Property Outline Spring 2008

PHILOSPHICAL UNDERPINNINGS

I. Two Treatises of Government, Locke – Labor Theory of Value

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Private property exists because of labor - Not only do you own land b/c you work it,but if people own land individually it will work out better for society, b/c ppl willimprove land they own.

Is the ownership of land by individuals justified as opposedthe ownership of all land by all mankind.

II. Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, Hohfeld

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Hohfeld's analysis began by distinguishing right (or claim) from liberty (or privilege),power and immunity, and defined them through three corelatives, i.e. duty, liability,and disability. He arranged these fundamental legal concepts in terms of JuralOpposites and Jural Corelatives.III.

What Is Property , Halper

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Property right - the right to use or to decide who uses it; this power is not absolute

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Limited by zoning laws, taxes, nuisance, police power

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Is it really property if someone else can tell you how to use it? Yes.

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State will define, to a degree, how you can use your property. But, theycan't go so far as to make the use totally impractical as to make nouse.

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Gov't cant limit your property to such a degree that you cant use it, butit can take it away as long as it justly compensates you

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Foundations of property associated with agriculture. Better individuallyowned, because you'll pay better attention to it; take better care if its yourown.

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Cant keep all income derived from property - property is taxed

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State say who owns what, but not entirely.

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Part of the reason why property rights exist and are enforceable is not onlybecause the state says so, but also because most ppl respect them. Musthave custom and popular approval.

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Ownership is not a single right, but a bundle of rights of which the importantattributes are the right to use, the right to exclude others, and the right to exploitthe income potential of the property (all of which are limited). You share theproperty with the state, and to a degree with the rest of the community.IV.

Toward a Theory of Property Rights, Demsetz

(Duk 35-45)

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Gets to concept of property by virtue of value.

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Native Americans around Quebec - they hunt for food, and gather. They don’tcare about who owns what. Then Europeans come over and want animal fur. Then they start killing animals and start selling to Europeans. Then, riches of the forest gain a value, and becomesimportant because they can get morethan their food from it, and it becomes property. This is how property starts.Property is derived from the fact that it has value (may have very limitedapplication)

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Demsetz tells us: an owner of property gains his rights by virtue of communalconsent. Halper doesn’t totally agree with this, but partially true only. Halper sayswe need both state and community consent.

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Community - now can be whole world (communication & technology); in thepast only small area due to lack of communication over large distances - theywere isolated. The idea of community is broader, and the idea of the consentof the community is also much broader.

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Property rights arise from negotiation and agreement. Halper disagrees.Europeans didn’t negotiate with natives in the Americas, they take over theland through violence.

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Private property v. public property (halper)

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If you have individual responsibility for something, you will probably do it, if you will be punished for not doing it, or rewarded for doing it.

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Communal property is not good; creates externalities

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Less efficient to have communal ownership, and more efficient to haveindividual ownershipV.

Summa Theologica , Thomas Aquinas

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The attributes of property - 2 principle attributes;

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You will tend to take care of private property if you think it’s yours; wherethere is a communal property, each individual would shirk his responsibilities.

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The desirability of private property - a more peaceful state happens if everyone is content with his own. Quarrels arise more frequently where thereis no division of the things possessed.

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Aquinas derives his view directly from scripture - so to abuse your property, Aquinaswould say would be sinful. b/c God gives earth to all, and you shouldn’t abuse(Aquinas' view)

VI. Utilitarian Theory

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Private property is said to nourish individuality and healthy diversity: It "performsthe function of maintaining independence, dignity and pluralism in society bycreating within which the majority has to yield to the owner. Whim, caprice,irrationality and 'antisocial' activities are given the protection of the law." Importantfunction of property rights is to promote economic efficiency.

VII. What is Property, Proudhon

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Property is theft! Proudhon is an anarchist; believes structure of govt bad.

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He doesn’t like the idea of property

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He says your allowed to use stuff, but not gain from its use because of lawthat doesn’t allow it.

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He refutes the natural rights theory;

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Cicero - Roman lawyer talks about property. You go to the theatre, and there are lotsof open chairs. Empty chairs are communal property and you can move into them. You might individually buy a seat, but the seats not used are communal property.

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Proudhon criticizes this - he says if he buys a seat, his communal rights arelimited to that seat. He cannot allow himself to overstep to other seats.Rights of the community vastly outweigh rights of the individualVIII.

The Right to Include, the Right to Exclude

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Notion of property as a relationship among people that entitles so-called owners to

include

(permit) or

exclude

(deny) use or possession of the owned property by otherpeople.

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Both rights (to include and exclude) are necessary and sufficient conditions of transferability.

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Jacque v. Steenberg Homes, Inc

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Facts : Pl denied Df permission to cross over his lands to deliver a trailer. Df crossed anyway.

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Rule : Every person has a constitutional right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another.

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Rule : The private landowner’s right to exclude others from his or her land isone of the most essential rights of property.

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State v. Shack

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Fact : Pl denied Df (govt workers) access to his land to render services tofarmworkers.

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P had the right to keep his work free from interference, but he had no right toisolate his farm workers from the outside world.

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Right to exclude is not absolute.

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Non-owners have a right of access to property based on need or onsome other important public policy

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Property rights limited to avoid injustice

IX. Acquisition by Discovery

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Who is first in point of time is stronger in right. -

Maxim of Roman Law

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Johnson v. M'Intosh

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Facts : Indian tribe wants to sell some of its property (land). Sells land to x. Then state sells the same land to y.

HISTORY – WILLIAM I

I.Both Romans & Celts had influence in England:

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Celts owned property in common, and tribes had leaders. Romans come and institute asystem of private property ownership. In the clash btwn the 2, private property wins,and the leaders end up privately owning the property. So now England is a mixture of Celtic and Roman ideas of ownership.

II. Beginnings of Modern property rights during the Anglo-Saxon period

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Next come the Anglo-Saxons and the Jutes (Germanic tribes mostly) - they invadeEngland, and take a lot of it over. Germanic tribes tend to own property in common, butnot completely (like condo – you have to own something individually to have access tocommunal property).

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Then Vikings come - they pillage and steal at that time (that’s how the culture was).Some were Danes, and some Norwegians.

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Alfred the Great (King of Wessex) – victorious over the Danes. Alfred doesn’t kill all theDanes, and told them they could live under their own law.

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So all living in peace until descendants of Alfred (about 100 years later) start killingDanes. Danes from Denmark (Sweyn and son Canute) come to England to defend theDanes. Victorious over West Saxons, and Canuteaccepted as king of England.

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Ethelred actually has claim to throne,but he dies, and Canute marries Ethelred'swidow. But Ethelred'ssons are still alive and want to fight Canute.

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Ethelred's sons: Edward the Confessor and Alfred Atheling. Edward theConfessor (grows up in Normandy - Frenchman)

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Canute (King of England, Denmark and Normandy) dies. But before he dies, he dividesEngland in 3 parts, Earldoms. When Canute dies, many rivals for his throne. Many of them die.

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Ultimately, Edward the Confessor becomes King and reigns for a while, but not sointerested in being King, he is very religious.

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Godwin gains a lot of influence over Edward. Godwin becomes so powerful, he beginsto challenge Edward. Edward then turns to Normandy military (William I) for help &they are victorious over Godwin. Since Edward has no sons, he promises throne toWilliam.

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Godwin very powerful, and when Edward dies, Godwin's son Harold becomesKing of England.

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William in Normandy with big army ready to invade England. Norwegians also ready toattack England.

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Norwegians land in England (east) and Harold goes to fight them. Haroldvictorious over Norwegians, who sail away and don’t come back.

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Normans (led by William) land in south of England. Harold goes to South andmeet Normans at Hastings. Battle of Hastings changes the history of the world.