Property Outline
What is Property?
I. An Unanswerable Question
a. Property is generally defined as rights among people concerning things.
II. Property and Law
a. Legal Positivism
i. Property rights only exist to the extent that they are recognized by our legal system.
ii. Rights in general arise only through government
b. An Illustration: Johnson v. M’Intosh
i. Only the title recognized by the government in this case constituted the actual title. Since the government did not recognize the first title, that title holder did not own the land.
c. Natural Law Theory
i. Rights arise in nature as a matter of fundamental justice, independent of government. Government exists to ensure rights.
III. Defining Property: What Types of “Rights” Among People
a. Scope of Property Rights
i. Property rights exist for the benefit of society. They exist only to the extent that they serve a socially-acceptable justification.
b. Property as a “Bundle of Sticks”
i. Overview
1. All rights in the bundle can be limited or restricted by society in some way.
ii. Right to exclude
iii. Right to transfer
iv. Right to possess
v. Right to use
c. From Rights to Relationships
i. Since property owners have rights and duties it may be more accurate to define property as relationships among people that concern things.
IV. Defining Property: Rights in what “Things”?
a. The Problem
i. What “things” can be the subject of property rights?
ii. They are divided into 2 categories:
b. Real Property
i. Consists of land and anything attached to it (fences, buildings, trees, etc.)
c. Personal Property: 2 categories
i. Chattels
1. items of tangible, visible personal property
ii. Intangible Personal Property
1. Intangible, invisible things like stocks, bonds
ii. Seeks to explain how rights of private property arise in unowned natural resources
b. Critique of theory
i. It helps to explain how property rights evolved, but it does not adequately justify the existence of private property.
ii. It is counterproductive because it encourages waste of natural resources by destroying the incentive to conserve and encouraging people to take as much as they can.
III. Labor-Desert Theory
a. Nature of theory
i. People are entitled to property produced by their labor.
ii. Four basic steps
1. every person owns his body
2. thus, each person owns his labor
3. so when a person labors to change something in nature for his benefit, he “mixes” his labor with the thing AND
4. By the mixing process, he thereby acquires rights in the thing.
Strong trace in American Law
