What is Property ?

24 Sep

One view is that, as the French anarchist Proudhon famously observed, ‘Property is theft.’ Beyond the apparent paradox (how can you have theft without property ?) is presumably the idea that land is the common heritage of at least the human race and perhaps (in a more ‘animal rights’-conscious age) all living creatures.

Somewhere between that and the assumption of an unproblematic right of individual property (20th/21st-century US and UK, at least) must be other possible perspectives.

As Gray & Gray remark (in Elements of Land Law), the old feudal idea of land ‘ownership’ (tenure, really) as a chain of relationships may fit modern environmental and social sensitivities better – but no-0ne calls for the return of that. What else ?

An interesting recent article in the Journal of Islamic Economics Banking & Finance seeks to argue that private ownership of land is unIslamic. The article evidently suffers in translation, but one can readily imagine Jewish or Christian equivalents Рindeed, this writer thinks that they have existed. The thrust of the article appears to be that you can own what you have worked on or improved Рwhich anticipates John Locke by a millennium Рbut the land itself (as distinct from houses and crops Рthere is evidently no doctrine of annexation) is common property.

Another view is explored a little in the Harry Potter books/films, but has received little discussion in the journals – with an honourable exception at 87 (2008) Oregon Law Review 1101 by Gary Pulsinelli (use Hein Online to access), although the present writer respectfully differs somewhat from his understanding of Goblin Law. According to the goblins (Pulsinelli discusses the g/G question in note 3), property can only belong to someone for their lifetime, and after that it reverts to the person who conferred it – perhaps (this writer theorises) as trustee for the social group in which it was produced. Since no-one can need land (or anything else, one supposes) for longer than their lifetime, it might seem odd that we talk of people owning fee simples at all. Of course it simplifies conveyancing to know that you will not be turned out at an uncertain date, when the seller or the seller’s seller (etc) dies – but that assumes conveyancing…

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