PROPERTY I
Collette
4 Principle Themes:
Political. The political argument in favor of property holds that (unless distributed in a grossly unfair manner) it promotes stability and constrains the power of government. Against property it is claimed that the inequality which necessarily accompanies it generates social unrest.
Ethical. From the moral point of view, it is said that property is legitimate because everyone is entitled to the fruits of his labor. To which critics respond that many owners exert no effort to acquire what they own and that the same logic requires everyone to have an equal opportunity to acquire property.
Economic. The economic line of reasoning for property holds that it is the most efficient means of producing wealth, whereas opponents hold that economic activity driven by the pursuit of private gain leads to wasteful competition.
Psychology. The psychological defense maintains that it enhances the individual’s sense of identity and self-esteem. Others assert that it corrupts the personality by infecting it w/ greed.
Classical Antiquity:
Golden Age.
· Distinction between “mine” and “thine” were unknown. Inequalities of status and wealth are “unnatural.”
· Hesiod: 4 metallic ages: Golden, Silver, Bronze and Iron
· Influenced Renaissance period.
· Plato’s Republic:
v Inspired by notion of Sparta where the govt. prevented the accumulation of wealth in the hands of the elite.
v Spartans were forbidden to own material goods, their wives and children. Wives were to be shared and children to given to the state for martial training.
v Political upheavals originate in a disagreement about the use of the terms “mine” and “not mine.”
v Ideal Platonic state: Rulers called Guardians – oldest and wisest
· Owned no property
· Virtue and property incompatible
· Communal
o Plato’s Laws: Allowed private property but wanted the state to ensure that it did not lead to extremes of wealth and poverty
o Aristotle’s Politics:
· Shared Plato’s belief that extreme inequalities in wealth lead to social strife.
· However, regarded the institution of property as indestructible and a positive force.
· Property is an attribute of the household and not of the state.
· Opposed common ownership on utilitarian grounds: i.e. no one takes proper care of objects that are not his.
· Social strife comes when people hold things in common. Human strife is not a result of wanting property but a result of human nature.
· Enlightenment will overcome the need for strife not the abolition of private ownership
· Property enables men to be charitable
· Difference between Plato and Aristotle foreshadow the course of thought on the subject for the next 2,500 years: the continuing controversy between ethical idealism and utilitarian realism.
· Stoicism and Natural Law: God’s universe was rational and capable of being grasped by human intelligence.
· Conquest revealed numerous variations of law.
· Was there one universal law?
· Aristotle spoke of justice as existing in two forms: legal (conventional) and natural which gave rise to Stoical idea of Natural Law.
· Natural Law is one w/ reason both in nature and in human nature.
· Fundamental principles of the social order are not subject to change because they are embedded in the natural order.
· Idea of Natural Law and Property revolves around the question whether property belongs to the “natural” or the “conventional” order of things. This issue lies at the heart of the dispute between the moral and pragmatic approaches: for if property is a matter of convention it can be done away with, but if it belongs to the realm of nature, it is an unalterable fact of life.
· Roman law formulated the concept of private ownership, dominium and applied to real estate and slaves.
· Dominium: “the right to use and consume one’s thing as allowed by law”
· lawfully obtained
· exclusive
· absolute permanent
· Again, as Roman’s conquered, they encountered various forms of law. They had to derive a common core of laws to apply.
· Synthesis: “right and wrong are not arbitrary concepts but norms rooted in nature and therefore binding on all mankind; ethical problems are to be solved w/ reference to the Law of Nature, which is rational and supersedes the positive law of individual societies.
· An essential element of the Law of Nature is the equality of man, specifically, equality before the law, and the principle of human rights, including the rights to property which antedate the state and are independent of it.
· Romans, however, treated private property as part of the Law of Nations not the Law of Nature. It wasn’t until the 16th and 17th centuries did people see property as a feature of Natural Law. They recognized that government could not interfere w/ private property b/c it had been created in order to protect it.
INTRODUCTION:
1. Acquisition. Property
oncept to explain the basis for property rights.
Johnson v M’Intosh
Why is this case important? Foundation of property rights in a fledgling nation.
Background: Plaintiff believed he had purchased some property from the Piankeshaw Indians. Defendant acquired the same property under a grant from the United States.
Issues: Can the Indian title be recognized by the courts of the United States?
Historical argument. Discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which might be consummated by possession. The Indians has rightful occupancy but not sovereign power to transfer title b/c discovery gave exclusive title to those who made it. In some instances the governing body conveyed discovered land to the Indians – right and title of the Northern Neck of Virginia, for example. In most cases, grants were made w/ the Indians occupying the land but not given title to it. In short, the government has the ability to convey title to the land and is the only party that can buy property from the Indians. The right to title to land also came by conquest. However, the right of possession of the land by the Indians has never been questioned. After their conquest, though, peaceful assimilation was impossible because of the warlike features of the Indians.
Collett:
Who had the right to transfer the property?
· Does possession equal ownership?
· Where do these original rights come from?
· Discovery
· Conquest
Right of occupancy
· e.g. Homestead laws. Man owns property. Marries and he dies. The wife has right to occupy but she cannot sell.
· Ejectment: the ejection of an owner or occupier from property. Legal action by which a person seeks to recover possession and damages.
Note 3: 1st in time controls?
· No. What is the legally relevant act? First in time to do what?
· Occupation alone does not equal ownership.
Political power whose power derives from its dominion
