What Is property

I. INTRODUCTION

A common dictionary entry defines property as a thing or collection of things that one owns, (1) whereas a frequently repeated legal definition describes property as a bundle of sticklike rights. (2)

Neither definition, however, is especially illuminating. The former fails because its most relevant term is not “thing(s)” (property not being a synonym for things) but “owns,” and what it means to own something is not explained. The latter meaning falls short as it does not indicate what part of a bundle of separable rights, which includes, for instance, rights of possession, control, use, and exchange, is the necessary minimum to constitute property, implying that the word may have no common convention and may thus be meaningless.

Further confusion arises in the opposing and wildly varied connotations suggested by property. It connotes theft, (3) murder, (4) and slavery (5) to some but security and liberty to others. (6) Anthropologists have identified property with social relationships of power, (7) but philosophers have called it a “myth.” (8) It either exploits the poor, (9) or protects them most of all. (10) Some view property as a matter of natural right (11) while others see it as an artificial creation of the state. (12) Its institution may lead to environmental degradation (13) or be the principal hope for preventing ecological disaster in the world’s rainforests. (14) Legal scholars assert that property is in rem as opposed to in personam, (15) but to many of them the characteristics that define property are still as ambiguous as a Rorschach inkblot.

In both the theoretical and practical sense, however, “property” is an enormously significant word. The American Revolution was fought over the continuing British abridgement of colonial property, (16) and the communist upheavals of the twentieth century took the property right as a primary target. (17) There is increasing conviction that the material rise of the West during the last 300 years has been directly attributable to property’s legal institution, (18) an institution that also establishes, not coincidentally, the foundation for modern business activity. (19) Property, and not capitalism, economic freedom, the private market, or big business, most clearly focuses the issues surrounding topics as varied as how to bring wealth to emerging economies, whether governments should engage in social welfare redistributions, and whether music trading over the Internet can be considered anything more than theft. Property and liberty are intertwined in theory and history, and most of the subjects of law–contract, tort, criminal prohibition, regulation, and even much constitutional interpretation–fan out like spokes from the conceptual hub of property. (20) The implications of these sweeping assertions both for the private market and those who study it, combined with the divergent views of property, suggest why the meaning of property requires a commonly grasped definition along with its appropriate development.

This article offers such a definition and the basic contours of its development. In some respects, the definition will appear old and familiar, especially in its emphasis that property establishes private exclusivity in resources, but in other respects, principally that what property connotes is a negative, constitutional, blanket right and not a positive bundle of rights, the definition argues for a relatively unfamiliar view of property. The article then develops and defends the definition in a way that contains the invariant conceptual core, or essential convention, of the word but also admittedly expresses elements of a normative meaning for property in light of its role in history and the private market. Note that what follows is not a full legal or political investigation of, nor moral justification for, specific rules applying property to different limited resources, but a meaning for the term “property” that clarifies a continuing dialectic concerning a most misunderstood institution.

II. A DEFINITION OF PROPERTY

One of the stark facts of human life is that there are limited resources at any specific moment to secure both human survival and the perpetuation of the species through reproduction, a fact that leaves few people worldwide able to say that they have enough of what they need or want. Coupled with the reality that humans are both immensely social beings and individuals with autonomous interests and goals, the spectre of limited resources causes compelling frictions over who gets what in society. (21) In Western political theory, the state comes into existence in response to how individuals in society have access to limited resources. (22)

Confronting the inevitability of limited resources–defined as whatever, limited in quantity, that humans might need or want (23)–the state responds with a system, or set of institutions. (24) These institutions may be contrived deliberately by the state, or they may grow organically out of the values, customs, and practices of the people, (25) but they are distinguished along a spectrum that involves the state itself to a greater or lesser degree in the actual generation of and distribution of resources, that is, the state either plans for the production and distribution of what individuals need and want or at a minimum establishes a state-supported framework within which private individuals themselves generate and distribute resources according to their plans. In fact, the state can combine its own planning with the planning of private individuals, establishing a mix of infinite variation, and the record reveals that even the most centralized state planning also enforces some private possession and use of resources. (26) Conversely, even societies that allow production of the most comprehensive private resources require significant state involvement in specifying which resources are (or are not) protected and in maintaining the institutions that protect these resources. (27)

From Roman times, the most significant word used in political and legal theory to denote the distribution of limited resources in society has been “property.” The English word derives from the Latin proprietas, or “ownership,” in turn from proprius, which means “own” or “proper.” (28) Appreciating its etymology, however, does not provide an adequate definition for “property” as it is applied to limited resources, and the lack of definition results in considerable confusion in connection with important discussions involving this pervasive yet slippery word. Although “property” has a variety of connotations, (29) two basic meanings predominate, and they fairly reflect the confusion that the word engenders. First, property is “that which is owned,” a meaning that appears in both political theory and popular usage (30) and which the Supreme Court has referred to as property “in its vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law.” (31) This usage focuses on property as “thingness,” that is, as physical resources themselves, a focus that leads to philosophical discussions about how to distribute–or redistribute–“property” in society by taking it from the rich and greedy and giving it to the poor and needy, and Bill Gates is thought of as having accumulated more “property” than anyone else.

This first meaning has major conceptual deficiencies. (32) Although a moment’s reflection convinces that no political or legal discussion of the right to limited resources can be advanced when property is considered not a right but the resources themselves, even lawyers and judges often use the word to refer to resources, especially land, which produces curious redundancies in case opinions such as “property owner.” (33) In an essential way, and not just a more technical and legal sense, property means something quite different from the resources to which it applies. It refers to the right of “ownership,” (34) which is the second common meaning of the word, but because property and ownership are legal equivalents, both basic meanings of property collapse in unilluminating semantic circularity: “property is that which is owned” becomes “property is property,” and “property is the right of ownership” becomes “property is the right of property.” Theorists from Cicero, St. Augustine, and St. Thomas Acquinas to John Locke, Jeremy Bentham, and Karl Marx, have used the term without adequate definition, and to some scholars it is merely considered “a contested concept and one that evolves historically.” (35)

Referring to property as ownership–the second meaning–does suggest that property is not an object, thing, nor resource but a right that relates people to each other in regard to limited resources. This insight is promising for if the right can be defined, the query about property’s meaning will have been answered. Unfortunately, most current legal scholarship of property does not make it easy to specify this right. Indeed, the right is usually referred to not in the singular at all but “in terms of bundles of rights, obligations and interpersonal relationships” (36) that “have nothing in common except they are exercised by persons and enforced by the State” (37) and may be conditional or absolute, terminable or permanent, comprehensive or restricted, and personal or impersonal. (38) Property as a “bundle of stick-like rights” represents the prevailing view, which was advanced by the legal realists in the early twentieth century and embraced today by most scholars and by the Court. (39) The positive rights comprising this bundle include the rights to possess, to use, to manage, to generate income, to consume or destroy, to alienate, and to transmit through devise and bequeath. (40)

Promptly confounding this view is the rather curious fact that “property” remains even after one of the rights is removed from the bundle. When A leases possession of Blackacre to B, A continues to have property in Blackacre, (41) and in a very real sense, B now also has property in Blackacre–leasehold property. The bundle of rights can be unbundled until no particular bundle or subbundle of rights adequately establishes ownership, and “property” is left even after the variously asserted positive rights of property are gone. (42) However, if property exists after its positive rights are gone, perhaps it is the thing–the land or car suggested by the first definition–or because the first definition has been shown to have semantic shortcomings, perhaps “property” lacks adequate enough meaning to warrant any usage.

Actually, property is neither myth nor chimera and once circularity and “thingness” have been extracted from its usage, a meaningful essence remains that reflects a conventional and functional appreciation of the word over time. From this essence, it is possible to define property as a single negative right, the right of exclusion as applied to limited resources. Property is the constitutional and legal right to exclude others–including the state–from specifiable limited resources originally possessed or acquired without coercion, deception, or theft. According to this definition, property has several characteristics. It is: (1) a constitutional right

III. PROPERTY AS A CONSTITUTIONAL RIGHT

The significance of property goes far beyond the body of rules that flesh out the way one can lay claim to Blackacre or widgets. It is the hub of the entire legal system, and its basic aspect is constitutional. “Constitutional” refers to property’s role as a very primary institution in formulating society, in explaining why we come together as a people and a nation. (43) The Federalist Papers maintain that “the protection of different and unequal faculties of acquiring property” is “the first object of government.” (44) The United States Constitution in the Bill of Rights recognizes property’s constitutional nature, (45) as do the constitutions of several other nations. (46) Under the takings clause of the Fifth Amendment, (47) the state cannot take property except for a public purpose and only upon the payment of just compensation, which is a type of forced but fair exchange: one resource for its equivalent. (48) Further, the right of property cannot be taken at all according to the Fifth Amendment except by “due process of law.” (49) Both of these references to property are notable because they assume the state’s response to the problem of limited resources is the institution of property

In a day when ignorance about the significance of property as a constitutional institution is widespread, (50) the antidote to ignorance in the United States requires only examination of the historical facts. The Revolutionary War was fought because Great Britain insisted upon taxing resources and otherwise abridging the British colonists’ right of property without due process of law, (51) specifically without the consent derived through parliamentary representation. (52) That the no-taxation-without-representation argument was familiar to the British and had been asserted against their kings prior to the American Revolution made the British colonists feel that even the minor taxes levied against their resources without their representation in Parliament threatened the constitutional right of property as inherited by all British subjects. (53) In the “Massachusetts Circular Letter,” Samuel Adams wrote of an “essential, unalterable right in nature, engrafted into the British constitution as a fundamental law, and ever held sacred and irrevocable by the subjects within the realm, that what a man has honestly acquired is absolutely his own, which he may freely give, but cannot be taken from him without his consent.” (54) In 1647, the British parliamentary army spokesman Henry Ireton had expressed simply, “Constitution founds property.” (55)

The Framers of the United States Constitution, with James Madison at the helm, (56) assumed the existence of property as a constitutional institution and, further, had a very broad view of the resources that the term “property” protected. It certainly protected those resources such as land and goods that traded in the marketplace, but it also protected facultative resources, that is, the personal resources comprising one’s talents, efforts, expressions, and practices. Madison’s view is instructive:

Property … in its particular application means that

“dominion which one man claims and exercises over the

external things of the world, in exclusion of every

other individual.” In its larger and juster meaning,

it embraces everything to which a man may attach a value

and have a right

a like advantage. In the former sense, a man’s land, or

merchandize, or money is called his property. In the latter

sense, a man has property in his opinions and the free

communication of them. He has a property of peculiar value

in his religious opinions, and in the profession and

practice dictated by them. He has property very dear to

him in the safety and liberty of his person. He has an

equal property in the free use of his faculties and free

choice of the objects on which to employ them. In a word,

as a man is said to have a right to his property,

he may be equally said to have a property in his rights. (57)

Importantly, neither Madison nor many other American colonists considered the “larger and juster meaning” of property to be merely a rhetorical device. (58) Today, it is fashionable to separate the facultative resources of the person from the nonfacultative resources externalized and traded in the marketplace and to think of the right to the former as liberty and as somehow different from, separate from, and superior to the right to the latter, which is property, but it was not so to the Constitutional Framers who appreciated property as an institution that legally specified their desired relationship to the state with regard to all kinds of limited resources, including those of the person. (59) Madison said that one has “a property very dear to him in the liberty of his person” and “an equal property in the free use of his faculties and free choice of the objects on which to employ them.” (60)

The Bill of Rights could have protected both facultative and nonfacultative resources with more economy of language by just asserting that Congress make “no law abridging the freedom of property” but it did not do so for several possible reasons. First, before and during the Revolutionary era, the property in nonfacultative resources was considerably more secure than that in certain facultative resources of the person. (61) Throughout history not all resources have been protected by property. (62) Citizens could own land and trade goods with greater freedom under the common law than they exercised when speaking out against established public authority or conducting preferred religious services. (63) Perhaps, then, the Framers of the Bill of Rights identified for protection the exclusionary right to specific facultative resources like speech not because they were considered of a more significant order of importance to the citizenry but because British law recognized their protection less. Madison may have advocated the “larger and juster” sense of property and applied it to the “free communication” of opinions, religious or otherwise, due to the constitutional significance that his fellow citizens accorded to property in nonfacultative resources, a significance which he wished to remind them was also associated with the facultative resources of the person. (64)

A second reason that the Framers may have distinguished property in facultative resources from property in its “particular application” concerns governmental taxation and taking. A recognized concomitant of the constitutional property right is the necessity for taxation of private resources. (65) Recall that the Revolutionary War was fought not because the British taxed colonial resources but because they taxed these resources in a way that deprived the colonists of property (the right to exclude) without consent and representation. (66) To protect both facultative and nonfacultative resources with police, courts, and military from theft, coercion, deception, or foreign misappropriation and to establish public infrastructure like roads, bridges, and a post office that supports these resources is expensive and requires the public taxation of private resources that property protects. Because it is considerably more feasible to tax nonfacultative resources that have market value than it is to tax the facultative resources of the person, (67) it is appropriate that the Framers differentiated the broad and narrow senses of property for tax purposes. This should not be taken to mean, however, that speech freedom is more constitutionally important to the citizenry than the freedom to own land, trade widgets, or earn income. (68)

Likewise, the takings clause of the Bill of Rights applies only to nonfacultative resources like land rather than to the facultative ones like speech because there is no public purpose like road building associated with “taking” facultative resources and therefore no basis for state takings of speech and religion. (69) Compensation for governmental takings implies a nonfacultative resource and a market by which that taken may be valued

A third reason the Bill of Rights distinguishes among the several rights is that they all enjoy distinct histories and have had distinct names attached to them. The rights of property, speech, religion, assembly, bearing arms, privacy from unreasonable searches, representation by counsel, habeas corpus, trial by jury, and so forth have become significant at various times in history, and the rules of their interpretation and application reveal differing developmental emphases. However, chronological and situational differences of use should not impose blinders that prevent the perception of unity in these terms. As Madison suggests, these terms can be reduced to the “larger and juster sense” of property, and for scholars, the business community, and nation builders who seek to appreciate the unity in the constitutional origins of the U.S. legal system, a certain reductionism communicates clearly. The guarantees of the Bill of Rights all comport exclusion of the state from interfering with the broadly defined facultative and nonfacultative resources of the private person. Also, as the next section maintains, the centrality of laws implemented by the state protect the right to exclude others from an owner’s resources, that is, they enforce the right of property against the general community.

IV. PROPERTY AS A RELATIONSHIP BETWEEN THE INDIVIDUAL AND THE STATE

Some commentators have described property as a relationship between an individual and an object. (72) Observing that a human can only have legal relationship to another human, others have asserted that property is a relationship between individuals, (73) which seems accurate but is incomplete because property should also be grasped basically as a legal relationship establishing a boundary between an individual and the state, (74) a position already suggested by the constitutional limitation against the state’s taking of private resources. The emphasis in this section shifts from property’s role as a basic institution of Western society in general and the United States in particular to property’s formal creation and implementation under the rule of law as enforced by the state.

Property is both created and applied through law, which is the formal ordering force of the state, and as Thomas M. Cooley, one of the most influential American constitutional treatise writers of the nineteenth century, asserted “[t]hat is property which is recognized as such by law, and nothing else is or can be.” (75) If law does not exist apart from the state, then neither does property, and if property protects the resources that are “appropriately” exclusive to an individual–that is, those that are originally possessed or acquired without coercing, stealing from, or deceiving others –then the relationship indicated by property is one not only between individuals but also between the individual and the state. This approach to property is both definitional and historical. It partakes of the flat of definition, but at the same time it reflects the history of property as a legal concept. (76) Although property in particular resources depends upon values prior to law and arises out of informal ways of ordering, there would be no need for the state to enforce property if respecting the resources held by others were entirely natural among persons. (77) Property establishes and preserves social order and encourages resource development by protecting private resources acquired without coercion, theft, or deception from the predations of others in the general community. Little evidence points to a specific human inclination to respect the resources of strangers absent a history of law to reinforce what is natural: a fear of how others will respond if we take the limited resources they have acquired and do not choose voluntarily to share. (78)

Further, formal property arises in a society that likely does not enjoy the common values and customs regarding the distribution of limited resources that are found within small bands of often-related individuals, which was the condition of the hunter-gatherers who prevailed during much of human existence. (79) It arises as the state’s response to the problem of dealing with limited resources in a heterogeneous society of strangers, which is the condition of modern nations. (80) “Property” is a thoroughly artificial concept, a legal concept between individual and the state that addresses the problem of limited resources in societies where the appropriation of one’s resources by those not family or in other close affinity is apt: (1) to produce conflict

The state’s role in the meaning of property is importantly revealed in its maintenance of a property enforcement process–primarily the police, courts, and various laws–that protects owners from the misappropriation of their resources by others and ensures confidence in the identification, acquisition, possession, and exchange of resources by private persons, enabling them when necessary to resolve disputes through a consistent, transparent forum. (82) During the last decade, Russia’s lack of a functioning property enforcement process accounts in major part for its failure to achieve stable private markets, (83) and this failure underscores the assertion that the foundation of a successful private market in the modern nation is the law of property adequately enforced by the state. Without the state’s rapid, certain, and equal enforcement of property law, the modern market framework for handling limited resources cannot reach its potential to generate prosperity, and as the state places legal stumbling blocks to the nonharmful uses of resources, property systems weaken.

V. PROPERTY AS ENFORCING THE PRIVATE RIGHT TO EXCLUDE OTHERS

Because the reality of limited resources has sometimes led in Western history to legal relations that impose various duties and obligations against the ownership of resources to provide military or other service, to share resources with others, to allow others to use resources, and to pay taxes, it is important to appreciate that “property” is not just any set of such legal relations. At the very heart of property lies its singular conceptual core, which is the private right of exclusion. (84) If having “property” means anything, historically and legally, it is that the owner can exclude others from the resource owned and that others have a duty not to infringe this right. Even when “property” is used to mean the resource itself–for example, land–it is not understood to refer to any piece of land but to one from which an owner can exclude others. (85) As the Supreme Court has recognized, the right of exclusion represents the sine qua non of property: “The hallmark of a protected property interest is the right to exclude others.” (86) Further, the positive “bundle” of rights like possession, use, and alienation can all be derived from the negative exclusionary right. (87) For example, if an owner can legally exclude others from interfering with the resources of her land, she can possess the land, use it in a myriad of ways that leave an equal right in others to use their resources, or transfer it through sale, lease, or gift to others.

Private exclusivity of resources captures the essence of what is most controversial about property. To understand why some consider property to be “theft,” “murder,” and “exploitation,” one has only to appreciate that “property” means some in society can legally hold more resources than others have and that the state generally places a duty on the members of community to keep away from these resources no matter how sorely they may desire or need them. This private exclusivity of resources generates in some observers the images of greedy capitalist plutocrats skimming the surplus value of bent laborers, (88) of goutish nobles with trap guns blowing the legs off hungry villagers for poaching rabbits, (89) and of absentee landlords starving the families of tenant farmers to exact the last ha’penny of rent from their lands. (90)

The contrary and equally controversial view of property also emerges from “exclusivity” as the conceptual core of the property definition. From this view, it is precisely private exclusivity that gives greatest incentive to the acts that maximize the development of existing resources and motivates the creation of new resources like innovative technologies, more powerful medicines, better ways of growing food, and easier methods of communication, computation, and information manipulation that redound to the general welfare. (91) According to an increasing chorus of scholars, the dominant material rise of Western civilization during the last 300 years is attributable to the adequate institution of exclusive private resources that the state legalizes and enforces. (92) Further, in the Madisonian sense, the strong symbiosis between liberty and property arises because an individual enjoys private exclusivity in her speech, religious practice, and faculties even as she has private exclusivity in her nonfacultative resources of land, goods, and intangibles. Semantically, one may assert as easily a “property” of one’s faculties as a “liberty” of them or a “liberty” of nonfacultative resources instead of a “property” of them, making the two exclusionary terms virtual equivalents. (93)

That exclusion primarily defines the property right also suggests that property is most appropriately grasped as a negative blanket right, (94) a conclusion with an implication that may surprise those whose familiarity with property concerns primarily the positive legal rules concerning real estate registration, warranty and quitclaim deeds, mortgages, secured transactions, bailments, fixtures, negotiable instruments, securities, and the sale of goods. (95) Because property is a negative right, the state in instituting property is not positively granting particular resources to anyone, (96) and therefore Bill Gates and Billie Worker have exactly equal “property” although the former owns a hundred-thousand times more resources than the latter. It is the failure to appreciate the negative blanket-nature of property that allows people, even legal scholars, to believe that any rich person has more property than they do. (97) The exclusionary right that is property permits the unequal accumulation of resources, but because it is a negative right, it leaves both generation and distribution of resources to the acquisitive talents and propensities of the private person.

Although property is an exclusionary right, it is not an absolute one. (98) Exclusivity does not mean, for example, that no limits can exist on the manner in which an owner may use resources, including the resources in herself, and thus even under a strong property regime that permits owners to exclude the state and others adequately from a very wide set of resources, tort and criminal laws arise that sufficiently limit an owner’s exclusionary right over resource use to ensure that she does not injure the resources of other owners, (99) to secure public resources controlled by the state, and to protect common environmental resources like air and water. Likewise, through taxation, the state limits the exclusionary property right even under the strong regime but only to pay for protecting the resources secured for private persons through the military, law enforcement, and the courts and for investment in public infrastructure resources like roads, bridges, and dams that the state can furnish more cheaply than private persons. (100) Under a weaker property regime, which is characterized by inadequate enforcement or by various restrictions and limitations applying to resource ownership that impair productive uses of resources without protecting an equal right in others, the state may tax not just to protect private resources, or for public investment purposes, but to redistribute resources. Although redistribution moves society away from individual ownership and diminishes incentive, it does not change the definition of property, which has exclusivity at its conceptual core. (101) Analogously, for the state to weaken property in certain resources, for example, by prohibiting sale of body organs or sexual favors, does not alter the meaning of the term, only its application. (102)

Importantly, the holding of resources through tenancies in common or corporations also does not contradict the private exclusivity established by property. The general political distinction recognized by property is between private versus state production and distribution of limited resources not in whether individuals alone own resources instead of owning them jointly or having agents manage individual interests in them. “Property” refers etymologically to the ownership that is “appropriate” or “proper” to a person, but as long as the collectivity of the state does not require common or public resource holding or prohibit the private use and transfer of resources, whatever joint arrangements persons privately and voluntarily arrive at for holding resources warrant the definition of “property” as long as the holdings are exclusive against the state and the rest of society.

Some authorities argue that the corporate holding of resources should not be considered the subject of traditional property because an individual owner is not personally managing the resources

A necessary aspect of exclusivity is that resources have specifiable boundaries, boundaries that are capable of being identified, enforced, and protected. Without a boundary, a resource cannot be subject to property because there is nothing objective from which others can be excluded. With tangible resources like automobiles, boundary problems are not likely to arise because easily recognizable physical contours establish boundaries, (106) but intangible resources more often present difficulties of boundary specification. For example, a business owner can have a property in certain forms of information only as long as she takes reasonable steps to keep them secret. (107) The boundary lies in the efforts the owner makes in excluding others from knowledge of customer lists, research and marketing plans, formulas, procedures, and so forth. Similarly, an owner can maintain a property in a trademark only by keeping a recognition boundary established in the minds of the public so that the mark indicates a certain producer and does not become a generic term of reference. (108) The necessity for asserting recognizable and observable boundaries also explains why the law does not prohibit nonowners from the view of an owner’s land or the melodious sound of an owner’s original music that is heard in the street. Violation of the exclusionary right of others in such cases would be completely involuntary and unavoidable if sights and sounds themselves were considered protected by property. The only way to establish control over sights and sounds is for an owner to assert the recognizable boundaries in something–such as land or a copyright–as a basis for excluding others. Nonowners trespass when they enter the boundaries of an owner’s land to see a view, and they infringe when they violate the boundaries of an owner’s copyright in order to hear music, that is, they abridge the exclusive right of property.

Finally, the exclusivity of property implies its application only to limited resources, that is, those that are exhaustible. No reason exists in civil society to apply the property right to inexhaustible resources (109) nor is there substantial evidence that it ever has been. Although this essay does not attempt to justify the application of property to any given resources, the very purpose for a distinction between publicly common resources and privately exclusive resources lies in the fact that the latter exist only because their availability is limited. For instance, debate currently rages over whether property should be recognized in the use of the “spectrum” resource of the Internet’s architecture, and a focal point concerns whether or not this particular resource is inexhaustible, the argument being that it does not necessitate the protection of property unless spectrum use is “rivalrous” because its availability is limited. (110) In general the resources created by applied creative effort and intellectual endeavor, such as those that patent and copyright law protect, are exhausted only in the context of their limited market value. The “fair use” doctrine, which does not extend the exclusionary right to certain uses of another’s copyrighted creation, implies that these uses do not significantly affect the creation’s limited resource potential.

VI. PROPERTY AS APPLIED ONLY TO RESOURCES ACQUIRED IN CERTAIN WAYS

Under the rule of law, property addresses the reality of limited resources in society through careful attention to the equal exclusionary right of others. (111) Even as the concept of property does not allow a person absolute freedom to use resources without restriction, so also it places limits on how one is permitted to acquire resources. Basically, this means that property does not protect resources acquired by coercion, theft, or deception, (112) allowing victims of such acquisition to pursue the acquirer with civil remedies while the state exercises criminal enforcement sanctions. As an institution, property has no role outside of social structure, and in a democratic community based on equality of rights and the rule of law the logic of property in dealing with limited resources in society requires that persons not acquire resource ownership through abridging the equal right of others to their resources.

Stated positively, the common ways accepted for acquiring ownership in a property system include gift, exchange (or contract), accession, confusion, and first possession. (113) The delivery of resources that identifies a gift, the principles of contract that set the framework for voluntary exchange of resources, and the instantiation of property over previously un-owned or abandoned resources through accession, confusion, and first possession are relatively well-understood by legal scholars and lawyers. Although these rules for legally acquiring resources in a property system may show cultural variation, what is important is that the rules not be confused with the concept of property itself, which is the right to exclude others from the resources acquired. (114) Both facultative and nonfacultative resources can be acquired under these rules. X can gift her facultative efforts to Y in the construction of the latter’s house, with Y coming to own the results of the efforts so acquired. Likewise, in house construction or any other area of the private market, X and Y may exchange facultative efforts for nonfacultative compensation (employment) with each coming to own the resources acquired from the other. Importantly, when property is understood not as “resources” but as the legal right to exclude others from resources, it becomes clear that not only acquisitions of nonfacultative resources through sales of goods but also acquisitions of human facultative resources through service and employment contracts are property transactions enabling the very existence of sophisticated private markets.

Finally, in a way familiar to the era of the American colonists and still argued by contemporary theorists, individuals own themselves, (115) such self ownership being acquired through original possession and constituting the central organizing principle behind most of what are traditionally considered “human rights.” From the beginning, individuals own their faculties and the expressions of these resources in all activities of life that do not harm others. Ownership of originally possessed resources is closely analogous to Madison’s property in rights, which meshes almost seamlessly with the historical meaning of liberty. Nor is it strongly tenable that free expression of one’s originally possessed resources through speech or worship is somehow more sustaining to society than their free expression through activity in the private market where the resources necessary to life itself are generated. An institution that balances resource acquisition with the equal right of others–that in Madison’s words leaves “to everyone else a like advantage,” (116) property connotes both liberty and the basis for acquiring a prosperous human society.

VII. CONCLUSION

Lawyers and philosophers alike are apt to continue shouting at trespassers “Get off my property!” when they mean “Get off my land!,” and even the Constitution refers to the taking of “private property” when more meaningfully it should say “private resources subject to property.” The importance to people of the limited resources they need or want when combined with centuries of ambiguous equivalence between “resources” and “property,” and added to the effects of the sometimes inadequate or corrupt implementation and enforcement of the right of property have significantly affected the popular, philosophical, and legal views of this foundational institution of Western legal systems. Many legal scholars will likely continue to criticize “property” without adequately defining the term, perhaps because they believe that property is a mere bundle of whatever the powerful define as “rights” in order to deprive the poor of their needed resources, yet even from the confusion surrounding property may be distilled the essential understanding that property is really neither the resources it protects nor a bundle of uses of a thing disguised as various “rights.” Property is the single legal right to tell others–even the state–to get off, to stay away, to leave alone, not to interfere, that is, it is the right to exclude.

At the conceptual core of property lies what Blackstone termed in exaggeration the “total exclusion of the right of any other person in the universe.” (117) Once a society understands what property is, it may wish to tax the resources property protects, or deny it altogether as applying to certain facultative or nonfacultative resources. The society may hold more to Marx than to Madison in the values that justify property in various resources, but for the sake of clarity in thought, the definition of property should convey a single convention of meaning. Property is an exclusionary blanket right that at a reductionary level in most Western nations is constitutive of the institutional relationship between “We the People” and the state. Some of these nations have comparatively strong property systems that allow owners effectively to exclude their neighbors and the state from an almost infinite set of private resources. Other nations weaken the property right through corrupt or negligible enforcement, heavy redistributive taxations, and inhibiting restrictions on resource use and development. Even within specific property systems, complicated rules of real estate, mortgage, bailment, secured transactions, negotiable instruments, and contract apply the property right with varying degrees of exclusion to different resources. But whether a property system is stronger or weaker and without regard to the multitude of rules that facilitate or inhibit its application and enforcement, the definitional essence of the term “property” as the right to exclude remains–or should remain–semantically invariant.

Clarifying the definition of property provides several advantages. First, it brings coherence to the understanding of the entire legal system, which is now seen as a wheel with property at its center and the spokes of the property system–including contract, tort, criminal law, regulation, and constitutional interpretation–radiating from the hub. Second, although the definition of property itself justifies no particular resource distribution, it illuminates a most important term for the continuing debates over who gets what limited resources in society. Third, it solidifies the U.S. Supreme Court’s apprehension that the state’s interference with the constitutional right to exclude is analytically basic in applying the takings clause. Finally, although understanding the definition of property advanced may be unnecessary to the routine legal selling and buying of Blackacre, widgets, or computer programs–the specific rules of land registration, sales law, and patent/copyright sufficing–such understanding is absolutely necessary for the business community, nation builders, and others to grasp how the legal institution of property provides the necessary framework for the private market and underscores the primacy of law in supporting modern business practice. It places law alongside economics as foundational for studying the wealth of nations.

(1) See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1818 (Philip Babcock Gove ed. 1986) (defining property pertinently as “something that is or may be owned or possessed: WEALTH, GOODS

(2) See infra notes 36-42 and accompanying text.

(3) Most associate the accusation that property is “theft” with Proudhon. See PIERRE-JOSEPH PROUDHON, WHAT IS PROPERTY? 14 (Donald R. Kelley & Bonnie G. Smith trans., 1993) (1840). Those holding Proudhon’s view may have believed that there was a time in nature when everyone had a common use of all physical resources, and when the state privatized resources for an individual through property–thus depriving everyone else of the common use of resources–a type of theft resulted.

(4) See KENNETH PATCHEN, THE JOURNAL OF ALBION MOONLIGHT 25 (1941) (“It has been said that property is theft: I say that property is murder.”).

(5) One of the more unfortunate associations of the word “property” is with slavery, as though the legal concept of property somehow facilitates or promotes human slavery. Although people owned slaves, slavery is actually antithetical to the ownership of one’s rights and faculties–essentially ownership of one’s self–that James Madison termed the “larger andjuster meaning” of property. See infra note 57 and accompanying text. Slavery usually constitutes a type of robbery because it deprives individuals by force of the facultative resources they have in themselves and abolishes the legal right they have to exclude others from involuntarily employing these resources. Going back to the Greeks, various discussions of political society have recognized and accepted the existence of slavery, but they have done so only by the assumption that slaves are materially different from citizens–often that they are less than human and do not enjoy the right to exclude others from themselves. RICHARD SCHLATTER, PRIVATE PROPERTY, THE HISTORY OF AN IDEA 19 (1951) (“[T]hey [Plato and Aristotle] went on to say that some men were natural slaves–beings in human form but without reason, more like animals than men–who could with justice be used as the instruments of another’s good. The proper economic function of the rulers is to consume property and that of the slave to produce it.”). In short, because slaves lack property in themselves, they can be objects of property to others. In U.S. history, abolitionists as well as supporters of slavery argued their points of view from a property perspective. Id. at 203 (quoting the Anti-Slavery Convention of 1883 that “every man has a right to his own body” and “to the products of his own labour”). But see id. (maintaining that “[t]he most effective Southern argument was that interference with slavery was interference with property”).

(6) See JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY or RIGHTS 31-32 (1986) (“The seventeenth-century English constitutional maxim making liberty depend on security in private rights to property may be the most familiar legal doctrine identified by historians of that period.”)

(7) See C. M. Hann, Introduction: The Embeddedness of Property, in PROPERTY RELATIONS, RENEWING

If … somebody else wants to use the food, the house, the land, or

the plow which the law calls mine, he has to get my consent. To the

extent that these things are necessary to the life of my neighbor,

the law thus confers on me a power, limited but real, to make him do

what I want.

Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8, 12 (1927)

(8) JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 260 (1990) (“[T]he myth of property is pernicious because it hides a structure of power and insulates it from democratic debate.”)

(9) See PROUDHON, supra note 3, at 197 (“Property is the exploitation of the weak by the strong.”).

(10) See TOM BETHELL, THE NOBLEST TRIUMPH: PROPERTY AND PROSPERITY THROUGH THE AGES 202 (1998) (“[I]f property laws are applied equally, they will work above all to the advantage of the poor.”). The gist of this assertion is that the wealthy in society can often protect their resources, through force if necessary, whereas the poor need state assistance through well-enforced property law to enable them to exclude others. Cf. LAWRENCE LESSIG, CODE AND OTHER LAWS or CYBERSPACE 131 (1999) (“[Property] is a system for ordering economic relations that greatly benefits all members of society.”)

(11) Natural law views property as a right arising out of the logic of nature. It precedes civil society and is independent of it, an inviolable first principle that the state cannot legitimately alienate. See generally DAVID HUME, A TREATISE OF HUMAN NATURE (L. A. Selby-Bigge & P. H. Nidditch eds., 1978) (1740)

(12) That the state, not nature, creates and institutes the right of property derives from utilitarianism, which regards Locke’s view otherwise as “nonsense upon stilts.” See Jeremy Bentham, Anarchical Fallacies, in NONSENSE UPON STILTS 46, 53 (Jeremy Waldron ed., 1987) (1791). Blackstone wrote of property variously as both a natural right and a conventional civil right, and “[h]e stands convicted of contradicting himself and confusing his readers.” SCHLATTER, supra note 5, at 167.

(13) If the institution of property creates a prosperity based in part on pollution of the environment, it is certainly fair to conclude that the right of property may induce environmental degradation. Compare AL GORE, EARTH IN THE BALANCE 287 (1992) (stating that large Brazilian landowners pursue “short-term profits” at the expense of “long-term ecological tragedy”), with Lynda L. Butler, The Pathology of Property Norms: Living Within Nature’s Boundaries, 73 S. CAL. L. REV. 927, 931 (2000) (discussing “the pervasive and pathological effects of property norms on land and water use, natural resource allocation, and ecosystem management”).

(14) See, e.g., FRANCES CAIRNCROSS, COSTING THE EARTH 142 (1992) (asserting that the primary factor in environmental abuse in the tropical climates is that “rain forests have no clear owners”)

(15) In civil procedure, an action in rem is one instituted against a thing instead of a person, in contradistinction to an action in personam, which is against a person. BLACK’S LAW DICTIONARY 711, 713 (5th ed. 1979). An in rem right is one that a person may exercise against the entire world–one can exclude all others from the object of an in rem right, which exclusion essentially defines property. On the other hand, an in personam right is one that is enforceable only between parties to certain relationships, for example, relationships established by contract.

(16) The colonists and the British fought the American Revolution over whether or not the colonists would have parliamentary representation–a type of due process–in determining the taxation of the resources they owned. REID, supra note 6, at 40 (“Not only was the security of property the purpose of government, it was the very definition of government by law, for a government that failed to protect property ceased to be a government. It was, in fact, a definition encompassing the entire American constitutional case against parliamentary taxation.”)

(17) E.g., Karl Marx & Frederich Engels, Manifesto of the Communist Party, in GREAT BOOKS OF THE WESTERN WORLD 415, 425 (Robert Maynard Hutchins ed., 1952) vol. 50 (1888) (“[T]he theory of the Communists may be summed up in a single sentence: abolition of private property.”). Actually, the Communist Manifesto meant only to advocate abolition of property in land and productive resources, which Marx and Engels intended should initially be held and managed by the state for the common good. The Communists did not object to property in personal items, a belief reflected in the Soviet Constitution. See infra note 26.

(18) See generally infra note 24 and accompanying text. In quick summary, the relatively strong property systems of the Western nations (1) provide maximum incentive for new resource development because they allow private persons to keep the increase from their efforts

(19) The large-scale generation and distribution of goods and services through the private market cannot take place if the state does not recognize and enforce the right of private owners to exclude others from the goods and services they hope to trade in that market. In the absence of property, those who hold resources have no recognized right to them and thus no legal expectation that the state will prevent others from taking them. In such a case, not only will there be no criminal laws to prevent theft and trespass, there will also be no legal concepts of theft, tort law, or contract law to enforce future performance of promises regarding transfer of resources, including the repayment of debts. Rather than being used to generate additional production, private owners will have to expaend substantial resources to secure remaining resources. Cf. JOHN STUART MILL, PRINCIPLES OF POLITICAL ECONOMY 350 (Donald Winch ed., Penguin Classics 1988) (1848).

Even what a person has produced by his individual toil, unaided by

any one, he cannot keep, unless by the permission of society. Not

only can society take it from him, but individuals could and would

take it from him, if society remained passive

interfere en masse, or employ and pay people for the purpose of

preventing him from being disturbed in the possession.

(20) See, e.g., BETHELL, supra note 10, at 20 (“Since Roman times, property has been the most important subdivision of the field of law.”)

Many legal scholars reject the idea that property creates a hub for Western legal systems, and those that do support it are often tentative. See generally Carol M. Rose, Propter Honoris Respectum: Property As The Keystone Right?, 71 NOTRE DAME L. REV. 329 (1996). The rejection of property as an organizational hub or the tentativeness of support for it relate to a misunderstanding of the meaning of “property” and confusion between the definition of the term and certain distributional effects and conditions that likely relate not to the right of property but to abuses arising from weak and poorly administered property systems.

(21) These frictions, which James Madison wrote about in the Federalist papers, create factional groups that threaten to undermine property through the democratic process as the poorer majority vote themselves the resources of the wealthier minority. See THE FEDERALIST No. 10 131 (James Madison) (Benjamin Fletcher Wright ed., 1961) (asserting that “the most common and durable source of factions has been the various and unequal distribution of property.”). Madison believed that “[t]he latent causes of faction are thus sown in the nature of man,” and he maintained that the “regulation of these various interfering interests forms the principal task of modern legislation.” Id.

(22) This response occurs in Western political theory whether it urges a property system or a redistributionist system like socialism. See HUME, supra note 11, at 491 (asserting that “the convention for the distinction of property, and for the stability of possession, is of all circumstances the most necessary to the establishment of human society”)

Not everyone believes Western political theory primarily involves “who gets what, when, and how.” See SAMUEL BOWLES & HERBERT GINTIS, DEMOCRACY AND CAPITALISM 10 (1986) (asserting that “[s]ince World War II, the political lives of the advanced … industrial societies … have increasingly been shaped by popular movements” that “identify with such social needs as sexual and racial equality, environmental protection, nuclear disarmament, and world peace” and “share a novel aspect: their dissatisfactions and aspirations are not only distributional, they are moral and cultural as well”). Although this point is worth pondering, in the end most of these movements express important concerns about the use and abuse of equal rights to acquire and hold limited facultative and nonfacultative resources.

(23) Most accurately, resources are not things but various specifiable uses of things that satisfy needs and wants. For instance, what is important to human life about land is not the describable physical solidity of it but the myriad uses that one can put land to, such as growing food, hunting, mining, timbering, erecting buildings, raising families, securing privacy, and conducting businesses. “Land,” then, describes a type of boundary for establishing property in limited resources. Further consider that it is not the corn that the owner grows on the land that is the resource but the nourishing potential of the corn, the use of its oil as a fuel, or the display of its ears as ornaments.

As to exactly which resources the right of property attaches is in application an issue but in definition should be a nonissue. In application, whether the right of property should apply to the sale of body parts and sexual favors, the consumption of currently illegal drugs, or the uses of land and the factors of production excites heated discussion. To which resources property attaches definitionally should be a nonissue in that no legal meaning of property can realistically contain within its term an a priori specification of every resource to which one could construe it to apply. Interpretation and application of general legal concepts is a major and noncontroversial reason that courts exist in a legal system. For example, over the years the private resources that the Fifth Amendment requires just compensation for taking have been substantially fleshed out in numerous cases, yet still land owners bring new cases. The not-so-deep subtext surrounding the real controversy over property’s definition almost always concerns whether the government or the private market should plan for resource production and whether or not the government should redistribute the resources produced by individual effort for benefit of the entire community.

(24) Not all Western governments were formed intentionally and specifically to deal with the problems of limited resources. Most such governments in fact began as autocratic and monarchial rule, but in the West much political and legal theory has focused on the justifications for and practicalities of how society handles limited resources. In the last several centuries, various institutions have emerged both from theory and practice that emphasize the importance of the state’s concern for the problems of limited resources. Arguably, the institutions of state support for the right of property have been more successful in promoting incentives to wealth formation than have the institutions of government planning, production, and distribution of resources. Concerning the property institutions that the state must implement to establish the conditions for general prosperity. See generally BETHELL, supra note 10

(25) That the state responds to the situation of limited resources through creating and implementing various institutions does not mean that these institutions have no relationship to customs, values, and practices that have emerged organically out of the past. In fact, state institutions that are not based on societal values are likely to fail, or only strong, nondemocratic coercion can maintain them. Cf. LEARNED HAND, THE SPIRIT OF LIBERTY 190 (1953) (“Liberty lies in the hearts of men and women

(26) Article 10 of the Soviet Constitution of 1936 provided that “the personal property right of citizens in their incomes and savings from work, in their dwelling houses and subsidiary home enterprises, in articles of domestic economy and use and articles of personal use and convenience, as well as the right of citizens to inherit personal property, is protected by law.” (Konst. RF) (1936), quoted in STEIN & SHAND, supra note 20, at 216. The main difference between capitalist and communist economies seems that the latter do not permit a property in the factors of private production and exchange, whereas the former do.

(27) See Sunstein, supra note 14, at 930 (“[A] system of private property has to be created rather than merely recognized…. Markets depend for their existence not on passivity, but on active governmental choices.”). Property is a right created and enforced by the state in various resources. The resources of your land are subject to the right of property because the state legalizes your exclusion of others from them through police and the courts.

(28) Charles Donahue Jr., The Future of the Concept of Property Predicted from Its Past, NOMOS XXII: PROPERTY 28, 35 (J. Roland Pennock & John W. Chapman eds., 1980) (“Our word ‘property’ comes either directly or through French propriete from Latin proprietas which means ‘the peculiar nature or quality of a thing’ and (in post-Augustan writing) ‘ownership’. Proprietas is itself derived from proprius, an adjective, equally applicable to physical things or qualities meaning, ‘own’ or ‘peculiar,’ as opposed to communis, ‘common,’ or alienius, ‘another’s.'”).

(29) Such connotations include that property is “power” and “social relationships.” See supra note 7.

(30) Thomas C. Grey, The Disintegration of Property, NOMOS XXII 69 (J. Roland Pennock & J. W. Chapman eds., 1980) (“Most people, including most specialists in their unprofessional moments, conceive of property as things that are owned by persons.”)

(31) United States v. Gen. Motors Corp., 323 U.S. 373, 377 (1945).

(32) It is not that the meaning of property as the “thing owned” is somehow semantically impermissible. It is just deficient in the sense that it does not explain well to nationbuilders in poor property-weak countries what the operational significance of the word is. Referring to land, a car, or Microsoft stock as “property” does not help one grasp what it is about these things that makes them property. This is an omission that is especially glaring when developed nations urge emerging economies to adopt a strong property system in order to produce more resources and enhance per capita income, and what “property” means is ambiguous.

(33) For example, a search of the LEXIS “State Court Cases, All” file on March 4, 2002 returned 4764 results in a scant two-month period for the search “property owner and date after 2001.” If “property” and “ownership” are both synonymous, then “property owner” means “ownership owner,” and the phrase is nonexplicatively redundant. An unfortunate likelihood, suggested by the prevalence of “property owner” in the case opinions, is that many judges are confusing “property” with “things,” especially with land.

(34) LAWRENCE C. BECKER, PROPERTY RIGHTS: PHILOSOPHIC FOUNDATIONS 18 (1977) (“Property rights, as I shall use the term, are the rights of ownership.”). Note that Professor Becker is not asserting that property is that which someone owns

(35) MARGARET JANE RADIN, REINTERPRETING PROPERTY 245 n.45 (1993)

(36) STEIN & SHAND, Supra note 20, at 216. Asserting that property is merely a bundle of different rights confuses the rules that apply property to various resources with the unifying principle of property itself. Just as one can use the word “contract” meaningfully although there are a variety of different contract rules, so too can one adequately define “property,” considering its level of abstraction.

(37) STEIN & SHAND, supra note 20, at 216. This legal realist view derives from the same impetus that deconstructed Professor Langdell’s attempt in the latter half of the nineteenth century to unify disparate aspects of commercial transactions into the law of contracts. See generally GRANT GILMORE, THE DEATH OF CONTRACT (1974). Yet, as “contract” is still a meaningful general term that refers to the legally binding nature of formal agreements, so also is “property” a meaningful term that recognizes the private exclusion of resources from most claims of the state and the general community. In fact, “property,” not “contract,” was one of the absolute rights guaranteed by common law, and in this light it has a better legal and historical provenance than “contract.” See infra note 63.

(38) Cf. R. H. TAWNEY, THE ACQUISITIVE SOCIETY 54 (1920) (“[Property rights] may be conditional like the grant of patent rights, or absolute like the ownership of ground rents, terminable like copyright, or permanent like a freehold, as comprehensive as sovereignty or as restricted as an easement, as intimate and personal as the ownership of clothes and books, or as remote and intangible as shares in a gold-mine or rubber plantation.”). There is a conceptual core to these multitudinous “rights” set forth by Tawney. They are all aspects of the single negative right to exclude, and they represent different ways of using limited resources when one has a property interest in them. For example, when one owns (has property in) land and can thus exclude others from its resources, one can rent the land for a short or long duration and place conditions on its use, subdivide it, incorporate it and sell shares to others, give an easement on it, devise it, exchange it for a rubber plantation, or simply live on it. That the duration of property in a resource may be long or short, or that the owner may fractionate or recombine the resource under the protective property blanket, does not change the meaning of “property” as the right to exclude. Likewise, that various legal rules apply the exclusionary right somewhat differently to different resourceful uses does not change the definition of “property

(39) Among lawyers and judges, there is “near unanimous” agreement on the bundle-of-rights analysis. CURTIS J.. BURGER & JOAN C. WILLIAMS, PROPERTY, LAND OWNERSHIP AND USE 4 (4th ed. 1997). The U.S. Supreme Court first used “bundle of rights” in 1937 in reference to property. See Steward Mach. Co. v. Davis, 301 U.S. 548, 581 (1937) (“Indeed, ownership itself.., is only a bundle of rights and privileges invested with a single name.”). The phrase “bundle of rights” (or, alternatively, bundle of “sticks” in which the property sticks are “rights”) possibly dates to 1888. GREGORY S. ALEXANDER, COMMODITY & PROPRIETY 455 n.40 (1997) (citing his earliest found usage in JOHN LEWIS, A TREATISE ON THE LAW or EMINENT DOMAIN 43 (1888)). In the analysis of legal realism, the “jural relations” approach of Wesley Hohfeld advanced the concept of property as a bundle of legal rights. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913)

Hohfeldian analysis is circular and has its share of critics. See, e.g., Max Radin, A Restatement of Hohfeld, 51 HARV. L. REV. 1141 (1938)

(40) This list of the positive bundle of property rights comes from A. M. Honore, Ownership, in OXFORD ESSAYS IN JURISPRUDENCE 107, 113-20 (A. G. Guest ed., 1st ser., 1961). Omitted from this recitation of his list are what Honore includes as “the prohibition of harmful use,” which asserts the connection of tort law to the meaning of property

(41) That a resource can be subdivided with the ownership right following both a present use and a future reversion becomes obvious when one conceptualizes property as a singular blanket right that allows an owner to exclude others from interfering with the great variety of ways that resources can be used.

(42) The conclusion that one may draw from this linguistic perplexity is actually rather semantically pedestrian: Property is the single negative right to exclude and not at all a series of positive rights. See infra note 84. The so-called positive rights like possession and consumption are instead resourceful uses to which physical resources like land can be put. They are themselves resources which property covers protectively when one acquires them acquired without coercion, fraud, or deception. When X leases Blackacre from Y, X has a present property (right to exclude) and Y has a future reversionary property (right to exclude) in the land. See supra note 41. That one can subdivide one’s resources within describable boundaries and that the state covers these subdivisions with the exclusionary blanket right of property is conceptually straightforward.

(43) See, e.g., JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 645 n.87 (1996) (quoting Thomas Jefferson that “the true foundation of republican government is the equal right of every citizen, in his person and property”). Not every nation is so constituted around a broad property right. In communist nations, for example, the state plans both the general production and distribution of resources. It allows private individuals to exclude others from only a relatively minor set of personal things, establishing that, in terms of degree, property is a much weaker constitutional aspect of the communist society. In still other societies, the relationship between the people and the state may not center at all on the distribution of limited resources but instead on obedience to religious principles (certain current Islamic states) or the maintenance of harmonious social relations (certain former Confucian states).

(44) THE FEDERALIST NO. 10, supra note 21, at 131 (citing a statement by James Madison). Madison is likely using “property” in this context to refer to things that people own, but the essence of the usage is the exclusionary right, that is, the right to exclude others from the resources acquired through “unequal faculties.” Throughout this essay, I quote the term “property” in contexts in which it refers to things that people own but where, when analyzed, the essential convention of the term refers to the right to exclude others from the resources rather than identifying the resources themselves.

(45) Indeed, the primary purpose of the U.S. Constitution was to protect property. See CHARLES A. BEARD, THE ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES 324 (1935) (“The Constitution was essentially an economic document based upon the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities.”). However, from Beard’s, perspective the Constitution’s Framers were acting to protect their own personal resource holdings, a conclusion rejected by other historians. See generally FORREST MCDONALD, WE THE PEOPLE: THE ECONOMIC ORIGINS OF THE CONSTITUTION (1958). More likely, the Framers simply and deeply believed in the concept of property and its significance for a free society. See Stuart Bruchey, The Impact of Concern for the Security of Property Rights on the Legal System of the Early American Republic, 1980 WISC. L. REV. 1135, 1136 (1980) (“Perhaps the most important value [of the Framers of the Constitution] was their belief in the necessity of securing property rights.”). Specifically, the Framers feared that the states would abridge property by reneging on debts they incurred during the Revolutionary War. According to Alexander Hamilton:

[T]he sacred rights of private property have been too frequently

sported with from a too great facility in admitting exceptions to

the maxims of public faith, and the general rules of property. A

Desire to escape from this evil was a principle cause of the Union

which took place among good men to establish the National

Government.

Id. at 1142.

Referring to specific constitutional clauses that secure private resources from state action, Bruchey observes: “It is not by accident that the constitution prohibits the states from coining money, emitting bills of credit, making anything but gold and silver coin a tender in payment of debt, and passing any law impairing the obligation of contract.” Id, at 1142. The privileges and immunities clause also supports property’s constitutional establishment. BERNARD H. SIEGAN, PROPERTY RIGHTS 2 (2001) (“For although these rights [“property rights”] were not enumerated in the original U.S. Constitution, they formed an essential part of its meaning and spirit. They were secured in Article IV, Section 2, as the ‘Privileges and Immunities of Citizens in the several States,’ a provision which Alexander Hamilton referred to as ‘the basis of the Union.'”). Early Supreme Court opinions, especially those written by Chief Justice Marshall, attributed the contract clause to the constitutional concern over state weakening of the property right. In Sturges v. Crowninshield, Marshall asserted that “the prevailing evil of the times, which produced this [contract] clause in the constitution, was the practice of emitting paper money, of making property which was useless to the creditor a discharge of his debt, and of changing the time of payment by authorizing distant installments.” 17 U.S. 122, 199 (1819)

(46) See RICHARD PIPES, PROPERTY AND FREEDOM 240 (1999) (asserting that “from the Middle Ages on, the sanctity of private property was a fundamental principle of Western Europe’s unwritten constitutions”). For an analysis of the written constitutional property clauses of seventeen nations, see A. J. VAN DER WALT, CONSTITUTIONAL PROPERTY CLAUSES, see A COMPARATIVE ANALYSIS (1999).

(47) See U.S. CONST. amend. V (stating “nor shall private property be taken for public use, without just compensation”).

(48) The Supreme Court has ruled that an exercise of eminent domain under the Takings Clause requires that the owner receive “a full and exact equivalent.” Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893).

(49) U.S. CONST. amend. V (stating “nor shall any person … be deprived of life, liberty, or property, without due process of law”).

(50) For instance, many think that freedom of speech is the most basic constitutional right without appreciating that the exclusionary right of free speech closely resembles the exclusionary right of property and in its genesis, the claim of free speech relied on the older and more established concept of property for its support. For an explanation of how free speech relates to property, see John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. CHI. L. REV. 49 (1996). The more basic concept that one has a property in oneself and thus in one’s speech, faculties, and practices is attributable to James Madison, John Locke, and other seventeenth and eighteenth-century thinkers. See infra note 116

(51) See P.J. Marshall, Parliament and Property Rights in the Late Eighteenth Century British Empire, in EARLY MODERN CONCEPTIONS OF PROPERTY 533 (John Brewer & Susan Staves eds., 1995). (“[V]irtually every grievance identified by the colonists could be defined as either the endangering or the loss of a property right…. At every stage in the controversy to 1776 and beyond, Americans claimed to be defending property rights.”).

(52) REID, supra note 6, at 45 (maintaining that Revolutionary era Americans made “the repeated claim that if, in just the smallest amount, they were taxed without their consent they would have ‘no property’ to call their own”). Voices on the other side of the Atlantic also recognized the justice of this claim. See id. at 45. (quoting John Wilkes, Lord Mayor of London: “If we can tax the Americans without their consent, they have no property, nothing they can call their own.”). Professor Reid asserts that until the nineteenth century the security of property was “the essence of English constitutionalism.” Id. at 35.

(53) See id. at 45 (asserting that “the colonial whig case against parliamentary taxation was the same case that Parliament once made against the prerogative taxation of Charles I”).

(54) Samuel Adams, Massachusetts Circular Letter, quoted in ROBERT ALLEN RUTLAND, THE BIRTH OF THE BILL OF RIGHTS 1776-1791 254 (1991).

(55) REID, supra note 6, at 31. By this statement, Ireton meant that property was of human, rather than divine, creation

(56) As early as 1827, John Quincy Adams called Madison the “father of the Constitution.” Douglas Adair, The Tenth Federalist Revisited, 8 WILLIAM & MARY Q. 48, 51 (3d ser., Jan. 1951).

(57) James Madison, Property, THE NAT’L GAZETTE, Mar. 29, 1792, reprinted in 6 THE WRITINGS OF JAMES MADISON 101 (Gaillard Hunt ed., 1906). Madison’s view of having a property in one’s rights is decidedly Lockean. See, e.g., LEONARD W. LEVY, ORIGINS or THE BILL OF RIGHTS 252 (1999) (“At least four times in his Second Treatise, Locke used the word property to mean all that belongs to a person, especially the rights he wished to preserve.”).

(58) REID, supra note 6, at 104-05.

[E]ighteenth century constitutional theorists who utilized

the [property-in-rights] concept did not think it a fiction.

Rights were incorporeal, but still property. To say they were

owned was no more a legal fiction than to say today that to

sell a copyright is to transfer ownership, or to say that a

chose in action is property.

Id.

A closely related meaning to that of having a property in the rights of speech, religion, or privacy is to have property in one’s personal faculties. Madison’s essay supports both meanings. See supra note 57 and accompanying text (asserting that one has a “property in his rights” and a “property in the free use of his faculties”). A French thinker admired and translated by Thomas Jefferson had a similar broad view of property. See COUNT DESTUTT TRACY, A TREATISE ON POLITICAL ECONOMY 53 (Thomas Jefferson trans., reprint Augustus M. Kelly 1970) (1817) (maintaining that individuals “have each one the inalienable, incommutable, and inevitable property, in their individuality and its faculties”). For a nineteenth-century view that the internal facultative resources as well as the external nonfacultative resources should be considered the object of property, consider the statement of legal scholar/economist John McCulloch:

It must not … be imagined that the security of property

is violated only when a man is not allowed to enjoy or

dispose at pleasure of the fruits of his industry: it is

also violated, and perhaps in a still more unjustifiable

manner, when he is prevented from using the powers given

him by nature, in any way, not injurious to others…. Of

all the species of property a man can possess, the faculties

of his mind and the powers of his body are most particularly

his own

to use or exert, at his discretion.

JOHN R. MCCULLOCH, THE PRINCIPLES OF POLITICAL ECONOMY 28-29 (5th ed., reprinted Augustus M. Kelly 1965) (1864)

(59) Property constituted a political worldview in the era of the Revolution. See REID, supra note 6, at 40 (“The concept of property and security of property were civil rights that encompassed a view of the world that defined for eighteenth-century English-speaking people the meaning of law, liberty, and constitutional government.”). In one sense, property was “the source of liberty” because it secured the resources necessary for the individual to have autonomy from the state. JOHN PHILLIP REID, THE CONCEPT OF LIBERTY IN THE AGE OF THE AMERICAN REVOLUTION 72 (1988). In another sense, liberty was “inherited or purchased property” of the English and the American colonists so that “[t]he defense of property meant the defense of liberty, not merely the preservation of material possessions.” Id, at 25.

(60) See supra note 57 and accompanying text. It would certainly be a mistake to believe that Madison’s view about the connection of property and liberty was isolated or unrepresentative in the early constitutional era. E.g., 6 THE WORKS Or JOHN ADAMS 280 (“Property must be secured, or liberty cannot exist.”)

(61) For example, when British printers asserted that they enjoyed a freedom of speech that was secure against the king’s licensing censors, they claimed that the Crown was interfering with the property right to their printing presses. See McGinnis, supra note 50, at 60-61. For American colonial examples illustrating that “the right to property was considered more important and was accorded priority over the right to personal liberty,” see REID, supra note 6, at 29.

(62) For example, property at one time did not apply to the invention of new devices nor to the copying of musical and literary works. Now, it does. However, this does not mean that the definition of property has changed or becomes less knowable

(63) According to Blackstone, the common law recognized three “absolute” rights “inherent in every Englishman.” II BLACKSTONE’S COMMENTARIES (St. George Tucker ed., 1969) (1803). The first was “personal security,” which “consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation.” Id. at 129. The second was “personal liberty,” which “consists in the power of loco-motion, of changing situation, of moving one’s person to whatsoever place one’s own inclination may direct

(64) For example, Madison presumes in his property essay that people form government to protect “particular” resources like land while believing that he has to argue by association that government must protect “the rights of individuals,” the bridge being the term “property”: “Government is instituted to protect property of every sort

(65) Taxation is necessary so the state can implement, enforce, and defend the property system–including the repayment of governmental debts–and provide an infrastructure for the generation of limited resources. See Jean Jacques Rousseau, A Discourse on Political Economy, in GREAT BOOKS OF THE WESTERN WORLD 380 (Robert Maynard Hutchins ed., 1952) (1755) (“It should be remembered that the foundation of the social compact is property

(66) Charles I was deposed and beheaded for engaging in taxation without consent of the people through parliamentary act. His taxation without representation violated the Magna Carta and subsequent statutes of Parliament, amounting to arbitrary confiscation and denying due process of law. As loyal British subjects, the American colonists believed that the Britsh government similarly abridged their property right when the government taxed them without their consent. See generally JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: ThE AUTHORITY TO TAX 373 n.37, (1987) (quoting a 1753 resolution of the Virginia Burgesses: “The Rights of the Subjects are so secured by Law, that they cannot be deprived of the least Part of their Property, but by their own consent….”) Id. at 144-45 (quoting a 1765 resolution of the New York Assembly: “Resolved, … that the imposing and levying of any monies upon her Majesty’s subjects of this colony, under any pretense or colour whatever, without consent in General Assembly, is a grievance and violation of the people’s property.”).

(67) An alternative might be a head tax, a tax on facultative resources, payable pro rata without reference to the nonfacultative resources that effort, talent, luck, or birth generate. As collection of a head tax presents a difficulty of payment–namely, that the poor will not be able to afford it–not present with the traditional taxes on nonfacultative resources like income, real estate, and various “personal property,” the taxation on nonfacultative resources seems preferable to that of a head tax once a recognition of resource ownership is in place. Cf. ROSENBERG & BIRDZELL, supra note 24, at 113 (asserting in a discussion of economically valued [nonfacultative] resources that “the change of governmental revenue systems from discretionary expropriation to systematic taxation” was “a change closely linked to the development of the institution of private property”).

(68) By the same token, speech related to the private market and its resource exchanges may be as constitutionally important as political discussion. Cf. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976) (“As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”). It also stands to reason that if the primary purpose for the existence of the state concerns the system by which it handles limited resources–and the system relies on the property right–that the property right at a minimum would be as important to the citizenry as speech about resources.

(69) U.S. CONST. amend. V. (stating “nor shall private property be taken for public use, without just compensation”). Actually, in an important analogous sense, the state can “take” speech from individuals, the test being whether or not the government has a “compelling state interest” in doing so. See, e.g., Carey v. Brown, 447 U.S. 455, 461-62 (1980) (stating that the government may regulate content-based speech, but is subject to “strict scrutiny” and must be “necessary to serve a compelling state interest”). In further analogy, just as an incidental regulation of one’s propertied resource is not a “taking,” so too an incidental state restriction on one’s speech does not “abridge” it. See, e.g., United States v. O’Brien, 391 U.S. 367, 376 (1968) (“[A] sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”).

(70) U.S. CONST. amend. V. Although the Constitution itself does not establish the requirement of just compensation for state deprivation of facultative resources, Congress in a significantly related way has. Section 1983 of the Civil Rights Act of 1871 creates tort liability for public officials or public employees who deprive a person of any constitutionally guaranteed rights, including the facultative ones:

Every person who, under color of any statute, [or] ordinance …

of any State …, subjects, or causes to be subjected, any

citizen of the United States … to the deprivation of

any rights, privileges, or immunities secured by the Constitution

and laws shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding in redress.

42 U.S.C. [section] 1983 (2000). Legal scholars are used to thinking of just compensation as rather different from damages in tort, but a student, diplomat, or nationbuilder from a property-weak country trying to grasp the distinction between the two may be left with little significant sense of practical difference.

(71) Madison, supra note 57, at 101.

(72) E.g., ADOLPH A. BERLE JR., POWER WITHOUT PROPERTY 60 (1959) (“Property is in essence relationship between an individual … and a tangible or intangible thing.”)

(73) See ROGER A. CUNNINGHAM ET AL., THE LAW OF PROPERTY 3 (2d ed. 1993) (“‘[P]roperty’ is comprised of legal relations between persons with respect to ‘things.'”)

(74) See Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964) (“The institution called property guards the troubled boundary between individual man and the state.”).

(75) THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 327 (Alexis C. Angell ed., Weisman Publications 2d ed. 1998) (1891). It is, of course, arguable that the right to exclude others from certain resources is a moral right, but “property” in the jurisprudence of the modern era is the legalization of that moral right. Law creates property.

(76) In other words, “property” is a defined term, but the specific resources to which we apply property have an historical content.

(77) Cf. JAMES MILL, ESSAYS ON GOVERNMENT, JURISPRUDENCE, LIBERTY OF THE PRESS, AND LAW OF NATIONS 9 (Augustus M. Kelley ed., 1967) (1825) (“That one human being will desire to render the person and property of another subservient to his pleasures, notwithstanding the pain or loss of pleasure which it may occasion that other individual, is the foundation of Government.”).

(78) Cf. Cohen, supra note 35, at 386 (“Taking mutton out of the jaws of hungry fellow wolves might be a difficult and dangerous operation.”).

(79) See O. Lee Reed, Law, the Rule of Law, and Property: A Foundation for the Private Market and Business Study, 38 AM. Bus. L.J. 441, 447-50 (2001).

(80) See id. at 450-51. In a strict sense, the institution of property is not advantageous merely to large heterogeneous societies, and even relatively small tribal groups employ it. For example, “Thou shalt not steal,” which is prominent in the biblical Ten Commandments of the ancient tribes of Israel, implies the establishment and recognition of property in those things, the taking of which would be stealing.

(81) See infra notes 84-110. For an interesting economic view of the state’s protection of the property right as a type of “product,” see Frederic C. Lane, The Role of Governments in Economic Growth in Early Modern Times, 35 J. ECON. HIST. 8, 9 (1975).

(82) See, e.g., Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 733 (1998) (“[T]here is … a consensus that property cannot exist without some institutional structure that stands ready to enforce it.”). In English law, the development of the centralized property enforcement process began at least as early as the twelfth century:

[T]he development of a central system of royal justice from

which the modern English legal system directly developed,

occurred … in 1166, for it was in that year that a ‘decree

went forth which gave to every man dispossessed of his freehold

a remedy to be sought in a royal court, a French-speaking court.

STEIN & SHAND, supra note 20, at 207. By the eighteenth century, Blackstone was writing of English law’s enforcement of property: “Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein.” II BLACKSTONE’S COMMENTARIES, supra note 63, at 141.

(83) See Reed, supra note 79, at 466-72 & nn.61-65.

(84) For example, Hobbes asserted: “[T]he Propriety which a subject hath in his lands, consisteth in a right to exclude all other subjects from the use of them….” THOMAS HOBBES, LEVIATHAN 297 (C. B. Macpherson ed., Penguin Classics 1985) (1651). Blackstone defined property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” IV BLACKSTONES COMMENTARIES, supra note 63. In Blackstone’s era, the Lord Mayor of London also wrote: “The very idea of property excludes the right of another’s taking any thing from me without my consent, otherwise I cannot call it my own.” REID, supra note 6, at 45. In France at this time, a civil law thinker asserted: “[O]ur idea of property is private and exclusive: it imports the idea that the thing possessed appertains to a sensible being, and appertains to none but him, to the exclusion of all others.” TRACY, supra note 58, at unpaginated preface.

Today the essential convention of property is still that it is a right to exclude others, including the government except under limited circumstances, from a resource. Although the application of the right to particular resources over the years has strengthened or weakened somewhat–strengthening, for example, through patent and copyright laws, and weakening through zoning regulations and redistributive taxation–the meaning of property as the right to exclude others has remained unchanged. See generally Merrill, supra note 82, at 730 (“Give someone the right to exclude others from valued resources, i.e., a resource that is scarce relative to human demand for it, and you give them property. Deny someone the exclusion right and they do not have property.”)

The eminent sociologist Emile Durkheim sought a cross-cultural criterion for the recognition of property and settled upon exclusion. See EMILE DURKHEIM, PROFESSIONAL ETHICS AND CIVIC MORALS 142 (Cornelia Brookfeld trans., 1958) (“[T]he right of property is the right of a given individual to exclude other individual and collective entities from the usage of a given thing. The sole exception is the State … whose right of usage can, however, not be exercised except in special circumstances, provided for by law.”).

(85) In a strict sense, an owner excludes others not only from the physical soil of the land but from an almost infinite set of resources in the land, resources that the owner can sell, lease, or gift to others in various subdivisions, making it perfectly possible to have more than one individual owner in the various resources of the “same” land. Actually, in such a situation the original owner simply has fewer resources within the describable boundaries of the land than before he sold, leased, or gifted the resources, and the new owner has more.

(86) College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999)

(87) Merrill, supra note 82, at 740 (“[I]f one starts with the right to exclude, it is possible to derive most of the other attributes commonly associated with property through the addition of relatively minor clarifications about the domain of the exclusion right.”)

One scholar recently published a vigorous disagreement with the exclusion thesis. See Adam Mossoff, What is Property? Putting the Pieces Back Together, 45 ARIZ. L. REV. 371 (2003). Professor Mossoff maintains that exclusion is merely “the formal means by which Anglo-American legal rules identify and protect the substantive core of rights that constitute property,” which he identifies as “the rights of acquisition, use, and disposal.” Id. at 396. Ultimately, his modified-bundle theory is unpersuasive, although publication constraints do not permit the lengthy rebuttal that his thoughtful arguments deserve.

(88) In particular, observers associate Marx with this view. See STEIN & SHAND, supra note 20, at 215.

Marx’s argument was directed especially at the fact that under capitalism it is not the maker of the product but others who are entitled to it. He thus echoed the doctrine of the natural lawyers, such as Locke, that a man should have no right of property that is not the fruit of his labour.

Id.

(89) Cf. id. at 212 (“According to Sydney Smith, Mr. Justice Best in the early nineteenth century considered spring guns ‘lawfully applicable to the protection of every species of property against unlawful trespassers’.”). Justice Best later denied having maintained this view. Id. at 217. And, today, the law usually prohibits one from injuring another merely because that person is a trespasser or has even taken one’s nonfacultative resources.

(90) See, e.g., BETHELL, supra note 10, at 248-56. Observers termed “torturously high” rents as “rack” rents in reference to the torture device. Id. at 251.

(91) Note that in the preceding text paragraph the examples given that suggest property permits unconscionable human abuse are quite specific, whereas the support for property proffered in this paragraph is of the “general welfare” or “common good” variety. This dichotomy between specific and general effects often shows up practice in those who reject or embrace a strong property system. See, e.g., ARTHUR TWINING HADLEY, ECONOMICS 17 (1877):

The difference between individualists [who support the exclusive nature of property] and socialists [who oppose this exclusivity
in resources] is largely a matter of temperament. It comes from adifference in constitution which leads the individualist to calculatethe large and remote consequences of any measure and ignore the immediate details, while the socialist feels the immediate details so strongly that he distrusts the somewhat abstract lines of thoughtwhich the individualist is prone to follow.

Id.

The fact is that a strong property system may stimulate society to the greatest potential for the generation of maximum resources but at the same time allow specific individuals (and those dependent on them) to fail in securing resources adequate to their support.

(92) See supra note 24.

(93) See supra notes 57-60 and accompanying text. Compare the definition of property in the Austrian Civil Code, quoted in ELY, supra note 73, at 105: “[P]roperty is the liberty to do with the substance and uses of a thing according to one’s wants and desires and to exclude every other person therefrom.”

(94) In this sense, property is a negative exclusionary right in the same way that freedom of speech is.

(95) In other words, the rules that implement the right to exclude are not in themselves “property.”

(96) This assertion is not completely correct. For example, under the homesteading laws, Congress gave specific resources–the uses of land–to private persons. Homestead Act of 1891, ch. 561, sec. 161, 26 Star. 1097 (repealed 1976). However, because these public holdings entered the private realm of property, they have remained private, and it is generally accurate to claim that through “property” implementation and enforcement the government does not positively grant resources. Instead, facultative human efforts and imagination that is also called “labor,” generate resources.

(97) Conceive property as a metaphorical blanket that protectively covers the limited resources that people need or want. Underneath the blanket, persons possess, use, trade, gift, and, significantly, create and produce new resources. Covered by that blanket, some persons acquire, create, and produce more resources than others, and as long as they do so without coercion, theft, or deception, the state protects them, allowing them to exclude both others and the state itself from these resources. Understanding property as a protective exclusionary blanket emphasizes that it is a right equally covering everyone and prevents the cardinal confusion of property itself with the resources that property protects.

(98) For example, although Blackstone referred to property as a right of “absolute dominion,” he did not mean that there could be no limits imposed on private resources. Rather, he describes property as consisting of one’s “free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” II BLACKSTONE’S COMMENTARIES, supra note 63, at 137 (emphasis added). In his view of property as “absolute dominion,” Blackstone was likely reflecting on the Magna Carta right that certain the government could not take resources from him (especially by the monarch) except through “due process,” or rather according to the “laws of the land” that were sovereign even over the monarch. Other laws of the land could also limit the legal right of property. See the famous opinion of Lord Chancellor Charles Pratt in Entick v. Carrington, 19 Howells St. Trials 1029, 1066 (1765) (“The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.” (emphasis added)). Cf. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 87 (1921) (“Property, like liberty, though immune under the Constitution from destruction, is not immune from regulation essential for the common good.”). These statements recognize that property has no meaning outside of society because the right to exclude implies a society of others to excluded. The limitations on property suggested by phrases like “the common good” or “the good of the whole” do not, however, suggest redistribution regulation, which defeats property’s purpose of generating prosperity and freedom. Instead, the limitations are those necessary to protect the equal property right of others to their resources (nuisance regulation for example) and for taxation to support the broad property system.

(99) The Constitutional Framers agreed that the meaning of property implies that the equal right of others limits a person’s property right. See, e.g., Madison, supra note 57 (asserting that in property’s “larger and juster meaning, it embraces everything to which a man may attach a value and have a right and which leaves to everyone else a like advantage”)

(100) The American Constitutional Framers probably held this view of a strong property regime, but it dates back to at least 1603. See SCHLATTER, supra note 5, at 110 (paraphrasing the Politica Methodice Digesta of Johannes Althusius, “perhaps the greatest of Calvinist political theorists,” that “the ruler is not the owner, but the defender of his subjects’ goods, and he may take in taxes only the sum required to provide for the public necessities”).

(101) In other words, the more the state forces individuals to share their resources with the community, the less comprehensively the exclusive right of property applies to the various resources in society, but the meaning of “property” does not change. It remains the right to exclude others from specifiable private resources. In emotional content, “property” is a powerful word, and it may be understandable from a political standpoint that those who support resource redistribution have attempted to ally the word with their favored redistributions. Thus, Charles Reich advocated making welfare transfers into “property.” See Reich, supra note 74. Whether or not these redistributions of resources would advance justice or promote the common good is debatable, but it hardly serves the purposes of adequate definition to call them “property,” certainly not in considering the essential core content of the word.

(102) Those who reject the “commodification” of certain resources those who oppose the selling and buying of particular aspects of one’s body or one’s work as dehumanizing objectifications of life–are not rejecting the definition of property, only property’s application to specific resources. For anticommodification views, see DAVID P. ELLERMAN, PROPERTY AND CONTRACT IN ECONOMICS (1992) (comparing the employee status to slavery and arguing that human actions should not be transferable like the services of things)

(103) See JOHN MCDERMOTT, CORPORATE SOCIETY:. CLASS, PROPERTY, AND CONTEMPORARY CAPITALISM 75, 78-79 (1991):

[N]o individual holds those [property] rights nor can their ownership be ultimately traced to any family or families. They are exercised by a collectivity, top management, which to all intents and purposes exercises the classic rights of property over those relationships…. Collective property forms [as exist in modern corporations] are not really reducible to private property. In other words, by analyzing backward from owned property through the owning relationships we do not ventually find individuals exercising individual property

rights as the ultimate basis for the whole structure.”

Id. McDermott’s view of corporate holding of resources as changing the nature of property due to managerial control has a long lineage. See, e.g., ADOLF A. BERLE JR. & GARDNER C. MEANS, THE MODERN CORPORATION AND PRIVATE PROPERTY 6-7 (1933) (asserting that “the quasi-public corporation may fairly be said to work a revolution. It has destroyed the unity that we commonly call property–has divided ownership into nominal ownership and the power formerly joined to it.”).

McDermott does not think that the legal duty owed by top management to please the shareholders at the risk of losing their jobs keeps top management from effectively owning the resources of the corporation. McDERMOTT, supra note 103, at 87. He believes that the essence of property is power and that because management of large corporate resources gives managers a powerful influence over employees, managers have the effective property in the corporation. The analogous Marxist expression of this view considers employees so influenced to be “wage slaves,” themselves the objects of the power that is property. On the other hand, the property-as-exclusionary-right analysis observes that agent-managers had better please the shareholders or get fired (be excluded from the salaries, stock options, and other amenities of their jobs). McDermott responds that “[t]he idea that the stockholders control the business has long since been dropped by most knowledgeable observers.” Id. The reader should take notice that stockholder-controlled boards of directors annually fire numerous top managers of the nation’s largest companies. Cf. Keith Naughton, The CEO Party is Over, NEWSWEEK, Dec. 30, 2002, at 55 (“There will be more CEO firings this year as previously passive corporate boards get tough with the boss predict … corporate governance experts.”). The abuse of shareholder resources by the managers of Enron, Worldcom, and others simply shows the need to strengthen the property shareholders have in these resources.

(104) From the perspective of a strong property system–one in which all persons have a well-enforced exclusionary right in both facultative and nonfacultative resources–in an instance when workers feel abused by organized corporate investors or their agents, their obvious response should be to quit or to organize the resources in which they have property–themselves, into a powerful organized counterpoint to the corporation, that is, the union. In a strong property system, both investors and employees can organize their resources, and if employees choose not to do so, the most reasonable assumption is that they accept as satisfactory their property relations with the corporation, the socialist protestation of “false consciousness” notwithstanding.

(105) Cf. PIPES, supra note 46, at 235.

The modern holder of one hundred shares in a billion-dollar corporation is part owner of that corporation, even if to an infinitesimal degree, because he can at a moment’s notice sell the shares on the open market. The notion that ownership requires personal management is as erroneous as would be the notion that democracy demands of each citizen personally to participate in legislation.. ..

Id.

(106) However with physical things that flow freely, resource boundaries can be difficult to establish, and the right to exclude may not exist. Thus, oxygen in the atmosphere is generally not subject to the property right, whereas oxygen in a bottle for scuba diving or use as a propellant in an aerosol can is subject to property. Property rules relating to accretion and confusion also illustrate ways of setting boundaries for establishing ownership regarding fluid or amorphous resources. For a different view of the necessity for resource boundaries, see Michael A. Heller, The Boundaries of Private Property, 108 YALE L.J. 1163, 1165 (1999) (“Hidden within the law … is a boundary principle that limits the right to subdivide private property into wasteful fragments.”).

(107) See PAUL GOLDSTEIN, COPYRIGHT, PATENT, TRADEMARK & RELATED STATE DOCTRINES 124-25 (4th ed. 1997).

(108) See id. at 244-48.

(109) Cf. BECKER, supra note 34, at 7 (“Indeed, many writers on property … begin with remarks to the effect that, were it not for scarcity, there would be no need for the institution of ownership.”). Becker also asserts that “exhaustibility” plays “a very large consideration in specific justifications” for instituting property in a resource. Id. at 109

(110) see LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A CONNECTED WORLD 218-33 (2001).

(111) See supra note 99.

(112) E.g., MILL, supra note 19, at 370 (“According to the fundamental idea of property, indeed, nothing ought to be treated as such, which has been acquired by force or fraud, or appropriation in ignorance of a prior tide vested in some other person….”). When a property system seems to permit such wrongful acquisition, it is not due to the concept of property but to an imperfect or corrupt enforcement of it.

(113) E.g., HENRY R. CHEESEMAN, CONTEMPORARY BUSINESS LAW 844-47 (3d ed. 2000). When disputes arise concerning the chronology of ownership, the doctrines of prescription and adverse possession also assist in identifying who has properly acquired resources and may legally exclude others. See id. at 871,874.

(114) In other words, the definition of property need not specify which of an apparently limitless set of resources property will protect. To insist that it do so is just another manifestation of the confusion of “property” with “resources,” or “thingness.” Instead, the issue is how property applies to various resources, the issue historically involving whether it is more desirable for individuals to be as equal as possible in the nonfacultative resources available to them or for society generally to be as prosperous as possible in terms of such resources.

(115) Thomas Hobbes claimed: “Of things held in propriety, those that are dearest to a man are his own life, & limbs…. ” HOBBES, supra note 84, at 382-83. John Locke wrote of being a “proprietor of his own person.” LOCKE, supra note 11, at 27

(116) Madison, supra note 57, at 101.

(117) IV BLACKSTONES COMMENTARIES, supra note 63, at 1.

O. Lee Reed, Professor of Legal Studies, Terry College of Business, University of Georgia.