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Popular and Sophisticated Conceptions of Property
By arlene | May 9, 2008
Consider how different the world would be if it contained no property. It is logically possible that it could contain all the artifacts that it now does. It could have houses and automobiles, factories and tools. Yet if it did, no one would stand in relation to those artifacts as people do to property. Persons might possess artifacts in the sense of having physical contact with or control over them. But they would have no right to exclude others and no normative power to transfer artifacts to others. Persons would also lack any such right or normative power over things that are not artifacts. They would have no property in land or plants or minerals. Furthermore, no other entity would stand in relation to things as people now do to property. States, cities, tribes, corporations, and partnerships would have no property.
If one turns from what is logically possible to what is causally and socially plausible, the no-property world seems even more different from the world as it is. Perhaps people would make simple artifacts such as knives and huts. But it seems unlikely that they would create such things as automobiles and factories, for these things require great capital investment and cooperative activity. People would probably not make the necessary sacrifices unless they could be confident of substantial control over the use and disposition of these things — which would require property rights. Nor would people be likely to engage in some kinds of farming, mining, and animal husbandry unless they had property rights in the fruits of their activities. Again, business corporations and partnerships are economic arrangements, and without property their existence is improbable.
These contrasts between the no-property world and the actual world suggest two different ways of understanding property. One is the popular conception of property. It views property as things. For the most part, property is tangible things — land, houses, automobiles, tools, factories. But it also includes intangible things — copyrights, patents, and trademarks. Many of these things would not exist in a no-property world. The other way of understanding property is the sophisticated conception. One might almost call it the legal conception, for it is very common among lawyers. It understands property as relations. More precisely, property consists in certain relations, usually legal relations, among persons or other entities with respect to things. A metaphorical way of stating the sophisticated conception is that property is a bundle of “sticks.” It is often added that one should be clear about which “stick” in the bundle one is talking about. One should distinguish the normative power to exclude, for example, from the normative power to transfer. These relations, or “sticks,” would not exist in a no-property world.
It is sometimes asserted that only the sophisticated conception of property is useful in any serious analysis. The assertion is overstated, for § 4.4 shows that it is sometimes justifiable and important to think of property as things. Yet this claim does not make the sophisticated conception unimportant. The next two sections elaborate that conception. Though they are not very original, they are useful in clarifying one’s ideas at the outset. Readers with little interest in conceptual analysis will find that most is fully intelligible without elaborate conceptual preparation; they may wish to skim this now and return to it later as the need arises.
Earlier thinkers confronting the question, What is property?, answer it in different ways. Some hold that property is things; others maintain that it is relations between persons and things, or relations among persons with respect to things; yet others claim that it is a basis of expectations with respect to things; and a few believe that “property” has so many fragmented uses that any overarching normative theory of property is impossible. The position defended here differs from each of these but also retains some elements from all of them except the last. It is perfectly sound to think of property both as things (the popular conception) and as relations among persons or other entities with respect to things (the sophisticated conception) — provided that the context makes clear which conception is meant. Moreover, one can think of property in this way and preserve a role for expectations. Finally, understanding property in this complex way enables one to rebut the claim that “property” has “disintegrated” and so to keep alive the possibility of a general moral, political, and legal theory of property.
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