Lecture 1 What is property?:
→ Property is usually thought as the object that is owned, but for us it’s a complex social and
legal relationship
→ “Instead of defining the relationship between a person and “his” things, property law
discusses the relationships that arise between people with respect to things.” (B Ackerman,
Private Property and the Constitution).
→ Ownership isn’t just one thing, it depends on what you own and what rights you have
→ Property is a legal construct bound by other laws; you can’t break laws even if you’re in your
own property, the state still controls you
→ Property is said to be a bundle of rights and obligations but even then it’s hard to define
which ones
→ “…the ultimate fact about property is that it does not really exist: it is mere illusion.”
-Kevin Gray
→ Land can sustain multiple interests at the same time; owning a car park but people park cars
• Property is a legal construct
• The notion of property means you can exclude other people, control over who can enter
and who can’t
Victoria Park Racing 1937
Race course for horsing, regular competitions held, enclosed by a fence you could only enter if
you had a ticket. Taylor (defendant) had a cottage next door, on his property he built a high
wooden tower and from it he could see into the race track and made an agreement with a
broadcasting company off course betting company (in competition with the racing place).
JUDGEMENT - there’s no property in this case, it’s business. There’s damage but no tangible
legal wrong. If the park doesn’t want people to see then put a roof on it - make it physically
excludable.
What cannot be ‘propertised’?
• Physical non-excludability e.g lighthouse is owned by someone but the light that comes
out can’t be property, ships get it whether they want it or not, the sound of a concert
outside, the ocean
, • Moral non-excludability e.g. slavery, Look at Davis 1988 - tried to stop people using
certain phrases.
• Legal non-excludability - someone should have protected something but they didn’t, so
the law doesn’t get involved…?
What does property do?
Property is generally understood as one of the central means of the distribution (or lack
thereof) of wealth in society. But it is also much more than this. We can look to the ideas of
some key social and political theorists for their particular understandings of property. For many,
and arguably from a historical perspective, it forms the very basis of modern law.
3
For Jeremy Bentham property is created by law. As he writes, “property and law are born
together and die together.”2 Property is the necessary foundation of security in society.
Without predictable property rights, there can be no exchange. o “Property is nothing but a
basis of expectation; the expectation of deriving certain advantages from a thing which we are
said to possess, in consequence of the relation in which we stand toward it.”3 o “As regards
property, security consists in receiving no check, no shock, no derangement to the expectation
founded on the laws, of enjoying such and such a portion of good.”4 For John Locke, property
occurs naturally and forms the very basis of modern government, as we will explore in more
detail next week. For G.W.F. Hegel, it is an intimate and essential part of the creation of
personhood. It is through our possession of objects that others come to recognise us. One of
the most well-known theories of property comes from Pierre Joseph Proudhon, a French
anarchist theorist who argues that all “property is theft.” What Proudhon wants us to
appreciate with the exclamation that all property is theft is that there is a violence at the heart
of property, whereby anything that is propertised is a theft from an original commons.
However, property has a lot of purchase as a legal, social and political concept beyond its most
obvious functions. As Cheryl Harris famously argued in relation to the US case Plessy v Ferguson
(1896) 163 U.S. 537 which upheld racial segregation and created the doctrine of ‘separate but
equal’, whiteness functions as a form of property. o "Becoming white increased the possibility
of controlling aspects of one's life rather than being an object of others' domination.... In ways
so embedded that it is rarely apparent, the set of assumptions, privileges, and benefits that
accompany the status of being white have become a valuable asset that whites sought to
protect sought to attain--by fraud if necessary. Whites have come to expect and rely on these
benefits, and over time these expectations have been affirmed, legitimated, and protected by
the law. Even though the law is neither uniform nor explicit in all instances, in protecting settled
expectations based on white privilege, American law has recognised a property interest in
whiteness that, although unacknowledged, now forms the background against which legal
disputes are framed, argued, and adjudicated.”5
, Do you own your own body?
In a strictly legal sense, one does not own one’s own body as such. It is not legally possible,
for instance, to sell yourself into slavery (see Modern Slavery Act 2015 s 1(5)). In relation to
body parts, courts have generally held that they are not property unless some level of skill has
been applied to them (see R v Kelly [1999] QB 621 and Moore v Regents of the University of
California (1990).
2 Jeremy Betham, Principles of the Civil Code (London: K. Paul, Trench, Trubner & Co. Ltd.,
1931), 113. 3
→ Property is usually thought as the object that is owned, but for us it’s a complex social and
legal relationship
→ “Instead of defining the relationship between a person and “his” things, property law
discusses the relationships that arise between people with respect to things.” (B Ackerman,
Private Property and the Constitution).
→ Ownership isn’t just one thing, it depends on what you own and what rights you have
→ Property is a legal construct bound by other laws; you can’t break laws even if you’re in your
own property, the state still controls you
→ Property is said to be a bundle of rights and obligations but even then it’s hard to define
which ones
→ “…the ultimate fact about property is that it does not really exist: it is mere illusion.”
-Kevin Gray
→ Land can sustain multiple interests at the same time; owning a car park but people park cars
• Property is a legal construct
• The notion of property means you can exclude other people, control over who can enter
and who can’t
Victoria Park Racing 1937
Race course for horsing, regular competitions held, enclosed by a fence you could only enter if
you had a ticket. Taylor (defendant) had a cottage next door, on his property he built a high
wooden tower and from it he could see into the race track and made an agreement with a
broadcasting company off course betting company (in competition with the racing place).
JUDGEMENT - there’s no property in this case, it’s business. There’s damage but no tangible
legal wrong. If the park doesn’t want people to see then put a roof on it - make it physically
excludable.
What cannot be ‘propertised’?
• Physical non-excludability e.g lighthouse is owned by someone but the light that comes
out can’t be property, ships get it whether they want it or not, the sound of a concert
outside, the ocean
, • Moral non-excludability e.g. slavery, Look at Davis 1988 - tried to stop people using
certain phrases.
• Legal non-excludability - someone should have protected something but they didn’t, so
the law doesn’t get involved…?
What does property do?
Property is generally understood as one of the central means of the distribution (or lack
thereof) of wealth in society. But it is also much more than this. We can look to the ideas of
some key social and political theorists for their particular understandings of property. For many,
and arguably from a historical perspective, it forms the very basis of modern law.
3
For Jeremy Bentham property is created by law. As he writes, “property and law are born
together and die together.”2 Property is the necessary foundation of security in society.
Without predictable property rights, there can be no exchange. o “Property is nothing but a
basis of expectation; the expectation of deriving certain advantages from a thing which we are
said to possess, in consequence of the relation in which we stand toward it.”3 o “As regards
property, security consists in receiving no check, no shock, no derangement to the expectation
founded on the laws, of enjoying such and such a portion of good.”4 For John Locke, property
occurs naturally and forms the very basis of modern government, as we will explore in more
detail next week. For G.W.F. Hegel, it is an intimate and essential part of the creation of
personhood. It is through our possession of objects that others come to recognise us. One of
the most well-known theories of property comes from Pierre Joseph Proudhon, a French
anarchist theorist who argues that all “property is theft.” What Proudhon wants us to
appreciate with the exclamation that all property is theft is that there is a violence at the heart
of property, whereby anything that is propertised is a theft from an original commons.
However, property has a lot of purchase as a legal, social and political concept beyond its most
obvious functions. As Cheryl Harris famously argued in relation to the US case Plessy v Ferguson
(1896) 163 U.S. 537 which upheld racial segregation and created the doctrine of ‘separate but
equal’, whiteness functions as a form of property. o "Becoming white increased the possibility
of controlling aspects of one's life rather than being an object of others' domination.... In ways
so embedded that it is rarely apparent, the set of assumptions, privileges, and benefits that
accompany the status of being white have become a valuable asset that whites sought to
protect sought to attain--by fraud if necessary. Whites have come to expect and rely on these
benefits, and over time these expectations have been affirmed, legitimated, and protected by
the law. Even though the law is neither uniform nor explicit in all instances, in protecting settled
expectations based on white privilege, American law has recognised a property interest in
whiteness that, although unacknowledged, now forms the background against which legal
disputes are framed, argued, and adjudicated.”5
, Do you own your own body?
In a strictly legal sense, one does not own one’s own body as such. It is not legally possible,
for instance, to sell yourself into slavery (see Modern Slavery Act 2015 s 1(5)). In relation to
body parts, courts have generally held that they are not property unless some level of skill has
been applied to them (see R v Kelly [1999] QB 621 and Moore v Regents of the University of
California (1990).
2 Jeremy Betham, Principles of the Civil Code (London: K. Paul, Trench, Trubner & Co. Ltd.,
1931), 113. 3
