Author : Miss Ankita Srivastava
CHANGING CONCEPT OF PROPERTY
This paper attempts to understand the concept of 'property’ and changing concept of property through the philosophical justifications.
INTRODUCTION
The sense of having and the desire to acquire property exclusively continues to dominate many modern cultures. Monopolization of the world’s resources and the desire to own and control is the backbone of the current social and economic ideology. Property is social dynamic; mutable, mercurial and value laden, it forms the primal core of most social activity in the modern world.
Private property has become important dominant form of property relationship in the modern capitalist world where it promotes liberalists, laissez-faire society whereby individual have the rights to accumulate property and wealth for their exclusive means.
WHERE DO PROPERTY RIGHTS COME FROM?
Property rights come from culture and community. A person living totally apart from others, on a remote island, does not need to worry about property rights. When people come together, however, the need for specific arrangements about property ownership becomes apparent. This group or community then defines and enforces rules of access to the benefits that come from owning land or other property.
WHO REALLY OWNS MY PROPERTY?
“This land is mine, mine to use and enjoy, mine to treat as I wish,” is a common sentiment among many owners concerning their rights to land. This is called the "human territorial imperative." Various actions by governments and courts in recent years suggest that private owners’ property rights are shared with the public and that these rights are limited and can change over time. We are all part of a society that defines our rights and has the power to redefine them over time.
WHAT ARE PROPERTY RIGHTS?
• Property rights establish relationships among participants in any social and economic system. "Property" is actually the stream of benefits from a particular resource. The "right" to that stream of benefits is an expression of the relative power of the bearer.
Ownership of a property right commands certain responses from other people that are enforced by the government and culture.
• Property rights are a function of what others are willing to acknowledge. A property owner's actions are limited by the expectations and rights of other people, as formally sanctioned and sustained in law. The boundary between an obligation and a right varies. Patterns of rights and obligations reflect prevailing judgments about fairness, based on people's values.
• Property rights can be likened to a bundle of sticks, with each stick representing a right, or a stream of benefits .The bundle expands as sticks are added and it contracts as they are taken away. Important sticks, for example, may be the right to sell, to mortgage, to subdivide, to lease, and to grant easements. Government has the overall responsibility to protect public health and safety, and to promote general welfare through selective exercise of discretion that sustains quality of life. In addition to the formal rights of government, communities can use other powers to influence private property owners. These other powers include public spending, public ownership power, and public opinion.
From a historical point of view, it appears that the rights we hold in property spring from society. Individuals may believe that their rights are God-given or endowed by natural law, but in practice, the nature of one's rights depends upon the interpretations accepted by the society in which we live. Rights are real only when the sovereign power or government, which acts as the agent of society, recognizes them and is willing to defend and enforce them.
WHY ARE PROPERTY RIGHTS IMPORTANT?
Property rights are culturally defined and enforced and because different groups gain and lose power, no one can be certain how the current scope go to broaden public powers over private property. The interests of different groups vary greatly. Those seeing private ownership as an opportunity for making money and acquiring wealth have obvious reasons for trying to stop or reverse the trend toward more public power. Others, who view land as a scarce and fragile resource, the use of which is closely intertwined with community concerns, argue for even more public supervision.
Mostly attitudes lie between these two points.
With the prospect of stronger demands and pressures for public programs to direct land use, individual owners may very well fear that attitude changes will strip them of certain rights. A growing sentiment for wider acceptance of a public trust view of rights calls for recognition that the rights enjoyed by owners of private property are balanced by their responsibilities. It is to society's advantage that owners use land for productive purposes.
Owners have the responsibility to use land, or other streams of benefits, in ways that do not cause injury or loss of benefits to others or work against the basic interests of others in the community.
History shows that property rights have evolved over time. Our recognition of property rights has not been linear, but schizophrenic and dynamic in nature.
On one hand, we firmly believe that people should be able to do what they want with the property they own. The desire to maintain strong property rights protection is based not only on utilitarian grounds, but also on fairness grounds. On the other hand, we hold an equally strong conviction that there is a public interest in how property is used, and at some point, the public's interest outweighs the individual's rights.
PHILOSOPHICAL SYSTEMS FOR JUSTIFYING PROPERTY RIGHTS
There are various theories of property for justifying its existence and its changing realm. The Roman Philosophers believed that in pre –legal state the things were in abundance. Individuals acquired control over these things for their survival. Thus the Romans divided things into two - Things in Patrimony (things capable of being taken in private ownership) and things out of Patrimony (things which cannot be owned privately).
Theories propounded by Grotius and Pufendrof seem to be the earliest in Natural Law Theories, according to Grotius, the property was originally ‘res nulliuis’ but the man in society came to a division of things by agreement. However Pufendrof differs with Grotius slightly and holds that the things were “negative community” i.e. originally things were “res communes”. No one owed them. This is called negative community to distinguish it from affirmative ownership by co-owners.
John Locke’s chapter on property from the 2nd Treatise on Government put forwards argument each establish a different foundation for making normative judgments about property. The first claim is that property rights are natural rights. Locke was working in the natural law tradition. He thought that in some sense these rights were woven into the fabric of the universe. Second, property rights are essential to liberty. Third, property rights promote efficiency, in exactly the way that most economists understand efficiency. And finally, he stresses that property rights are limited by equality, so that one would be limited in the acquisition and the extension of property rights by a principle of equality. According to Locke, property was originally owned in common by all men, however, men had a natural rights to appropriate this common property for their own private use where they themselves had laboured to create it .Locke conceptualized what became known as the “social contract” where individuals agreed to hand over particular powers to the government to control in exchange for a guarantee for protection of fundamental natural rights of life, liberty and property. The key to social contract arguments is that people with somewhat different philosophical starting points will agree on rules for the organization of society. Locke’s view on property rights can be woven together fairly easily.
Utilitarians see all rights, including property rights, as arbitrary social conventions, or legal rules, that are validated in terms of their effects or consequences on individual health and welfare. David Hume was utilitarianism; he rejected the natural rights approach, believing that reason alone was incapable of determining social and political obligations. Private Property existed because it had become a social convention that individuals obeyed, it being in their mutual interest and the general public utility to do so. Hume believed that common good led an individual to concur with the system of rules implementing private property but that, ultimately, all property was subordinate to the authority of civil laws. Utilitarians would be interested in whether the institutionalization of a given property right promotes the most efficient distribution of costs and benefits for society as a whole. Thus, the efficiency criterion becomes the key to a utilitarian approach to property.
Metaphysical, positive and historical theories along with pscylogical theory may be considered together .This is known as “Will Theory”. E. Kant chief profounder said basic concept of property is “an expression of will over a thing against other.” Under Kant’s theory, there must be union of wills or recognition of general will which can convert the individual’s possession into aright.
In a word, the mode in which anything external may be held as one’s own in the state of nature, is just physical possession with a presumption of right thus far in its favour, that by union of the Wills of all in a public legislature, it will be made juridical”
Like Kant, Hegel, felt that a person had right to direct will upon any object in order to make that object his own. It was individual will, which, according to Hegel, gave an object a true meaning and existence. He noted, ‘A person has right to direct his will upon any object as his real and positive end. The object thus becomes his. As it has no end in itself receives its meaning and soul from his will.’
Libertarian philosophy, another fairly systematic approach to the question of justifying property rights, asserts that the non-interference right is mandatory and absolute. As such, it is appropriate to use state power to enforce non-interference rights. Other moral principles must be left to the discretion of individuals. A libertarian would thus be most impressed by the liberty argument, that property rights are crucial to protecting individual liberties.
The Federalist Perspective embodied in Federalist thinkers such as James Madison, who believed that individual property rights were of crucial importance and deserved stringent protection. "Government," Madison said, “is instituted no less for the protection of property than of individuals”. Federalists understood that other rights were of no use unless property was safe. Arthur Lee, of Virginia, said that "the right of property is the guardian of every other right, and to deprive people of it is in fact to deprive them of their liberty." For example, the right of free speech would be worthless if the government could threaten your property in retaliation.
The Republican Perspective as in colonial republicans, such as Thomas Jefferson and Benjamin Franklin, placed more emphasis on the limitations of individual property rights. Of course, they believed strongly in property—Jefferson maintained that the key to democracy was a nation populated by small landowners secure in their possessions. They also believed that property itself is a creature of society, and is therefore subject to limitations imposed for the public good. Jefferson, for example, had been to France and had seen rich landowners’ fields lying idle while poor people starved. Jefferson declared that in that case, private property rights had been taken too far: Property is "the common stock of all men to live on and use,'' he concluded. Franklin had a similar opinion: "Private property is a creature of society and is subject to the calls of that society where its necessity shall require it." They recognized that property exists in the first place only because we agree as a society to respect a person's claims. Therefore, to protect the broader community, society has the right to limit the use of property.
Egalitarian view stresses the need to provide every person in society with equal opportunities. This is an area of some of the hottest action in philosophical work on property. Followers of John Rawls have the view that his difference principle provides a new approach to property rights: “Systems of property rights are justified only when they tend to improve the lot and promote the interests of the worst off group in society.” According to him for individuals to choose a society which would best enable them to select and properly enjoy their natural rights .if individuals wished to maximize their right to life, liberty and property they needed to enter a society, the rules of which were consistent with ‘the most extensive, total system of equal basic liberties compatible with a similar system of liberty for all.’
Charles Reich’s article “The New Property” one of the most cited law review article ever written. The article attempts to say that Government has turned out to be the major source of wealth. Government has taken up different functions such as money, benefits, services, contract, franchises and licenses. It offers a perspective of the transformation of society as it bears on the economic basic of individualism. Besides largess of the government there are new forms of wealth, franchises in private business equities in corporations, and the rights to receive privately furnished utilities and services, status in private organizations. Reich used a republican vision to affect the sharp shift in the law. There are different linkage that is drawn between law and the larger realm of political discourse. Reich piece suggest different vision of property.
Title of paper by Prof. Hardin, called “Tragedy of the Commons” which meant to demonstrate the necessity of individualistic property rights, although it actually conveys the more limited idea that scarce resources needs regulation, rather unrestricted freedom. Regulation over scarce resource, as the product of the relationship between individual, power and legal restrictions, give arise to different form of property –largee of the state. The way to avoid the tragedy is to develop techniques that rather than allowing free exploitation of scarce resources are able to determined a “price” that corresponds with social cost.
In recent times, economic arguments have emerged in defence of private property structures, although such theories do not focus upon the humanist concerns about the inequality and oppression that the expansion of private property has engendered.It has been suggested that communal property encourages waste and an ineffective use of resources. Where the property is privately owned these resources may be utilized more efficiently. Individuals are not competing against each other for use, and may therefore spend more time and effort planning the most resources effective activities.These arguments are particularly potent in a society increasingly concerned with resource efficiency and environmental protection.
According to Lawerance Becker, “The main lines of arguments for general justifications of property have long since been laid down: the vulnerable areas in those justifications have been identified: alternatives to private ownership have been proposed; weakness in those proposals has been explored, it seems unlikely that any new discussion could make significant contribution to theory.
Therefore as per Beckner, it is a never-ending debate. in order to review he articulates that philosophers make a broad distinction between moral theories (such as utilitarianism) that validate a rights claim in terms of the consequences that follow from its general observance, and moral theories (such as those of Locke or Kant) that validate rights on the ground of protecting liberty or autonomy. Property rights are, in either case, a subclass of non-interference rights dealing specifically with control and exchange of alienable goods. Economic approaches to property rights are easily accommodated within utilitarian moral theory, and an economic analysis of efficiency can be readily applied within a utilitarian argument on the validity of specific property rights. Libertarian, natural law, and egalitarian approaches use a different logic for validating property claims, though they might converge with utilitarian arguments to support a given configuration of property rights in specific cases. Whenever these multiple rationales for assigning and validating property rights converge, the particular configuration of property rights will be regarded as ethically well supported. Whenever they diverge, property claims are likely to be contested on ethical grounds.
CONCLUSION
Professor Philbrick: "One was looking to individualism to save society. The other was looking to society to save the individual."
The same sort of debate, between individualism and society, goes on today over topics like welfare, social security, gun control, and affirmative action. Viewpoints stressing individual rights can be traced back to the Federalists, while those stressing society's interests are rooted in the colonial Republicans. But as the nature of the economy changed, property rights changed with it. Jobs and benefits, or stock ownership, became just as important as land. The law changed to give employees some protection and to recognize intangible property as well as real property. Property rights should really be understood as a balance between these competing interests.
As the information age has evolved, we have seen additional changes in property. Trademarks and copyrights may be far more valuable than land. The framers of the Constitution could not have foreseen property rights in Internet web sites, body parts, and fertilized human eggs, and yet we must adapt their ideas to fit these new realities.
History teaches that what we mean by "property" and "property rights" has never been set in stone. Instead, our recognition of these interests is constantly evolving—what may have been allowed yesterday may be unacceptable to society today. Particularly in the environmental area, the absolutist view of property rights seems misplaced—what we see as the proper use of land (and therefore the "right" of the property owner) is bound to reflect the constantly changing needs of our society.
