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The Idea of Property continue…
By arlene | May 8, 2008
The identification of the owners or right-holders facilitates additional terminology. If the owners are identifiable entities distinguishable from some larger group, there is private property. The most common example is individual private property, where an individual person is the owner — in severalty, as lawyers say. Other sorts of private property exist when the owners or right-holders are persons considered together, such as partnerships and cotenancies, or are artificial entities that represent the financial interests of persons, such as corporations.’ Contrasted with private property are various sorts of public property. Here the owners are the state, city, community, or tribe. Some forms of ownership involve a mixture of private and public property rights.
Understanding property along the lines suggested by Hohfeld and Honoré has the salient advantage of cross- cultural application — that is, the idea of property, though perhaps not a moral and political theory of property (§ 1.2), applies to all or almost all societies. If, instead, the idea of property were cast in terms of particular economic or cultural data, it would not illuminate very well property in societies different from those which gave rise to the original data and idea. Granted, if property is conceived along the lines advocated here, variation can still occur in who may own property, which incidents comprise ownership or other property interests, and which things can be owned. But the HohfeldHonore analysis starts from the central truth that property involves relations among persons and with respect to things. It enables one to clarify these relations in widely different social settings. Though the analysis is especially well suited to complicated legal systems in developed societies, it also assists social scientists in analyzing much simpler situations.
A well-known article by the anthropologist Hoebel brings out the point.’ Hoebel argues, first, that Hohfeld’s vocabulary sharpens perception of undeveloped legal and social systems. Hoebel’s illustration is Yurok Indian society in northern California prior to the impact of Western civilization. The Yurok had no formal government but did have an informal arrangement for enforcing legal standards by damages. Yurok law permitted something resembling ownership of fishing sites but with qualifications that Hohfeld’s conceptions illuminate. The title holder of a fishing site has an exclusive liberty to fish there. He also has a power to grant a temporary liberty to another person to fish in that spot. Should he exercise the power, however, he comes under a duty to prevent his guest from being injured. Thus, if his guest were to slip and hurt herself while fishing, she would have a claim-right against her host for damages.
Second, Hoebel suggests that Hohfeld’s vocabulary can avoid some unnecessary wrangles among anthropologists stemming from the use of overly broad or inapplicable labels. An example is the controversy over the type of ownership of canoes in Melanesia. Some anthropologists held that canoes were “private property.” Others maintained that they involved “communal ownership.” Hohfeld’s conceptions, Hoebel points out, enable observers to describe accurately what is going on without getting embroiled in a larger dispute over private property and communism. The observers might find that the “owner” of a canoe has a claim-right that others not damage it, a liberty superior to that of others to use it, a power to sell or give it away, and an immunity from being forced to sell. They might also find that the “owner” is under a duty to ferry certain travelers, and that failure to discharge the duty would give a traveler a claim-right for damages. Such findings involve a mixture of “private” and “communal” elements. They would not be accurately described by prefixing either label, without qualification, to canoe ownership in that society.
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