Property. Robert Lamb A.

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СКАЧАТЬ then it implies a correlative duty in others to respect – and forbear from interference with – my ownership of it. Put crudely, my property right means that, under most circumstances, you are obliged to keep your hands off my stuff and that the relevant legal authority, if required, can enforce this obligation. Not all rights are claims in this sense. It would be unusual to interpret the right to free speech, for example, as a claim that generates a corresponding duty for others. Such a right does not conventionally imply any corresponding obligation that prevents any person from interfering with its exercise, perhaps by talking over you, or otherwise distracting your audience as you address them. Rights to both engage in and disrupt free speech would seem to co-exist coherently, without duties of non-interference appearing on the scene. It arguably makes more sense to construe free speech as what Hohfeld terms a privilege (or liberty) right, which correlates not to obligations but merely to the privileges held by others. When a person has a privilege to undertake an action, what this means is that they are under no duty to refrain from it: privileges are essentially (negative) freedoms to undertake actions without fear of penalty, but they do not entail protective duties imposed on others to enable those actions.

While it might seem obviously true that property rights are claim rights with implied duties of non-interference held by others, thinking of ownership as a bundle of discrete legal relations complicates this view. My ownership of a teapot may customarily involve my right to exclusive use of it, but it may also include more than this, or it might come with certain conditions or limitations attached. In addition to my right to use, my ownership will likely also include any number of what Hohfeld refers to as powers. In the Hohfeldian framework, a power means the ability to transform legal relationships. My ownership right may incorporate, for example, the power of transmissibility, wherein I (as owner) can decide to give you my teapot – and the bundle of entitlements that come with it – through an exchange or, after I die, as a bequest.

      In an influential essay on the meaning of property, A. M. Honoré lists eleven ‘standard ingredients of ownership’, and thus identifies some of the conceptual sticks that we might expect to find in our bundle of rights. According to him:

      Ownership comprises the right to possess, the right to use, the right to manage, the right to the income of the thing, the right to the capital, the right to security, the rights or incidents of transmissibility and absence of term, the prohibition of harmful use, liability to execution, and the incident of residuarity. (Honoré 1993: 370)

One of Honoré’s key observations is that it is not necessary for all of these legal relations to be present for a status of ownership to obtain. Having a property right can mean different things in different contexts – we should not expect all bundles to look alike in terms of the particular sticks they contain. An implication of this observation is that several of the listed relations are sufficient conditions for the existence of ownership. We can, Honoré thinks, make sense of a person owning a plot of land without her having any corresponding power to bequeath it to whomever she pleases. His list of possible relations of ownership suggests some flexibility in its understanding and does much to help illustrate the bundle theory of property. The upshot of the bundle thesis is to shift our focus to the discrete sticks within it and expose each to its own analysis. What we might think of as ownership becomes reducible to its elemental parts, which may themselves have different moral, political, or legal justifications. A focus on the bundle of rights involved in a particular set of legal relations reveals the contingency of their relationship to each other: a person’s right to occupy a plot of land has no necessary connection with any coincident right to transfer it. Whether these individual relations happen to co-exist on a specific occasion arguably tells us nothing about any discernible idea of property as a unified whole. We can easily envisage situations of ownership existing with bundles of fewer or different entitlements.

      An entailment of the bundle thesis – and perhaps one of the motivations driving its advocacy – is that the very notion of property as a singular object of study is a product of mistaken, mystified thought. Reference to an overarching concept of ownership would seem to posit an illusory unity to what is not actually one, but numerous legal relationships. We cannot consider such relationships as constituting any kind of singular entity without incurring important misunderstandings of their natures, justifications, and implications. On the bundle account, it makes no sense to analyse ownership as an institution and we should attend instead to specific practices like the right to use or the power to transfer. The concept of property thus vanishes out of sight, with the notion of an owner a misleading oversimplification, perhaps even a category error, with no possible basis in reality.⁴ It emerges as a fiction, a weirdly inaccurate kind of shorthand device that encourages the reification of a popular idea that blinds us to a proper understanding of social and legal phenomena.

The bundle theory of property might appear irresistible. It does always seem possible, after all, to separate the idea of property out into distinct legal relations, such that our everyday notion of ownership slips away. The view that exclusive use is capable of serving as the conceptual core of property is obviously impossible to square with the compelling nature of the bundle thesis of property, which implies that giving a central place to use (or any other imagined essence) is a somewhat arbitrary stipulation that will not do the work required of it. In spite of the dominance of the bundle approach – that pushes us to avoid talk of the concept of ownership altogether – I think that it does make sense to continue to invoke property as a legitimate and fruitful focus for our theoretical attention. An historical approach to political ideas allows us to sidestep debates about the meaning of property, or indeed of any other contested political concept. We can avoid the culs-de-sac of a conceptual essentialism on the one hand, and a denial of meaning on the other, by thinking of property as a cluster of contingently related ideas that comprises an historical tradition of thought. On this understanding, the following chapters are not about property in the sense of a singular concept that stands outside, or stretches across, time, but are rather concerned with rival conceptions of property that together form an intellectual tradition, and include the various and discrete relationships highlighted by the bundle theory.

      In this book, I highlight important parts of the tradition of thinking and arguing about property. I examine and assess conceptions and normative contestations of property advanced by different individuals, who are often in direct conversation with each other. We will consider each of these theories on their own terms, insofar as the discussion will not assume an established definition of property to compare against their individual understandings. Such an author-centred analysis avoids cementing intellectual traditions into rigid ideologies. Although I will regularly invoke political or theoretical traditions – libertarianism, utilitarianism, anarchism, and so on – I use these labels loosely; as I will make clear, Nozick’s theory does not exhaust the libertarian theory of property and Bentham’s does not define the utilitarian alternative. No individual theory of property is reducible to the intellectual tradition of which it is part or the political ideology it is supposed to represent.⁵

Structure of the book

In this chapter, I have raised the thorny issue of defining property as a key concept in political theory. I discussed two contrasting ways of thinking about property: the view that it has an essential conceptual core and the view that it is a misleading notion analysable only when broken down into discrete and specific legal relations. My suggestion is that despite the appeal of the bundle theory, property remains a comprehensive and very powerful point of navigation through a set of ideas, comprising a discernible lineage of political argument. Indeed, as we will see below, various political writers – across philosophical traditions – have sought to define, theorise, and contest the idea of property, even where they disagree about its precise nature.

      The structure of the rest of the book is as follows. In the first chapter, I consider why we might think that private property stands in need of a compelling justification. To explain the urgency of this undertaking – beyond the aforementioned habit of political philosophers surveying the world and asking why it is the way it is – I introduce some of СКАЧАТЬ