The concept of property is difficult to precisely define, it means different things to different people, and it has changed a great deal over numerous centuries. The concept of property is constantly evolving, both through the common law, and to a larger extent, particularly over the past 80 years through legislation. The most noteworthy Act of Parliament in this area is the Law of Property Act 1925, which with its accompanying legislation of 1925 and subsequent enactment’s have radically transformed the law of property.
To approach the issue of whether or not it is pointless to define the ‘concept’ of property, a historical and theoretical overview is necessary, in order to give the subject a sense of context. There are many theories that address the issue of property, and all have varying degrees of success in their attempts to define it. As discussed by Panesar,1 most people would define property, if asked, as something that belongs to them, such as a watch, house or a car. However, due to historical peculiarities the law actually sees property as the rights a subject (or ‘owner’) has over an object.
Hohfield believes “… that in substance property comprises a bundle of rights, obligations and relations between subjects with respect to the ownership of a thing”2 These rights give the owner the ability to prevent others interfering with his or here property, yet it can also confer obligations on the owner. These could include the individual concerned being compelled to have the necessary licence, insurance and tax in relation to a car, and obeying road traffic laws whilst on the road. The owner can also transfer that ownership at any time, if they wish to do so.
A matter that must be made clear before the issue of property can be thoroughly considered, is the distinction between personal rights and property rights. Personal rights are known as rights ‘in personam’ and regards the obligations between specific individuals, such as those created by a contract. Rights ‘in rem’ concern property rights and are usually exclusionary by nature, an example of which would be the right of an owner to prevent people walking on their land without permission, which would result in the tort of trespass.
Hohfields analysis gives a good indication of what the law perceives as private property. The distinction between different types of property is identified simply by some as a division between private and non-private property. However, the three widely recognised categories of property are those of private, common and state property. Private property is more complicated than at first appears from the previous brief summary of Hohfields ideas. It is indeed not so straightforward once things such as leases, mortgages and easements are considered.
Each of these factors limit what could otherwise be seen as complete ownership. A bank or building society will have a proprietary interest in the property upon which it has loaned money. An owner of land may have limited his complete ownership by granting a lease upon it to a tenant who will consequentially gain certain rights in regard to the property. Even the holder of an easement which can be something as simple as having the right to walk over a neighbours land, has an albeit restricted, proprietary interest in the land.
It is such factors that affect absolute ownership and make it very difficult to give a concise definition of the concept of private property. Common property is a less complex area, and includes areas of common land, for example grasslands were the public are at liberty to graze cattle, and parks. The main identifying characteristic of common property is that all individuals have the right to use and enjoy the property, but no one is able to exclude another person from utilising the property. State property is also easier to define than private property.
It includes rights to property that the state uses in its ‘private’ capacity such as state factories, and also rights to property that the state re-distributes in its ‘public’ capacity, such as through education or the National Health Service. As mentioned, there are numerous theories that have been put forward that attempt to answer what property is and what purpose it serves. They all address in some way the historical context of property and where the concept actually originates form, and most are preoccupied with the most complex type of property, namely private property.
The occupation theory, in its most basic terms says that private property originated through individuals taking land and claiming it as their own, often as a reward of labour in the land, with the express or implied agreement of others in the community. The occupation theory therefore clearly identifies how private property came to be dominant. The case which Panesar3 discusses in relation to this theory is Pierson v Post4. The majority in this case held that a hunted wild animal did not become a person’s property until it was physically captured and under the control of the individual concerned.
This theory may help contextually with the concept of property, yet it does little to aid understanding of private property in the modern day. Another prominent theory is one created by philosophers during the 17th and 18th centuries, particularly by John Locke, and is known as the labour theory. Reducing the theory again to its basic ideas, Locke and his supporters claimed that the right to own and dispose of property was an individuals right. Their claim is that private property existed before the state did, and therefore the state should not have a hand in governing it, it should be governed by natural laws instead.
Locke specifically believed that every man has the right to his own labour, and mixing this labour with property which is originally held in common, creates private property, as the labourer becomes the owner of the resource in question. This theory also has its problems. A major one lies in its fundamental claim that property should be governed by natural law, as it is not clear what natural law consists of. Some consider natural law as a religious type of law, or that it is drawn from nature and reason. The difficulty lies in determining the concrete decisions that such law would have in practise.
A further problem is highlighted by Nozick and put forward by Panesar: – “If I make the very first effort to extract the oil from the bottom of the seabed, am I entitled to the worlds supply of oil? “5 This shows the difficulty posed by the theory in the sense of how much of a reward or benefit can the labourer expect for how much work. This theory does not give a concise answer to what property actually is, but starts from a premise assuming that individuals already hold a pre-conceived idea of what property is. The utilitarian theory of private property is in fairly stark contrast to the labour theory.
Its basic principles consider private property as something that was not present before the state came into existence, and that with no law there was no such thing as private property. Utilitarians believe that the law must protect private property to preserve the happiness of property owners. The reasoning behind this is that if owners feel they could potentially lose their property, they will become increasingly unhappy, and this may lead to the hiding or preservation of the property, which decreases enjoyment of it.
This theory, whilst attempting to cover the issue of why it is important to have private property, it makes no mention of its origins, or define precisely what it considers to be property. On one level it presents a more modern approach than the other two theories considered as it directly tackles the role of the state, and in this sense it helps to outline what some individuals see as important parts of the concept of private property in today’s capitalist world. Approximately over the previous two hundred years both the objects and subjects of property have grown, with new categories emerging in both areas.
This is as a result social and economic changes and technological advances. As recently as the 1880’s married women could not legally own property. During the times that slavery was acceptable in the western world, the people that were slaves were objects and did not have the right to be subjects. In the modern economic sphere, corporations, which potentially can be very large, can be the legal owners of vast amounts of property. Objects are also changing with more and more intangible things becoming property.
Shares are a good example of this, as are the group of objects known as intellectual property, which includes such things as patents and copyrights. These emerging and new areas of property are an indication of how difficult it is to make concise definition of the concept of property, especially one that would withstand subsequent changes in the area of property. There are many diverse aspects and theories regarding property and its functions, and each brings its own dimension to the subject.
No single theory offers an adequate explanation of the concept of property, but all offer assistance in providing varying perspectives on the issue in question. With the various views that are held and the changing nature of the concept of property, it is clear why there can be no satisfactory definition of it. However, the attempts that have been made, although it may be possible to term them elusive, are certainly not pointless, particularly from the position of a student of the subject. Considered together, the issues and points that are raised provide a good overview and help to put into perspective the concept of property.