The Nature Of Property
What is property? One will search in vain for its essence. Modern ideas of property are the product of millennia of change, their boundaries being stretched and cut to fit a long series of ideologies and social forms. One is left not with one definition of the term but rather with a variety of usages, some overlapping and some aloof. The sadistic boss uses the language of property when he says to the employee, "I own you," as does the plaintive lover who cries, "You belong to me."
The variety of meanings of the term may be demonstrated by considering cases in which it is not certain whether something is property or not. Is one's passport one's property? What of one's vote, one's entitlement to social security payments, or one's lungs? Do people own their appearance, or their reputation? People will disagree on these cases; most will say that there is a "sense in which" each is property. This is the point that is being emphasized here. There are many "senses" of property, each of them attracting us with its own gravitational pull.
The American legal theorist Thomas Grey has alleged that the dispersal of meanings has gone so far that it should be said that the concept of property has disintegrated completely. Not only are there a range of concepts in ordinary speech, but specialists such as lawyers and economists have defined their own discontinuous usages. Grey's thesis goes too far. There is a core of meaning to the idea of property, and at this core is found a prototype against which all other instances are measured.
The vital first insight into the nature of property distinguishes property from mere physical possession. Being in contact with an object is neither necessary nor sufficient for ownership. As the English jurist Jeremy Bentham (1748–1832) observed: "A piece of stuff which is actually in the Indies may belong to me while the dress I wear may not" (p. 133). The ownership relation is not a physical relation between a person and the property, but a moral or legal relation among persons with respect to the property. Property is to possession as marriage is to mating.
As Bentham asserted, the relation of ownership is not material but metaphysical. What then is that relation? In all instances of ownership there are three variables: some owner has certain rights over the property that is owned.
Any number of entities can fill in the third, property, variable. Houses, steel factories, palaces, oil deposits, and interplanetary-exploration vehicles can all be property, as can taxi medallions, dividends, parts of the broadcast spectrum, works of fiction, and even forms of life themselves. The things that are property have almost infinite variety.
The types of owners of property sort themselves into familiar categories. The public owns public property, the government owns government property, and private persons—either individuals or "artificial" persons such as corporations—own private property. There are also sometimes special rules for certain kinds of owners: for example, couples share rights over joint property, and in some countries church property is exempt from tax. Since the past five hundred years have seen the torturous rise of private property to predominance, private property will be the particular focus here.
It is the rights that define the relation between owner and owned that distinguish the different senses of "property" from each other. The most basic rights that define most kinds of ownership are the rights of exclusive use. An owner has the right to use the property, and others may not use that property without the owner's permission. Beyond these rights of exclusive use, there are other rights that define various senses of "property" related either to the owner's control or to the property's value. An owner may have the right to transfer the property (if so, the property is alienable). An owner may have the right to sell the property (if so, the property is a commodity). An owner may have the right to receive a stream of income from the property (if so, the property is an asset).
These categories nest or overlap. Not everything that an owner may exclusively use may be transferred: one may not legally transfer one's prescription drugs to anyone else. Not everything that can be transferred may be sold: for example, United States law allows the transfer, but not the sale, of eagle feathers. Nor is everything with economic value something that the owner has the right to sell. Trust funds and tenured professorships are assets, but they are assets that cannot be sold.
The core meaning of property is that of a commodity: that is, of an object of salable rights of exclusive use. The commodity is the prototype of property, and sets the paradigm against which we measure less central senses of ownership. There is a "sense in which" one's lungs are one's property, since one has exclusive rights to use them. Yet there is also a sense in which they are not, since one cannot legally sell them to others. Similarly with one's reputation. One's reputation can be a financial asset, but there is little sense in saying that one has rights to exclusive use of it. Reputation can be considered a type of property, but its distance from the prototype makes it property of a particularly attenuated sort. The commodity is at the core of current ideas about property, and, as will be seen, debates over what should be put into this crucial category have been some of the most heated.
There are also secondary rights and liabilities that accompany ownership in most of its senses. An owner has a right to compensation should another damage his property, and an owner is liable should her property cause harm to someone else. These secondary aspects of ownership tend to be taken for granted, yet they can be of the first importance for innovative approaches to property-related problems such as environmental protection.