Lecture notes
Why do we have property
- Module
- Property Law
- Institution
- The University Of Kent (UKC)
Lecture notes of 11 pages for the course Property Law at UKC
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Property Law – Week 14 Lecture NotesWHY DO WE HAVE PROPERTY?
So Why Do We Have Property Anyways?
• ‘That’s my Property! End of Story!’ WRONG!!!!!!
• Such an Assertion is Just the Beginning of the Story.
• But what is the Story and how do we tell it?
An Important Thing to Consider – Property as Inherently Social
• Despite its Individualistic Associations, Property Rights are
Determined in Relation to Others
• Does Property Even Make Sense if Others Don’t Exist?
• Different Modes of Social Relations will Result in Different
Regimes of Property Law (and Vice Versa)
One Justification: The Information Theory
• By Knowing Who Has What Everyone is on Notice as to What is
Their Own
• Individuals are Free to Organize Their Affairs Based on This
Presumption
• If Challenges Arise, a Court of Law can Resolve the Information
Gap
Another Justification: The Progress Theory
• Beyond Simply knowing ‘What is What and Whose is Whose’,
Property Law benefits the Society beyond the Individual
• Firming the Foundations of Ownership Gives Individuals
Incentives to Build and Do Ever Greater Things
• Important Considering Property Rights as Foundation of
Commerce and Enterprise
• Property as a Means of Reducing Violence while Maintaining
Competition
But Who Came Up with this Stuff and Why?
, The Case of Thomas Hobbes’ (1588-1679) ‘State of Nature’
• Often viewed as a theorist of Government and the State, but his
work is relevant to property
• Posited a ‘State of Nature’ where everyone has rights to
everything.
• If you think something is yours’ you can take it by any means
(but it could also be defended by any means)
Who Owns What When All are Fighting ‘A War of All Against
All’?
• Constant uncertainty of ownership (not to mention personal
security) meant there could be no progress – Life in the state of
nature is ‘nasty, brutish, solitary and short’
• His Solution: Empower an All Powerful Sovereign (Leviathan) to
Guarantee Order by Existing Beyond the Law
John Locke’s (1632-1704) Kinder, Gentler State of Nature
• He also imagined a State of Nature where all things are held in
common
• Property is created when an individual mixes their labor power
with that which is within nature’s common stock
• By improving something it becomes your own
• The role of the Government is to be the minimalist protector of
individual’s property (the ‘Night Watchman State’)
But Where Were the Classical Theorists Speaking From?
Property and the Variety of Social Relations
• The Social Relations Critiqued by the Classical Enlightenment
Theorists – Feudalism
• Entrenched Hierarchies based on Customary Rights to Land –
Use of Land Came with Obligations (restraints on alienation,
rendering of military service)
• Your Place in the Landed Hierarchy was Your Place in Society
(Lord, Knight, Peasant, Serf, etc…)
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