Читать книгу Property - Robert Lamb A. - Страница 9

There are many good reasons to study the history of political ideas. Two of them are particularly germane to the discussion of key concepts. On the one hand, the history of ideas impresses the sheer contingency and contestability of our political inheritance upon us. It indicates that others have construed the concepts that define our civic debates as having different meanings and implications in divergent contexts. On the other hand, the history of ideas also reminds of us of the perennial nature of political debate. It reveals that conceptual contestations in alien historical contexts often concern the same ideas that animate our own political discussions. The upshot of these two contrasting but entwined phenomena (the contingent and the perennial) is that they provide the student of the history of ideas with a rich treasure of fascinating arguments – some familiar and some alien to our civic culture – about the concepts that we deploy in our contemporary political conversations.

An historical approach to property also, in my view, allows us to bypass a contemporary philosophical dispute concerning the nature of property as a concept. This dispute turns on whether the concept of property has any essential characteristics. Some theorists argue that there is a stable and definite conceptual core to the idea of property. James Penner, for instance, suggests that the idea of exclusive use provides the ‘formal essence of the right’ to own property. According to this understanding, ‘the right to property is a right to exclude others from things which is grounded by the interest we have in the use of things’ (Penner 1997: 71, emphasis suppressed). As Penner points out, the concepts of exclusion and use often come together through ownership rights: we are accustomed to thinking of private property as implying our legitimate need or desire to use a particular thing and, correspondingly, requiring that we are able to exclude others from doing so. This combination of exclusion and use does not mean that our ownership rights obtain only in our particular occasions of use – our furniture does not cease belonging to us when we are not immediately using it. The idea of exclusive use signals instead the connection between our rightfully owned property and our purposiveness and intentionality. It captures the fact that property is valuable to us because of the role it plays in our lives, as part of our long-term personal projects. On this construal, property confers a series of benefits on its owner through the exercise of certain liberties. She can, without interference, share, transfer, or derive benefit from, the property in question, as well as enter into various forms of contract concerning it.

We can immediately see that this account of the essential meaning of property is quite explicitly at once conceptual and normative: it makes plain that the view advanced about the nature of property (exclusion) derives from its justifiable purpose (the interests served by its use). The important point is, however, that property is understood here as a discernible and unified idea with a definitive conceptual core. This ‘unified thesis’, and the analysis that underpins it, has some clear intuitive purchase – it seems to describe successfully how we might think of property in our everyday lives, when we stop and consider it. It seems easy to get our heads around the notion that the right to a chair is explained via the benefits involved in being able to use it however we please and, furthermore, that the practical manifestation of this benefit is my entitlement to control the exclusion of others from interfering with it. Despite its intuitive pull, however, the view of property as having an essential conceptual core – whether defined by exclusive use or anything else – has fallen into some measure of scholarly disrepute in recent years.

The most influential way of thinking about property in contemporary legal philosophy instead abandons altogether the view of it as a singular concept, and understands it instead to be a ‘bundle’ of discrete and separable legal relations. There have been different ways of conceiving exactly what such a bundle entails, but the basic idea is that we can endeavour to separate the various sticks that comprise it and, in so doing, acquire a better understanding of the nature of the legal and social phenomena at issue. Proponents of the bundle approach claim that it clears away what they regard as a fog of conflation that blinds political and legal discussion of the subject. To appreciate the thinking behind the bundle theory, we need to step back a bit and go over some of the key features of rights themselves. Beyond their expressive, political purposes – which might include the recognition of our dignity or moral standing in a community – rights serve to enable and prohibit our freedoms, making some actions permissible and others impermissible. In the context of property, this function seems straightforward and relates back to our interest in having systematic and permanent protection for specific resources, which become our holdings rather than those of anyone else.

Perhaps even more fundamental to the understanding of rights is their relational nature. Rights delineate realms of permissible action between individuals and therefore make sense only in a social context: we hold rights against others. Property rights govern relations between persons (and corporations) rather than between persons (and corporations) and specific things. In a world with only one person (but lots of things) the idea of property rights would presumably be superfluous because the relevant relational context would not exist: there would be no other individual against whom to hold rights. This aspect of rights can help us be wary of some of the confusing language that we are prone to use when talking about ownership. We might talk of the right I have over my magnifying glass, but it is a mistake to believe that this right is somehow held against the inanimate object, rather than against the other agents within my socio-legal sphere.

Not all of the conventional legal relations traditionally associated with the concept of property ownership are, strictly speaking, rights. Philosophers generally follow Wesley Hohfeld’s (1919) understanding of rights as claims, which are characterised by their correlative concept, duties. Rights of this sort imply duties held by others. If the right I have over my teapot is a right in the sense of a claim, then it implies a correlative duty in others to respect – and forbear from interference with – my ownership of it. Put crudely, my property right means that, under most circumstances, you are obliged to keep your hands off my stuff and that the relevant legal authority, if required, can enforce this obligation. Not all rights are claims in this sense. It would be unusual to interpret the right to free speech, for example, as a claim that generates a corresponding duty for others. Such a right does not conventionally imply any corresponding obligation that prevents any person from interfering with its exercise, perhaps by talking over you, or otherwise distracting your audience as you address them. Rights to both engage in and disrupt free speech would seem to co-exist coherently, without duties of non-interference appearing on the scene. It arguably makes more sense to construe free speech as what Hohfeld terms a privilege (or liberty) right, which correlates not to obligations but merely to the privileges held by others. When a person has a privilege to undertake an action, what this means is that they are under no duty to refrain from it: privileges are essentially (negative) freedoms to undertake actions without fear of penalty, but they do not entail protective duties imposed on others to enable those actions.

While it might seem obviously true that property rights are claim rights with implied duties of non-interference held by others, thinking of ownership as a bundle of discrete legal relations complicates this view. My ownership of a teapot may customarily involve my right to exclusive use of it, but it may also include more than this, or it might come with certain conditions or limitations attached. In addition to my right to use, my ownership will likely also include any number of what Hohfeld refers to as powers. In the Hohfeldian framework, a power means the ability to transform legal relationships. My ownership right may incorporate, for example, the power of transmissibility, wherein I (as owner) can decide to give you my teapot – and the bundle of entitlements that come with it – through an exchange or, after I die, as a bequest.

In an influential essay on the meaning of property, A. M. Honoré lists eleven ‘standard ingredients of ownership’, and thus identifies some of the conceptual sticks that we might expect to find in our bundle of rights. According to him:

Ownership comprises the right to possess, the right to use, the right to manage, the right to the income of the thing, the right to the capital, the right to security, the rights or incidents of transmissibility and absence of term, the prohibition of harmful use, liability to execution, and the incident of residuarity. (Honoré 1993: 370)

One of Honoré’s key observations is that it is not necessary for all of these legal relations to be present for a status of ownership to obtain. Having a property right can mean different things in different contexts – we should not expect all bundles to look alike in terms of the particular sticks they contain. An implication of this observation is that several of the listed relations are sufficient conditions for the existence of ownership. We can, Honoré thinks, make sense of a person owning a plot of land without her having any corresponding power to bequeath it to whomever she pleases. His list of possible relations of ownership suggests some flexibility in its understanding and does much to help illustrate the bundle theory of property. The upshot of the bundle thesis is to shift our focus to the discrete sticks within it and expose each to its own analysis. What we might think of as ownership becomes reducible to its elemental parts, which may themselves have different moral, political, or legal justifications. A focus on the bundle of rights involved in a particular set of legal relations reveals the contingency of their relationship to each other: a person’s right to occupy a plot of land has no necessary connection with any coincident right to transfer it. Whether these individual relations happen to co-exist on a specific occasion arguably tells us nothing about any discernible idea of property as a unified whole. We can easily envisage situations of ownership existing with bundles of fewer or different entitlements.

An entailment of the bundle thesis – and perhaps one of the motivations driving its advocacy – is that the very notion of property as a singular object of study is a product of mistaken, mystified thought. Reference to an overarching concept of ownership would seem to posit an illusory unity to what is not actually one, but numerous legal relationships. We cannot consider such relationships as constituting any kind of singular entity without incurring important misunderstandings of their natures, justifications, and implications. On the bundle account, it makes no sense to analyse ownership as an institution and we should attend instead to specific practices like the right to use or the power to transfer. The concept of property thus vanishes out of sight, with the notion of an owner a misleading oversimplification, perhaps even a category error, with no possible basis in reality.⁴ It emerges as a fiction, a weirdly inaccurate kind of shorthand device that encourages the reification of a popular idea that blinds us to a proper understanding of social and legal phenomena.

The bundle theory of property might appear irresistible. It does always seem possible, after all, to separate the idea of property out into distinct legal relations, such that our everyday notion of ownership slips away. The view that exclusive use is capable of serving as the conceptual core of property is obviously impossible to square with the compelling nature of the bundle thesis of property, which implies that giving a central place to use (or any other imagined essence) is a somewhat arbitrary stipulation that will not do the work required of it. In spite of the dominance of the bundle approach – that pushes us to avoid talk of the concept of ownership altogether – I think that it does make sense to continue to invoke property as a legitimate and fruitful focus for our theoretical attention. An historical approach to political ideas allows us to sidestep debates about the meaning of property, or indeed of any other contested political concept. We can avoid the culs-de-sac of a conceptual essentialism on the one hand, and a denial of meaning on the other, by thinking of property as a cluster of contingently related ideas that comprises an historical tradition of thought. On this understanding, the following chapters are not about property in the sense of a singular concept that stands outside, or stretches across, time, but are rather concerned with rival conceptions of property that together form an intellectual tradition, and include the various and discrete relationships highlighted by the bundle theory.

In this book, I highlight important parts of the tradition of thinking and arguing about property. I examine and assess conceptions and normative contestations of property advanced by different individuals, who are often in direct conversation with each other. We will consider each of these theories on their own terms, insofar as the discussion will not assume an established definition of property to compare against their individual understandings. Such an author-centred analysis avoids cementing intellectual traditions into rigid ideologies. Although I will regularly invoke political or theoretical traditions – libertarianism, utilitarianism, anarchism, and so on – I use these labels loosely; as I will make clear, Nozick’s theory does not exhaust the libertarian theory of property and Bentham’s does not define the utilitarian alternative. No individual theory of property is reducible to the intellectual tradition of which it is part or the political ideology it is supposed to represent.⁵