Week 1- Why recognize property? What is property? Flashcards
What is the purpose of the five theories of property?
To seek to justify the recognition of property rights.
What are the five theories of property?
- Protect First Possession.
- Encourage Labor.
- Maximize Societal Happiness
- Ensure Democracy
- Facilitate Personal Development
Describe the “Protect First Possession” Theory.
-“First come, first serve.”
- In a setting with many resources and few people, like early United States, first-in-time approach accurately describes how unowned things came to be owned.
- In 19th century, property rights in water, oil and gas, wild animals, and other natural resources were often allocated to the first possessor.
- First-in-time concepts has less relevance today because almost every tangible thing is already owned by someone.
- First-in-time system implicity allocated via parking spaces, seats in movie theaters, and places in a long line.
- Most scholars conclude that first possession approach does not adequately justify property as a general matter. It describes how property rights arose, but not why it makes sense for society to recognize those rights.
Describe the “Encourage Labor” Theory.
-John Locke reasoned that each person was entitled to the property produced through his own labor.
-Assuming an unlimited supply of natural resources, Locke argued that when a person “mixed” his own labor (which he owned) with natural resources (which were unowned), he acquired property rights in the mixture.
-Made sense in colonial America where plenty of property was not yet owned, similar to first possession.
-Labor theory may apply in the realm of newly created property, such as copyrights and patents.
Describe the “Maximize Societal Happiness Theory.
-Jeremy Bentham developed traditional utilitarian theory, where property is recognized in order to maximize the overall happiness of society.
-We distribute and define property rights in a manner that best promotes the welfare of all citizens- not simply those who own property.
-Classic utilitarian theory would say that C owns a nut tree not solely in order to benefit C, but because recognizing C’s title will promote the welfare of all members of society. For example, if C’s ownership is protected, C is able to use the nut tree in a manner that best serves the common good- perhaps harvesting the wild nuts for sale in the local market, using lumber from the tree to make valuable products, or preserving the tree to protect environmental values. Ownership gives C the security that he needs to use the tree effectively.
Describe the “Ensure Democracy” or “Civil Republican” Theory
- Civic republican theory posits that property facilitates democracy.
- During the 1700s, elections to the British House of Commons were still affected by so-called “rotten boroughs”- electoral districts that contained only a handful of voters. Typically, these voters were tenants on farm land owned by a local patron who could control their votes, leading to sham elections. In contrast, Thomas Jefferson and others envisioned the new United States as a nation of free yeoman farmers who owned their own lands and could exercise the independent political judgement that was vital for true democracy. At one time, only property owners were eligible to vote in most states.
- Under this approach, we would recognize D;s ownership of a nut tree and the surrounding land because this provides D with the economic security necessary to make political decisions that serve the common good.
- In a state in which private property does not exist, citizens are dependent on the good will of government officials, almosts on a daily basis… they come to the state as supplicants or beggars. Any challenges to the state may be stifled or driven underground by virtue of the fact that serious challenges could result in the withdrawal of the goods that give people basic security. A right to private property, free from government interference, is in this sense a necessary basis for democracy.
- Civic republican theory is less prominent today than it was in the 1700s, partly because most citizens obtain economic security from wages earned at a job, not from farming their own land. Still, may suggest that giving each person a “stake in society” through property ownership will provide political and social benefits to all.
Describe the “Facilitate Personal Development” or “Personhood” Theory.
- Based on the work of German theorist Georg Hegel, personhood theory argues that property is necessary for an individual’s personal development.
- Under this view, each person has a close emotional connection to certain tangible things, which virtually become part of one’s self- such as family photos, love letters, or perhaps a home.
- Suppose that E’s family has owned nut tree for four generations; as a child, E literally grew up under the tree. Thus, E venerates the tree as almost an extension of herself. Under personhood theory, E’s rights in the tree should merit special protection.
- The premise underlying the personhood perspective is that to achieve proper self development- to be a person- an individual needs some control over resources in the external environment. The necessary assurances of control take the form of property rights.
- Since a person can have an emotional connection to a thing that cannot be repaired with the thing’s mere replacement with another thing, we can argue that by virtue of the connection the person should be accorded broad liberty with respect to control over that thing.
- All other things being equal, some people believe that a right to personhood property should be given priority over a conflicting claim by the owner of non-personhood property. I.e. tenant’s right to rented apartment as personhood property greater than landlord’s ownership of home.
When does a wild animal become property?
Merely chasing an animal is not sufficient to render that animal one’s property. Instead, the animal must be wounded in addition to the pursuit or taken in order to become the pursuers property.
Does one own their name and likeness?
Yes, when one’s image is appropriated for profit, a California Right of Publicity claim may exist. Appropriation may be met by means other than use of name or likeness.
Describe what Property is.
*Property consists of rights among people concerning things.
*Property is described as a bundle of rights, or, informally, as a bundle of sticks.
*The most important sticks in this bundle are:
- The right to transfer
- The right to exclude
- The right to use
- The right to destroy
What are the four key implications of the rights approach?
*Property rights are defined by government.
*Property rights are not absolute.
*Property rights can be divided.
*Property rights evolve as law changes.
Describe the Right to Transfer (Alienation)
- As a general rule, any owner may freely transfer or alienate any of her property to anyone.
- However, the scope of this right is sometimes limited for reasons of public policy.- limits who and what
- Who: An insane person, for example, cannot transfer or obtain property.
- More commonly, the law regulates what property can be transferred.
- Some types of property cannot be transferred at all (such as rights to military pensions), while others can be given away but not sold (such as corneas).
- Further, the law usually regulates how property may be transferred in order to avoid fraud, uncertainty, or other problems.
- Benefits of right to transfer
- Vital for efficiency in our market economy because it helps to ensure that property is devoted to its most valuable use.
- Since the law favors free alienation of property as a general matter, the question becomes: under what specific circumstances should alienation be restricted?
Must a Native-American sale of land be honored?
No, the government is the only power able to decide who gets what land.
Does one own their removed cells or body parts used for research they did not consent to?
No, one does not own their removed cells or body parts used for research without their consent.
Describe the Right to Exclude
- Each owner has a broad right to exclude any other person from his property.
- The Supreme Court has characterized the right to exclude “as one of the most essential sticks” in the bundle.
- If you hold title to a tract of land you may- as a general matter- prevent anyone else from entering upon it.
- A landowner’s right to exclude is implemented through the tort doctrine of trespass.
- An entry made under a privilege is not a trespass.
- Privileges: consent and necessity.
