Property As Legal Construct

Property appears an abstract, transcendent, metaphysical concept from afar but on closer inspection reveals itself to be legally constructed. Like ‘person,’ property obtains its philosophical traction from a legal, economic, and social imperative to distribute resources, and thus, wealth and power.  As a canonical legal textbook puts it, the “property system” that results from a particular set of legal arrangements can “order relations”; it can “confer benefits and impose burdens.” The law describes how it is acquired by discovery, capture, creation, being found, adverse possession, and gift. These accommodations of property are so fundamental that property is written into our conceptions of ourselves, in claims that “every man has a property in his own person.”

This taxonomy of ways of acquiring property highlight particular modes of interaction with the world in terms of their property creation properties: ‘this way of interacting with the world counts as an acquisition of property if it meets the requisite legal conditions’; the workings of the common law of property are refinements, over an extended period of time, of these interactions. Law thus provides a specification of the conditions under which humans interact with the world to bring property into being, and how other humans should accordingly interact with a world in which property exists, if they are to avoid particular consequences arising from regulations that preserve the categorization of particular objects as property. (Computer software—in its binary and text forms—had to be legally demarcated as ‘ownable’ and ‘copyrightable’ before it could be termed ‘property’ of any kind.) These consequences could, for instance, interfere with ends and purposes served by the provision of private property. The law of property demarcates a range of possible actions and restrictions on our freedom; various pushings, proddings, and pokings of the world become illicit because they may constitute, for instance, ‘trespass on chattels.’ This categorization of the world into property and not-property acquires ontological significance: property becomes part of our socially constructed reality, reconfigurable if social needs change.

Property is not discovered; it is made, not by the act of mixing labor with supposedly ‘fallow land,’ as Locke would have had it, but by the scaffolding provided by the surrounding legal system. Property is a wholly positivistic legal concept; it makes a supposedly natural right ‘real’ and acquires its ontological weight from law. The legal conceptions of property are indifferent to the kinds of property system they create: different sets of rules create different systems, with different balances of power for owners and others; such allocations of property might lock in and preserve existing power relations.

The best justifications—philosophical ones—for system of property are pragmatic, outcome oriented ones. There is no ‘natural’ or ‘objective’ independent basis upon which to rest the ‘protection’ of property:

The property concept had no determinate meaning or positive content. It was a contingent decision whether the owner of the factory machinery should also own the products of the factory, or whether the owner also should control the management of the plant. [Gary Peller, The Metaphysics of American Law, 73 Cal. L. Rev. 1151 (1985)]


Land, Ownership, Property, and Nationalism

A few days ago, a dinner-time conversation with some friends turned to the matter of property disputes within families. Both my wife and I spoke with some feeling about the fierce passions they evoked, their seeming intractability, and of course, in the context of modern real estate pressures, their ever-increasing ferocity. It reminded me, yet again, of the fascination that ownership, especially that of land, seemingly exerts on the human imagination.

In Thirst for Love (Berkley Publishing, New York, 1969), Yukio Mishima, in introducing Etsuko’s father-in-law Yakichi Sugimoto, writes:

It was as if Yakichi were owning land for the first time. Before this he had been able to own building sites. This farm, in fact, had seemed to him only another such piece of property. But now it had come to be land. The instinct which held that the concept of ownership has no meaning unless the object owned is land came to live again in him. It seemed as if for the first time the achievements of this life were firm and palpable to hand and heart. It now seemed that the disdain in which he as a rising young man held his father and his grandfather was entirely attributable to their failure to possess so much as one acre of land.

What is the ‘instinct’ that Mishima speaks of above? It is a heightening of the sense that ownership and property are best understood in terms of relationships to tangible and concrete objects, that the concreteness of the objects owned makes the tenuous nature of the property relationship–an intangible one created and propped up by law and convention–more substantial, and thus, that among those things that might be considered viable objects of ownership the most concrete of them all, the ground beneath our feet, terra firma itself, is the bedrock, the ideal, the paradigm of the owned object. Other objects come to be and pass away; only the land endures, only it can serve as adequate underwriter for systems of property. All other property relations find themselves assessed in comparison to the ur-land-owning relationship.The ideologue of the property relationship reassures himself with the solidity of land. To really own something you must own land.

The ‘instinct’ that Mishima speaks of might find modern expression in the incredulity that some direct at the notion of ideas, creative and artistic techniques, stories, and the like being ‘owned’ by anyone. Far more problematically, It might have found expression in the historical anti-Semitic distrust directed at the roving Jewish diaspora; those that did not own land lacked the appropriate allegiance and grounding in concrete affiliations to the nations they made their homes in (and thus lacked loyalty towards). This suggests too, that nationalisms that stress permanent, written-in-blood relationships to the soil as the basis for their viability share a great deal with the discourse of property: they both seek to render their own ideological roots, their tendency to vanish into the thin air, invisible by pointing to the substantiality of the thing related to.