How to Think About Property

The definition, allocation and protection of property rights comprise one of the most important sets of issues that any society has to resolve. Its problems are also among the most complex and elusive. Nietzsche was right when he suggested that it is hard to define concepts that have a history. Private property in land, after all, goes back at least ten millennia, and private ownership of chattels (movable objects of property like tools or clothes) was present even earlier.

The nature of these properties is itself the subject of much controversy and a great deal of philosophical debate. Property arguably consists of two things: (1) the legal entitlement to use, manage and transfer a resource; (2) the resources themselves. Property-holders are owed various legal privileges, including the right to exclude others from the resource and to take advantage of it for their own benefit, but also the rights to a share of the profit generated by the management or sale of the resource. This dual characterization makes it difficult to conceive of an integrated property concept that clearly delineates the relevant boundaries.

There are, however, several strategies that have been devised to try to tame this conceptual maze. The first – and most popular – is to adopt a view of property that is more modest in its ambitions. This approach is based on the assumption that actual property entitlements in law and custom are highly complicated, so it is perhaps naive to attempt to delineate a strict set of necessary-and-sufficient conditions for what constitutes property.

A more modest strategy is to focus attention on a single dimension of property. Some theorists, such as J. W. Harris, argue that the essence of property lies in a combination of a set of trespassory rules – familiar from the Exclusion Theory described above – and what he calls an ownership spectrum. The spectrum ranges from mere property – the personal use privileges that are fundamental to property, but without the right to exclude – through to full alienation and its derivatives such as powers of management, waiver and abandonment.

Other theorists have sought to clarify this issue by pointing out that the distinction between different types of property is not as sharp as it might seem. For example, it is common for law and custom to allow some powers of transfer but prohibit others (Ellickson 1993). This suggests that the spectrum concept can be refined by focusing on powers that fall at different points on the continuum between first-order Hohfeldian incidents and second-order Hohfeldian jural relations.

This approach may also have practical implications. For instance, it has been argued that it is impractical to grant immunity from expropriation as a necessary condition of property, because this would mean that government taxation – which in market economies is the main source of funds for state welfare, education and healthcare – would necessarily impinge on property. This difficulty has prompted some to propose that immunity from expropriation should be granted only so long as the property-holder does not exploit the resource for the purpose of generating market income (Christman 1991). This strategy does not, however, solve all of the conceptual issues raised above.