Module 1- Theories Of Property Rights Flashcards
What does the first occupancy theory entail?
It says the first person to take occupancy or possession of something, owns it. If you for instance, catch a free birth, you own it. Eg- in Wild West, people never believed that the land was owned by anyone, and therefore acquired ownership of the land by putting a peg in the ground. Problem is that it only explains how property rights started, but doesn’t justify it.
What are the five main theories of property rights?
1) The first occupancy theory;
2) The labour-desert theory;
3) The utilitarian theory;
4) The liberty theory;
5) the personhood theory.
What does the labour theory entail?
This is where property is seen as something that is appropriated through labour. This idea stems from Locke, where in his Second Treatise of Government (section 32) he said “As much land as a man tills, plants, cultivates, plants, improves, and can use the product of,, so much is his property. He by his labour does, as it were, inclose from the common.” The idea here is that when one puts one’s “own efforts” into something, it should be yours.
Why is the labour theory problematic?
How can the farmer that employs people to toil the land for him, then be the “owner”? “Own effort” in today’s terms is more bought with own money, rather than making something from scratch, or clearing out land in order to live there.
What does the utilitarian theory entail?
Marx’s theory, or analysis of how things work. In his analysis, a boss can make a profit because a worker is always paid less than the value of the labour that he puts in the boss’s property. This means that if the value of the commodity (eg a business) is R10 000 pm, and the labour pays the workers R7 000, then the profit for the boss is R3 000. Note that in this instance, the labour of the workers doesn’t make them owners of the property they work on. Instead the capitalist class has full ownership, without doing the labour. In this sense labour has been used as a tool to exploit the working class, and the only thing that’s changed over the years is the structures that helped this exploitation along. In Marx’s view this capitalist society would eventually come to an end, and then a society based on communism would arise. In such a society everyone would be provided with what they need to lead a fully realized life. This surplus produced by labour (“profit”) would be distributed amongst society instead of going to the capitalist boss.
What does the linty theory entail?
This is Rawls theory of Justice, where he tries to solve the problem of distributive justice, ie how to achieve a socially just distribution of goods in a society. Rawls relies heavily on the principle of distributive justice.
How does the theory of distributive justice work?
Well, according to Rawls the “original position” (ie the position without any laws) is hypothetically the situation where future members of a society meet to agree upon the general political principles to govern their society. There is a “veil of ignorance” over people, where no one knows what their position in society will be, which ensures that no-one can unfairly privilege themselves. They only have general information about society, and will make choose political principles on the basis of self-interest. But, there are also two principles of justice.
What are the two principles of justice?
- The first one is that “[e]ach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others”, therefore, that all will be equally free. BUT,
- The second principle of justice demands that inequalities will be allowed, but only insofar they benefit those that are worst-off.
These two principles would be chosen in the Original Position.
What does the personhood theory entail?
The fifth theory is Ubuntu, the idea that “I am because of who we all are”. This is an unexplored theory, but one that has been mentioned in Constitutional Court cases, especially on eviction.
What is an example of a Constitutional case in which the theory of personhood/Ubuntu has been mentioned?
In PE Municipality v Various Occupiers Sachs J said that “PIE (The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998) expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern…The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern”.
