What Is “Property”?

• DOI: http://doi.org/10.1111/j.1744-1714.2004.04104002.x
• Date: 01 June 2004
• Author: O. Lee Reed
• Published date: 01 June 2004

What Is ‘‘Property’’?

O. Lee Reed

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I. INTRODUCTION

The word ‘‘property’’ communicates various meanings. A common dic-

tionary entry def‌ines property as a thing or collection of things that one

owns,

1

whereas a frequently repeated legal definition describes property as

a bundle of sticklike rights.

2

Neither definition, however, is especially illuminating. The former

fails because its most relevant term is not ‘‘thing(s)’’ (property not being a

synonym for things) but ‘‘owns,’’ and what it means to own something is

not explained. The latter meaning falls short as it does not indicate what

part of a bundle of separable rights, which includes, for instance, rights of

possession, control, use, and exchange, is the necessary minimum to con-

stitute property, implying that the word may have no common convention

and may thus be meaningless.

Further confusion arises in the opposing and wildly varied connota-

tions suggested by property. It connotes theft,

3

murder,

4

and slavery

5

to

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American Business Law Journal

Volume 41, Issue 4, 459–501, Summer 2004

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Professor of Legal Studies, Terry College of Business, University of Georgia.

1

See WEBSTER’STHIRD NEW INTERNATIONAL DICTIONARY 1818 (Philip Babcock Gove ed. 1986)

(def‌ining propertypertinently as ‘‘something that is or may be owned or possessed: WEALTH,

GOODS; specif: a piece of real estate’’); see also infra notes 30–33 and accompanying text.

2

See infra notes 36–42 and accompanying text.

3

Most associate the accusation that property is ‘‘theft’’ with Proudhon. See PIERRE-JOSEPH

PROUDHON,WHAT ISPROPERTY? 14 (Donald R. Kelley & Bonnie G. Smith trans., 1993) (1840).

Those holding Proudhon’s view may have believed that there was a time in nature when

everyone had a common use of all physical resources, and when the state privatized resources

for an individual through propertyFthus depriving everyone else of the common use of

resourcesFa type of theft resulted.

4

See KENNETH PATCHEN,THE JOURNAL OF ALBION MOONLIGHT 25 (1941) (‘‘It has been said that

property is theft: I say that property is murder.’’).

5

One of the more unfortunate associations of the word ‘‘property’’ is with slavery, as though

the legal concept of property somehow facilitates or promotes human slavery. Although

some but security and liberty to others.

6

Anthropologists have identif‌ied

property with social relationships of power,

7

but philosophers have called it

people owned slaves, slavery is actually antithetical to the ownership of one’s rights and fac-

ultiesFessentially ownership of one’s selfFthat James Madison termed the ‘‘larger and juster

meaning’’ of property. See infra note 57 and accompanying text. Slavery usually constitutes a

type of robbery because it deprives individuals by force of the facultative resources they have

in themselves and abolishes the legal right they have to exclude others from involuntarily

employing these resources. Going back to the Greeks, various discussions of political society

have recognized and accepted the existence of slavery, but they have done so only by the

assumption that slaves are materially different from citizensFoften that they are less than

humanFand do not enjoy the right to exclude others from themselves. RICHARD SCHLATTER,

PRIVATE PROPERTY,THEHISTORY OF AN IDEA 19 (1951) (‘‘[T]hey [Plato and Aristotle] went on to

say that some men were natural slavesFbeings in human form but without reason, more like

animals than menFwho could with justice be used as the instruments of another’s good. The

proper economic function of the rulers is to consume property and that of the slave to pro-

duce it.’’). In short, because slaves lack property in themselves, they can be objects of property

to others. In U.S. history, abolitionists as well as supporters of slavery argued their points of

view from a property perspective. Id. at 203 (quoting the Anti-Slavery Convention of 1883 that

‘‘every man has a right to his own body’’ and ‘‘to the products of his own labour’’). But see id.

(maintaining that ‘‘[t]he most effective Southern argument was that interference with slavery

was interference with property’’).

6

See JOHN PHILLIP REID,CONSTITUTIONALHISTORY OF THEAMERICAN REVOLUTION:THEAUTHORITY

OF RIGHTS 31–32 (1986) (‘‘The seventeenth-century English constitutional maxim making lib-

erty depend on security in private rights to property may be the most familiar legal doctrine

identif‌ied by historians of that period.’’); id. at 33 (‘‘There may have been no eighteenth-

century educated American who did not associate defense of liberty with defense of proper-

ty.’’). Briefly, in the classical republican justif‌ication of property, the ownership of resources,

specifically land, freed one (gave one liberty) from dependency on the state and secured one

against state power.In still another view, ref‌lected in the analysis of this essayand suggested by

Madison, the security of property and liberty are operationally synonymous,both referencing

a constitutional and legal right to exclude others, including the state, from important re-

sources such as one’s land, widgets, or faculties, practices, expressions, and privacy. See infra

note 57 and accompanying text.

7

See C. M. Hann, Introduction: The Embeddedness of Property, in PROPERTY RELATIONS,RENEWING

THE ANTHROPOLOGICAL TRADITION 3 (C. M. Hann ed., 1998) (asserting that property relations

comprehend ‘‘issues of political power and control over the distribution of ‘things’ in soci-

ety’’). Others, including legal scholars, also assert the property-as-power view:

If . . . somebody else wants to use the food, the house, the land,or the plow which the law

calls mine, he has to get my consent. To the extent that these things are necessary to the

life of my neighbor,the law thus confers on me a power, limited but real, to make him do

what I want.

Morris R. Cohen, Property and Sovereignty,13C

ORNELL L.Q. 8, 12 (1927); see also Kenneth R.

Minogue, The Concept of Property and Its Contemporary Significance,in NOMOS XXII: PROPERTY 3,

5 ( J. Roland Pennock & John W. Chapman eds., 1980) (‘‘The ownership of Wildfell Hall

460 Vol. 41 / American Business Law Journal

a ‘‘myth.’’

8

It either exploits the poor,

9

or protects them most of all.

10

Some view property as a matter of natural right

11

while others see it as an

artif‌icial creation of the state.

12

Its institution may lead to environmental

[Blackacre], it often seems, is a form of power that allows us to exploit other people. . . .’’);

Francis S. Philbrick, Changing Conceptions of Property in Law,86U.P

A.L.REV. 691, 697 (1938)

(distinguishing between ‘‘property for use’’ such as ‘‘personal consumption’’ and ‘‘property

for power’’ that ‘‘involves control over the means of production’’); cf. NEDELSKY,infra note 8.

The view of property as social relations of power is decidedly Marxian.

8

JENNIFER NEDELSKY,PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 260

(1990) (‘‘[T]he myth of property is pernicious because it hides a structure of power and in-

sulates it from democratic debate.’’); Hann, supra note 7, at 2 (‘‘Toa large extent, it [‘the liberal

paradigm of property’] is a myth.’’); see generally JOHN CHRISTMAN,THE MYTH OFPROPERTY,

TOWARD ANEGALITARIANTHEORY OF OWNERSHIP (1994). To treat property as a ‘‘myth,’’ however,

depends upon the view disputed in this article that property is a f‌inite systemof known objects

which persons own. The demythologizers then point out that the objects which are property

in fact have changed some in the last several hundred years; thus, property is not a system of

known objects but is a myth of power relations. This article argues that instead of being a

number of f‌inite objects, property is essentially a legal right to exclude others from a relatively

stable but slowly evolving system of both facultative and nonfacultative objects. A stable right

to exclude, not the objects of exclusion, is the hallmark of property.

9

See PROUDHON,supra note 3, at 197 (‘‘Property is the exploitation of the weak by the strong.’’).

10

See TOM BETHELL,THE NOBLEST TRIUMPH:PROPERTY AND PROSPERITY THROUGH THE AGES 202

(1998) (‘‘[I]f property laws are applied equally,they will work above all to the advantage of the

poor.’’). The gist of this assertion is that the wealthy in society can often protect their re-

sources, through force if necessary, whereas the poor need state assistance through well-en-

forced property law to enable them to exclude others. Cf. LAWRENCE LESSIG,CODE AND OTHER

LAWS OF CYBERSPACE 131 (1999) (‘‘[Property] is a system for ordering economic relations that

greatly benef‌its all members of society.’’); CASS R. SUNSTEIN,FREE MARKETS AND SOCIAL JUSTICE

210 (1997) (‘‘[P]roperty rights help create wealth, and greater wealth will often benef‌it the

most vulnerable as well. Time and again it has been shown that economic growth can often do

more than welfare and employment programs to benef‌it the disadvantaged.’’).

11

Natural law views property as a right arising out of the logic of nature. It precedes civil

society and is independent of it, an inviolable f‌irst principle that the state cannot legitimately

alienate. See generally DAVID HUME,ATREATISE OF HUMAN NATURE (L. A. Selby-Bigge & P. H.

Nidditch eds., 1978) (1740); see JOHN LOCKE,SECOND TREATISE OF GOVERNMENT 18–30 (C. B.

Macpherson ed., 1980) (1690). The civil law tradition also emphasized property as a natural

right. See,e.g., SCHLATTER,supra note 5, at 233 (quoting Portalis, one of the most significant

architects of the Code of Napoleon, that ‘‘the principle of the [property] right is in us; it is not

the result of a human convention or a positive law; it is in the very constitution of our being’’).

12

That the state, not nature, creates and institutes the right of property derives from utili-

tarianism, which regards Locke’s view otherwise as ‘‘nonsense upon stilts.’’ See Jeremy Bent-

ham, Anarchical Fallacies,inNONSENSE UPON STILTS 46, 53 ( Jeremy Waldron ed., 1987) (1791).

Blackstone wrote of property variously as both a natural right and a conventional civil right,

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