WEEK 1 Intro to land law

Define property?

‘Property’ may be used to refer to any system of rules governing people’s access to and their use and control of things, whether tangible or intangible, natural or manufactured.’ Jeremy Waldron, ‘Property Law’

When we talk about property on this module, we generally mean a system of rules which governs how people can access and control the use of things (cars, bicycles, but – for us – especially land).

Why do we have property rules?

Property rules exist to solve the problem of resource scarcity

Property rules are needed for any class of things about which there are likely to be conflicts concerning access, use and control, particularly things which are scarce relative to the demands that human desires are likely to place upon them.’ Jeremy Waldron, ‘Property Law’

Where resources are abundant, we don’t need to worry about how to allocate those resources: everyone has equal and ready access to them. Where resources are scarce, we need to consider how to enable planning, co-operation, production and exchange in relation to them without resorting to ‘black markets’ where nothing can be counted upon. The availability of resources is important to our livelihood, enjoyment and even, some argue, the development of our personalities.

Property is therefore not simply about our relationships with things, but about our relationships with each otherin relation to things. Property rights exist to solve a social difficulty – a difficult question of how we should relate to each other. And this is true of rights in general: rights are always against other people. They don’t exist in a vacuum; they are inherently about you and me.

Thus, when we’re discussing what property rules should look like, we’re really discussing how we ought to relate to one another (in relation to things) – and of course, we may take quite different views on this (both between each other and depending on the kind of thing we have in mind).

What kind of property rules do we have? 

Common property

Property rules serve to make resources available for use by all/any members of society. The purpose of the rules is to secure fair access for all and to prevent some from using the resources in a way which would preclude their use/access by others (e.g. public parks, streets, village greens).

Collective property

A society decides together, through its collective decision-making institutions, how to use its resources to further the social interest (socialism). E.g. military bases, socialist state property.

Private property

The decision about how to use/access contested resources is left to individuals who need act in no one’s interest but their own, notwithstanding that their decisions will affect others and will be given state force (e.g. bicycles, toothbrushes).

Textbook quotes in relation to property rules and why we have them

‘Common property is created by the guarantee to each individual that he will not be excluded from the use or benefit of something; private property is created by the guarantee that an individual can exclude others from the use or benefit of something. Both kinds of property, being guarantees to individual persons, are individual rights.’C.B. Macpherson, ‘The Meaning of Property’

Private property involves a pledge by society that it will continue to use its moral and physical authority to uphold the rights of owners, even against those who have no employment, no food to eat, no home to go to, no land to stand on from which they are not at any time liable to be evicted. That legal authority and social force are held hostage in this way to an arbitrarily determined distribution of individual control over land and other resources is sufficient to raise a presumption against private property.’Jeremy Waldron, ‘Property Law’

Problems which private property can solve

1. The ‘tragedy of the commons’ (a problem of common property solved by responsibility and self-restraint in resource use).

2. Decision-making about resource allocation is hopelessly complex if it is to be resolved by a central institution.

3. Private property allows people to make real their plans and schemes, and so to be more than just passive beneficiaries of the state.

4. Idleness.