Module III- Property &

Related Theories : Part

One
 Introduction
As discussed by Salmond earlier that property is the one of
the essential elements for human survival.

Property is a general term for rules governing access to and

control of land and other material resources. It is a relation
between person and a thing.

Different philosophers have different hypothesis regarding

the origin of property. Some thinkers relate it with freedom-
dignity, other associate it with inequality etc.

Rousseau’s Origin of Private Property & Rise of Inequality:

Man thought that land could be used as property and so he
took a piece of land and established ownership
Adam Smith- Wherever there is great property there is great inequality
… Civil government, so far as it is instituted for the security of
property, is in reality instituted for the defence of the rich against the
poor. (Wealth of Nations).

Different approaches: consequentialist approach & Categorical

Imperative; Conservative & Liberal

Conservatism-liberal conservatism: Conservatives relate concept of

property with freedom. They argue that more widespread the
possession of private property, the more stable and productive is a state
of nation.

Separate property from private possession, and Leviathan become

master of all…Upon the foundation of private property, great
civilizations are built... The conservative acknowledges that the
possession of property fixes certain duties upon the possessor; & he
accepts those moral and legal obligations cheerfully.

Russell Kirk- The Politics of Prudence

Liberalism- : Property is essential for men. The reason that
why men entre into society is the preservation of their property.
[Locke, Second Treatise on Civil Government]

Life, liberty, and property do not exist because men have made
laws. On the contrary, it was the fact that life, liberty, and
property existed beforehand that caused men to make laws in
the first place. [Federic Bastiat, The Law]

Robert Nozick- Theory of Property

Generally one can classify property into three types: Common;

Collective; Private Property.

In common- resources are governed by rules whose point is to

make them available for use by all; e.g. common land for
grazing cattle
Collective- members collectively determines that how
important resources to be used. Collective-decision making.

In Private property, the rules are organized around the idea that
individual have the right to decide.

Main focus of this module is Private property. Almost all

popular philosophers have discussed property in their writings.
They tried relating it with virtue, freedom, reason and self.

The ancient authors speculated about the relation between

property and virtue, they justify the private property. But at the
same time their was critical observations by others. Plato argued
that collective ownership was necessary to promote common
pursuit of the common interest, and to avoid the social
divisiveness.  
Aristotle responded by arguing that private ownership promotes
virtues like prudence and responsibility: When everyone has a
distinct interest, men will not complain of one another, and they
will make more progress, because every one will be attending
to his own business. He even argue that altruism be better
promoted and practiced. [Politics]

Aristotle also reflected on the relation between property and

freedom, and the contribution that ownership makes to a
person's being a free man and thus suitable for citizenship.

In the medieval period, Thomas Aquinas continued discussion

of the Aristotlean idea that virtue might be expressed in the use
that one makes of one's property. Not only do the rich have
moral obligations to act generously, but the poor also have
rights against the rich.
In the early modern period, philosophers turned their
attention to the way in which property might have
been instituted, with Hobbes arguing that there is no
natural ‘mine’ or ‘thine,’ and that property must be
understood as the creation of the sovereign state
Locke-Though the Earth…be common to all Men, yet
every Man has a Property in his own Person. This no
Body has any Right to but himself. The Labour of his
Body, and the Work of his Hands, we may say, are
properly his. Whatsoever then he removes out of the
State that Nature hath provided, and left it in, he hath
mixed his Labour with, and joined to it something
that is his own, and thereby makes it his Property.
Kant began by emphasizing a general connection between
property and agency, maintaining that there would be an affront
to agency and thus to human personality.

Hegel's account of property centers on the contribution property

makes to the development of the self, ‘superseding and
replacing the subjective phase of personality and giving some
sort of external reality to what would otherwise be the mere idea
of individual freedom. 

John Rawls is of the opinion that questions about property

should be discussed in pragmatic way then issues in political
philosophy. John Rawls counsels us to talk about justice rather
than property, in fact issues about property are inevitably
implicated in some of the issues about justice that have
preoccupied political philosophers in recent years. He himself
talked about distributive theory of justice.
Acc. to David Hume Our property is nothing but
those goods, whose constant possession is
established by the laws of society; that is, by the
laws of justice. Those, therefore, who make use of
the words property, or right, or obligation, before
they have explained the origin of justice, or even
make use of them in that explication, are guilty of a
very gross fallacy, and can never reason upon any
solid foundation. A man's property is some object
related to him. This relation is not natural, but
moral, and founded on justice.
Genealogies of Property: long chain of interpretation.
Locke-Nozick-Kant-Hume
Justification : people in general are better off when a given
class of resources is governed by a private property regime
than by any alternative system. Under private property, it is
said, the resources will be more wisely used, or used to
satisfy a wider set of wants than under any alternative
system, so that the overall enjoyment that humans derive
from a given stock of resources will be increased.
The most persuasive argument of this kind is sometimes
referred to as ‘the tragedy of the commons’. If everyone is
entitled to use a given piece of land, then no one has an
incentive to see that crops are planted or that the land is not
over-used.
English Economist William Forster Lloyd published a
pamphlet, 1833 (tragedy of commons)
Conclusion: Arguments of this sort are familiar and
important, they need to be treated with caution. In
most private property systems, there are some
individuals who own little or nothing, and who are
entirely at the mercy of others. So when it is said that
‘people in general’ are better off under private
property arrangements, we have to ask ‘Which
people? Everyone? The majority? Or just a small
class of owners whose prosperity is so great as to
offset the consequent immiseration (economic
impoverishment) of the others in an aggregative
utilitarian calculus?’
 Locke & Libertarian Theories of
As we
Property
know Locke has tremendous impact on property theories.
Libertarian philosophers have relied heavily on Lokean Idea and its
various foundational elements.

Locke’s theory of property is laid out in his Two Treatises of

Government. It was believed that work was written between 1679 to
1682, during the Exclusion Crisis, in which the Whigs, led by the
first Earl of Shaftesbury, attempted to prevent the Catholic James,
Duke of York, from inheriting the throne.

Commentators placed here different side of Lockean ideology.

One of the prominent arguments was by Jeremy Waldron, he argued

that Locke’s politics were significantly more egalitarian and he
attempted to place Locke’s view on private property on par with that
of Levellers.
To support his argument he refers 9th chapter of first Treatise,
where Locke has attacked Primogeniture.

The theory of Locke is again understood from the way he has

opposed Robert Filmer’s work (republished in 1670) to support for
claims of royal absolutism by James II. One of the Filmer’s
arguments was that God had given to Adam title to the entire
world, which Adam then bequeathed to his descendants..

Filmer has asserted that it was impossible to justify a system of

private property on the foundation of more egalitarian assumption
that God has given the world, not just to Adam individually, but to
the entire human race in common.

Locke’s primary work is about a defence of democratic self-

government against a pretension of monarchial absolutism.
Locke’s Natural Law Framework: As Waldron observed that
discussion on property adds up to a natural law argument.

For Locke, the natural law is the constellation of rights and duties
that God has built into the fabric of the universe. It is binding on all
human beings, and the content is accessible to them through the use
of their rational faculties.

The first and most fundamental precept of this natural law is that
human beings, as God’s creation, are to be preserved. Individuals
are therefore bound by the duty to preserve themselves, and they
must help others for the same.

This duty is equally created for all human beings, therefore each
person is equally entitled ‘to use of those things, which were
serviceable for subsistence and provide person with means of self
preservation.

Equal right and duty of self-preservation

Locke’s argument for Private Property: Locke argument
of private property differs from that of utilitarians. He
built his theory around the notions of ‘Moral Desert’
Moral desert: person’s just reward – as a outcome of
hardship; the fruit of which one deserve. [criticism by
Rawls]
Lockean theory of property can be better understood
under its three stages- the first is the state of nature-
stage in which private ownership was first developed;
second is the introduction of the money, which
facilitates inequality in the possession of property. In
the 3rd and final stage communities form governments,
which regulate and formalize property rights.
Stage one: he starts describing the state of nature. He depicts a very
positive-people are living together according to reason, without any
common superior on earth. It is also a state of equality, wherein all
the power and jurisdiction is reciprocal, no one having more then
another.

Initially equality is ambiguous, possibly in two state of affairs: In

negative communism & affirmative-original communism.

But how in state of original communism – there can be private

property? – He answers this with his labor principle/ labor theory of
appropriation: Though the earth, and all inferior creatures be
common to all men, yet every man has a property in his own
person. This nobody has right to but himself. Whatsoever then
he removes out of the state that nature hath provided, and left it
in, he hath mixed his labor with and joined to it something that
is his own and thereby makes his property.
Limitation: no one may appropriate more then he can use before it
spoil. Nothing was made by god for man to spoil or destroy. Indeed
if property is perished in his possession, without its due use, the
offended against the nature.

Appropriation out of common is only permissible where there is

enough and as good left in common for others. [paradox of plenty]

Principle of charity

Second Stage: The Introduction of Money- to avoid violating the

spoliation conditions, Locke says that appropriator can voluntarily
exchange his sheep for shells, or wool for a sparkling pebble or
diamond and keep by him during all his life. Through mutual
consent man would take in exchange.

Money breeds inequality and conflicts.- it facilitated the emergence

of dramatic inequalities of possessions in the state of nature.
Through participating in transactions –people consented for
inequality. He has a mixed feeling about the institution of money.
Third Stage: Locke observed that the state of nature lacks three
things: a formally elaborated law to which all parties can look to; a
neutral magistrate to adjudicate between people when conflicts
arise; and organ of a state to enforce the judgments.

The conflicts generated by the introduction of money had made

property insecure in state of nature.

In order to overcome the insecurity people form governments.

However Locke describes the move from informal communities of

state of nature to life under a civil govt. as a departure from
‘freedom’.

He further states that at this stage of civil government, law

prevalent in state of nature doesn't become irrelevant. As
government is formulated by people of that time so it functions
within the bounds of natural law.
• Therefore all limitations or conditions of state of nature
were relevant.
• One of such important point is about consent.
• The term consent is suggestive of actual, individual
agreement to a loss of property. Locke tried make it
clear that person ‘consents’ to subject her property to
laws enacted by the governing majority.
• Every man by consenting with others to make one body
politic, puts himself under obligation, to submit to
determination of the majority.
• Book: The Ethics of Consent by Franklin G. Miller
Every man, that hath any possessions, or
enjoyment, of any part of the dominions of any
government, doth thereby give his tacit consent,
and is as far forth obliged to obedience to the laws
of that government, during such enjoyment, as any
one under it; whether this his possession be of land,
to him and his heirs for ever, or a lodging only for
a week; or whether it be barely travelling freely on
the highway; and in effect, it reaches as far as the
very being of any one within the territories of that
government. [second treatise of Civil Govt., ch. 8]
Other philosophers disagree
‘Enough and good’ Proviso- requirement that others will not be
made worse off in any significant because of act of appropriation.
It is very important to understand the interpretation of the
proviso, because if it is too demanding then it can undermine the
all acts of private appropriation.
Different people have different thinking about the principle.
Robert Nozick ruled out those interpretations requiring that non-
owners continue to enjoy unimpeded opportunities to
appropriate.
In Anarchy, State and Utopia, Nozick discussed his Entitlement
Theory. He tired discussing about justice in holdings.
The theory comprises of three main principles:
1)A principle of justice in acquisition: this principle deals with
the initial acquisition of holdings.

2) Principle of justice in transfer: how one person can acquire

holdings from another, including voluntary exchange and gift.

3) Principle of ratification of injustice: to deal with holding

that are unjustly acquired or transferred. Whether and how
victims can be compensated ?

If world is wholly just then first two principle would be need:

A person who acquires a holding in accordance with principle of

justice in acquisition ; A person who acquires a holding in
accordance with the principle of justice in transfer; No one is
entitled to holding except by application of principle 1 &2.

Therefore distribution is just if all are entitled to the holdings they

possess.
But he argues that not everyone follows these rules- some
people steal from others, or defraud them or forcibly exclude
others.
Nozick idea create a strong system of private property and
free market economy.
Only just transaction is voluntary one.
Idea of Minimal state: only 3 main functions of state
Libertarian further criticized labor theory. – mixing of labor
argument.
Nozick- If I own a can of tomato juice and spill it in the sea,
mingle everywhere throughout the sea, do I thereby come to
own the sea, or have I foolishly dissipated my tomato juice?
The idea is that there are various factors that helps in
reaping .. E.g. effect of photosynthesis .. natural course
If that is the case then even human being is the part of the
nature itself(?)
James Tully- idea resemble with Renner
‘Usefulness’
Libertarian rejects Locke’s majoritarian conception of
consent within civil society and therefore rejects Locke’s
permissible attitude towards state sponsored regulation
and redistribution. ; Nozick minimal state & Epstein idea
Conclusion:
 Hegelian Property Theory
Introduction: One another dimension of property theory.

It is not about utilitarian idea, or social contract based individual rights. Instead it focuses
our attention on the ways in which property contributes to the development of the self or
personality.

Hegel theory is also known personality theory.

Signification: Margaret Jane Radin’s, one contemporary scholar worked on ‘Property

and Personhood Theory’, where she has relied her argument to Hegel. This highlights the
significance of Hegel’s work

Radin states that there is a great relationship b/w person and property. This relationship
has commonly been both ignored and taken for granted in legal thought. The premise
underlying the personhood perspective is that to achieve proper self-development-to be a
person-an individual needs some control over resources in the external environment.

Radin cites these examples where she explains the importance of property: b/w There is
direct connection between property and privacy [4th USA Constitutional amendment;
Katz v. United States, 1967

Property and Liberty [ right in property are basic civil rights has been long recognized
[Lynch v. Household Finance Corp., 1972]
Explanation: Hegel’s account of property is right-based theory
rather than consequentialist theory.

Its justification for property has nothing to do with promoting a

collective good such as overall happiness or social utility, rather it
has concern for individual’s free will.

Book: Elements of Philosophy of Rights, 1820

The common ground for Hegel and Libertarians is concern for

promoting individual freedom.

Similarly, there is difference between Locke and Hegel. Isaiah

Berlin, who called this distinction ‘negative’ and ‘positive’ liberty.

Hegel – person is able to to develop a consciousness of self

awareness.

Through self awareness one can attain freedom, which is an end in

its self.
Having once developed the the will that is free for itself, a person
then able to relate it back to her particular needs and wants, not in
a given attribute to herself, but as chosen.

This is the true realization of freedom – a point where personality

is fully realized, for being a person is able to understand oneself in
this way. .

Two steps- detaching from the particular to the abstract or

universal, and then from abstract back to the particular- are
necessary for the development of personality.

He rejects the Idea of Social Contract.

Property-freedom-right

Hegel defines right as ‘freedom as Idea, An Idea, in Hegel sense, is

a concept that comes to us as we encounter it in the real world. So
freedom as idea is fully realized and actualized.
Hegel states that imperative of right is : Be a person
and respect other as person.
Externalize personality through Property- personality
develop from property. It is the necessary medium
through which process of individual and social
development occurs.
The important contribution of Hegel is in establishing
the fact that property anchors our free will in a actual
world.
The main significance of Hegel’s theory is that firstly
it provide the basis for justifying the private property
on the idea of self-development, and secondly it
develop a constitutive relation between private
property, personal identity, and community.
According to him possession, use and alienation are
rights associated with the property, this should be prior
to any common good and public regulation.
Radin, while relying on Hegel, further classify property
in two two parts: Personal Property & Fungible
Property.
Personal property is property which bound up with a
person; fungible property is one the loss of which can
be relieved through substitutes.
E.g. Basic subsistence: e.g. shelter, clothing, food:
essential for personal/ individual development
Conclusion: Though Hegel provides the
autonomous self of individual, but it should not be
interpreted in a dictatorial way, in other words- his
theory of property work on the premise of self-
regulation, which is transcendental in nature.
Hence while reading Hegel- it can be established
that Right to property is one of the essential rights,
important for individual and societal flourishment.