the left of the figure. Government property is owned by the government; public property by the community; and private property is owned by an individual, or jointly by several individuals, or by some legal entity like a private corporation. At the right of the Figure 1 is the object of the property rights - the property itself. One usually thinks of an owner as having rights over a piece of property into the indefinite future; however it is sometimes helpful to think of people having rights over limited time-slices of the thing that is property. The rights in the Figure 1 are adequate for capturing some typical kinds of property-regarding actions. For instance, the privilege would figure in the explanation of people's rights to manipulate, occupy, move through, build on, consume, damage or destroy their property. And the claim is behind one person's refusing another permission to enter, use, damage, or destroy his property, and behind complaints of trespass, burglary and nuisance. However, there are other typical property-regarding acts that cannot bed captured with the Figure 1. For example, how could we represent abandoning - "disowning" - something that one owns Is abandoning a privilege, or a claim It may be seem like a privilege, in that an owner may have no duty not to abandon a thing. Yet abandoning also seems unlike a privilege in that the act by itself changes the normative situation in the world. Before abandoning a piece of property, an owner has a claim-right against others; afterwards, that person has no claim. This is a substantial normative change: the abandonment absolves all non-abandoners of their duties to the abandonee. Abandonment is in this way like original acquisition in reverse. Before original acquisition, an acquirer has no claim-right to exclude others from thing acquired; afterwards his claim over the thing is secure. An act of acquisition thus creates duties toward the acquirer in all non-acquirers. A mere privilege - a lack of duties to others - is not adequate to capture the power to make these kinds of changes in the normative situation of the world; it is not adequate to explain either abandonment or acquisition. What is needed to represent these sorts of actions is a right to change rights, or a "second-order" right. There is a category introduced by Hohfeld, which is a right called a "power."11 An original acquirer, for example, exercises the power to create in himself a claim-right over some unowned object, and thereby to create duties in everyone else. Similarly, one can represent abandonment as the exercise of a power to annul an existing claim-right over an object. Thomson calls the powers involved in acquisition and transfer "large-scale powers," since they are normative abilities to make large-scale alterations in other people's claims and privileges.12 Adding these powers extends initial Figure 1 (see Figure 2). Some attention to the Figure 2 as it stands should reveal that it still cannot be adequate to explain the typical property-regarding actions. For if everyone in a property system just had the powers shown in the figure, why would not one person be able to use his second-order powers to annul someone else's claims over an object and then use his power to acquire this thing himself That is why Hohfeld introduced his final catergory - immunity. As a power is a right to alter rights, so an immunity is protection against having one's own rights-situation altered. Unlike powers - which can range over everyone's claims - immunities range only over a person's own claims and privileges. These immunities come in two sorts. First, each legal person has a permanent immunity against having property claims created in him by others without his consent.13 This immunity protects a person from having unwanted goods foisted upon him. Second, each person has a permanent immunity against other people annulling whatever property-claims and property-privileges he has without his consent.14 This second immunity is what keeps one person from using his second-order powers to annul another person's claims over an object and then acquiring the thing himself. The introduction of immunity category into the concept of property makes it possible to represent acquisition and abandonment as well as most distinctive of property-regarding acts - transfer. For instance, since property cannot be transferred without the permission of the recipient, the first thing that must happen in a transfer is that the recipient relaxes his immunity from having claims created in him. From the critical perspective, once we understand transfer is represented we understand exchange as well, since exchange is just reciprocal transfer. Therefore, it is possible to form a structure of rights capable of explaining basic categories of property-regarding actions: use, destruction, selective exclusion, acquisition, abandonment, transfer, exchange. REFERENCES Ackerman, Bruce. Private Property and the Constitution. New Haven: Yale University Press, 1977. Carter, Alan. The Philosophical Foundations of Property Rights. New York: Harvester Wheatsheaf, 1989. Hohfeld, W.N. Fundamental legal conceptions, as applied in judicial reasoning, Yale University Press, 1966 Gaus, Gerald F. "Property, Rights, and Freedom." Social Philosophy and Policy (1994): 209 40. Macpherson, C.B., ed. Property: Mainstream and Critical Positions. Oxford: Blackwell, 1978. Nicholas, Barry. An Introduction to Roman Law. Oxford: Oxford University Press, 1962. Patterson, L. Ray and Stanley W. Lindberg. The Nature of Copyright: A Law of Users' Rights. Athens: University of Georgia, 1991. Snare, Frank. "The Concept of Property." American Philosophical Quarterly 9 (1972): 200-06. Thomson, Judith Jarvis. The Realm of Rights. Cambridge: Harvard University Press, 1990. FIGURE 1. PRIVILEGE of Using some Person has a Damagin/ Destroying object CLAIM against others' or region of space FIGURE 2. PRIVELEGE of Using POWER of Creating P has Annuling Damagin/ Destroying some object or region of space CLAIM against others' Read More