9.1.3 |
PROPERTY AS REFERRING TO A THING,
RELATION OR RIGHT |
In those interpretations of property which vary from a
right to a particular material thing to a right to a kind of
society —see
8.3.3— property is explicitly conceived
of as a right.
It has been suggested with regard to the question whether property is a
right or a thing that the idea of property as a thing would be on its way
out and would be superseded by, or rather return to, the notion of
property as a right to a revenue or income.
The idea that property is something material instead of a right to
a thing or income is a sort of ideological derailment then.
The fading away of the historical distinction between the right and the
thing itself would be the product of a market economy with practically
unlimited rights in land and the rise of capital as a medium of exchange.
Altho this account may
have its merits, it certainly seems farfetched when we look at the
property homonymy (property as a thing, as a relation and as a
right) as just one instance of many similar homonymies in the language
here employed.
In whatever way one looks at it, property must somehow
concern a situation in which there is some person or group of
persons (the owner) who own something (the corporeal and/or
incorporeal thing owned). This means that there is at least a
relation between the owner and the thing owned in such a
situation. Now, possession is clearly a term which refers,
first of all, to a relation of possessing, just as creation
refers, first of all, to an (act and) relation of creating
something, and just as improvement refers, first of all, to a
relation (the act or process) of improving something. But the
thing which is at the passive end of a relation (the terminus)
may get the name of the relation itself. Thus creation not
only denotes the relation (or act) of creating but also the
thing created; and improvement not only denotes the relation
(or act or process) of improving but also something that is
improved or improves in this manner. Even the word relation
itself does not only designate 'relations' in the ontological
sense but also a person to whom someone is related in a special
way, for example, by consanguinity, affinity or a share in
entitlement. This metonymical use of the words possession,
creation, improvement and relation is not different
from that of neutrality for something that has the attribute of
being neutral, or of beauty for something that, or someone
who, is beautiful.
Terminologically one would expect property to refer to an attribute
rather than to a relation or the terminus of such a relation.
(The word property is in one of its meanings even a
synonym of quality or attribute, or —as it is used in
this Model—
primary attribute).
This is misleading, however, as the relational nature is or may be
implicit in the root proper.
When not referring to the one-place relation or attribute itself,
property is, then, the thing which is proper, not in some absolute
sense, but proper to a certain person or group of persons.
And being proper to a person or group means being peculiar to
it, being suitable or appropriate for it or belonging to
it.
So, no ideology is needed to explain why a thing owned may also be called
"someone's property".
It is common parlance; and it is correct so long as other metonymical
figures of speech are allowed as well, such as neutrality for a
primary attribute, improvement for a
primary thing and beauty for a
person or
'er body.
What remains odd is only that property could designate a relation,
but this can be explained in terms of the relational character of
proper itself, and in terms of the close connection between
property and possession which both must describe a
situation in which an owner owns a thing owned.
Property may be a one- or more-place relation or a primary thing, but
where does the right come in?
To begin with, the nonempirical element is introduced with concepts such
as proper, appropriate and suitable.
The expression to own, too, is impregnated with all sorts of
nonempirical conceptions.
Even when owning is construed as an entirely factual notion, it is
not factual in the sense that having as an element and
possessing are.
On our view of the law and legal notions as being
factual-modal, owning is at least of a
factual-modal character, requiring the existence of some kind of
institution.
It is here that legal, that is, factual-modal rights start playing a role,
and it is also in these spheres that we are dealing with
(sub)cultural norms and factual morality.
Admittedly, having a right has different meanings, dependent
on the type of right, but when the right is discretionary
or active, it means being in a state in which it is neither the
case that one should do nor that one should not do a particular
(kind of) act. Having a right to a particular thing
would, then, mean being in a state in which it is neither the case
that one should do nor that one should not do a particular
(kind of) act with respect to a particular thing. As a rule the
acts concerned are described as the acts of using the thing in
question and of 'excluding' other (living) persons from (using)
the thing in question. The meaning of property to or in a
certain thing is, then, the right to use this thing, and to
exclude (other people) from using this thing . And this means
(if, and insofar as, the right is discretionary) that it is
neither the case that one should use or exclude nor that one
should not use this particular thing or exclude others from
using it. In other words: one may use it or exclude others from
using it.
In these formulations should may be interpreted in the factual-modal
sense of (sub)cultural norms and the law, or in a
truly
normative sense.
Hence, on this interpretation, owning a particular thing
boils down to being in a state in which it is neither the case that one
should use this thing or exclude others from using it nor that one should
not use this thing or exclude others from using it.
It is in this sense that owning something and having property
coincide with having a right to something.
This makes it conceptually possible to conceive
of 'property' itself as a right in or to something.
Nevertheless, on our ontological construction the only real entities
concerned remain person(s), other primary things and the
nonontological relations between them in the factual perspective of
what is (or is not), the modal perspective of what can be (or
cannot be) and the normative perspective of what should be (or
should not be).
(Note that altho the right analyzed is active, it can still be either
extrinsic or
intrinsic.)
It has been objected that the conception of property as a right to exclude
other people (and, on a large scale, other peoples) is not the sole aspect
of property, but that property is also the claim right not to be excluded,
that is, to be included.
The former conception would, then, be that of property as a so-called
'exclusive right', the latter that of property as a so-called 'inclusive
right'.
From the anti-exclusivist standpoint this suggestion that property is,
first and foremost, an inclusive right sounds very sympathetic imndeed, yet
the distinction is superfluous and misleading, because if someone has
property as an 'inclusive right',
'e is the, or rather an, owner
of this property or the thing in which 'e has the property.
If others have property as an 'exclusive right' in the same thing, this can
never entail the right to exclude co-owners who, too, have the right
to use it.
Talking about property as an 'inclusive right' is therefore nothing else
than emphasizing the use right, especially with respect to communal
property or co-ownership.
The distinction between an 'exclusive' and an 'inclusive
right' is misleading because the discretionary right is a right
both to exclude and to include nonowners. This is one and the
same right and part of
a right-duty constellation in
which those who do not have the particular right bear the duty not to
interfere, in this case with the right-holder's right to the use
of the thing 'e owns (or co-owns). If, and insofar as, property
is a discretionary right, the so-called 'exclusive right' is
therefore nothing else than the property right of excluding and
including nonowners, and the so-called 'inclusive right' is
nothing else than the property right to the use and nonuse of
the thing in question, or a similar property right, such as that to
the income earned. Saying that property is 'a right to a kind of
society' is saying that every owner is a co-owner of that
society and its resources.
This implies that no-one owns anything — anything that is not owned,
and that may not be used, by every other member of that society as well.
In other words: it precludes any possibility of individual and private
ownership and any collective ownership below the level of the society
itself.
If this is not true, then property does not mean a right to a
kind of society.
And, of course, it does not, regardless of whether one rejects private or
nongovernmental property or not.
It should be clear now, why the property relationship is not
dyadic as it encompasses both a right to exclude or include
other people and a right to use and not to use certain things.
What is involved is always the owner (one or more people), a set
of one or more primary things, and a second party of one or more
other people. (Thus property is not a right to exclude, or to
include, other animal beings which are not people.) Different
theorists have emphasized different aspects of this (at least)
triadic relationship. Some of them have declared that property
is basically a relation between human beings and things, others
that its most important aspect is the relation between people or
members of a social group. The relation between the persons and
the things owned is also depicted as a relation to nature which
provides the natural conditions of production. It may be
declared in this context that the human relations with nature
and the social relations among human beings are 'prerequisite
to, as well as result of, the production process'.
Nature is usually considered common property if, and insofar as,
it has not been appropriated.
But —as has been argued before— this common may have
quite different meanings.
Firstly, it may mean belonging to no-one and open for appropriation
by anyone. Secondly, it may mean belonging to everyone.
This latter definition may be interpreted as waiting to be
individuated to realize each person's claim or as being
available so as to preserve oneself. (Expressive of a mixed
conception is the dictum the fruits belong to all and the earth
to no-one.) Common property has also been defined as a
property from whose use or benefit no natural individual ought
to be excluded. Also in this case everyone is theoretically
co-owner, altho in practise the owner may be the state with
limited ownership rights. From the possible limitation of
ownership rights it is evident that there is much more to a
property right than the total use of the thing in question and
the total exclusion of nonowners.
Use is a very general term. One of the earlier theorists on
property distinguished 'integral property', which is the right to
put a thing to any use, from 'partial property', which is a right
to a certain (kind of) use. In later times more than ten
'elements' of full, legal ownership were listed. But, first
of all, these 'elements' include aspects which are not typical
of property rights in particular, such as the 'right to
security' (here defined as 'immunity from expropriation') and
'absence of term'. Other 'elements' concern the rights not of
the owner but of nonowners, such as the right not to be harmed
(by someone else's use of property) and questions of rectification
(and retribution). The right 'to use' does solely include
'personal enjoyment and use' on this view, and is distinguished
from the right 'to decide how and by whom a thing shall be used'
and the right 'to consume, waste, modify or destroy it'. The
right to exclude others from the benefits of a thing belongs to
an 'element' which is called "the right to possess". ('Possession'
is, then, exclusive physical control, literally or metaphorically.)
Furthermore, legal systems may explicitly recognize
the power to alienate the thing owned (before a person's death)
and the power to give by will (to devise or to bequeath).
Special attention is to be paid to the fact that full, legal
ownership encompasses the right 'to the income', that is, 'the
benefits derived from foregoing personal use of a thing and
allowing others to use it'. It is definitely erroneous to
conclude from this one facet of property that it would be
nothing else than a right to a revenue, income or capital.
People may not be interested in the use and enjoyment of
something they legally own at the moment, and merely care about
the income it yields, yet income and capital themselves
are abstract notions. When people are interested in the income
rather than in the use or enjoyment of the thing owned itself,
it probably will be because they can sooner or later buy or rent
other, concrete things with such an income; that is, things in
the use or enjoyment of which they, or those to whom they want
to give something, are interested. These 'other concrete things'
the capital of property is good for are often other people, or
their bodies, when they can only be bought or hired or best
attracted by means of money.
