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Property and Proprietary Rights

Chapter 6
Property and Proprietary Rights

The meaning of ‘property’ varies according to its function in a particular context, and so we might conclude that it simply has no general meaning.1

Property is a socially constructed concept; and former perceptions of property as a monopolistic right of control and exploitation have long since been eroded by wider conceptions of the public good.2

What is Property?

The first step in propounding a property approach is to be clear what we mean by property, but this is a first step on slippery ground for, as Gray and Gray put it, ‘[f]ew concepts are quite so fragile, so elusive and so often misused as the notion of property’.3 As with autonomy, property is not a monolithic concept. It is arguable that property has no general meaning.4 Property may be defined in layperson’s terms and in economic, social and legal terms. To the layperson, property is tangible – land, house, car, book and so on. In the economic sense property is a means of distributing wealth. In the social sense property is a means of protecting liberty and autonomy – for example, the child asserting its identity by proclaiming that a toy is theirs. In this book we are concerned primarily with property in the legal sense of the word. However, the legal and social dimensions of property sit by side:

Countless assumptions and claims are informed by the idea of property without reference to official agencies of the law. Furthermore the open-ended nature of many proprietary principles entails that, even when embodied in law, their official interpretation and implementation often interact with current social understandings of them.5

The social dimension to the legal meaning of property is expressed in Demsetz’s affirmation that ‘[i]n the world of Robinson Crusoe property rights play no role’6 and in similar imagery by Underkuffler:

The idea of a man’s coconuts being his property makes no sense if he is stranded, irrevocably, on an uninhabited island; property has meaning only when human relations, or conflicting claims among people, are at stake.7

This point is expanded by Gold:

… it is no good for me to claim ownership of a pen against the demands of a martian because the martian does not live by and under the rules imposed by our society. The pen is an instantiation of a norm – the exclusive rights of use and possession – that we, as members of this society at this time, have agreed or acquiesced in following. When we grant property rights to each other – assuming that we grant property rights for certain nonarbitrary reasons – we do so on the basis of one or more ways of valuing the object or the individual to whom we grant the rights. That is, the determination of who should get which rights to which object depends on how we, in society, value the object – as beautiful, as a luxury, or as a commodity – and the recipient of the right – as deserving, as having highly developed tastes, or as a consumer.8

This social dimension to the legal concept of property, the idea that we consider property not in isolation but in the context of the owner’s relationships with others, parallels the observation made in Chapter 2 that the individual’s right to self-determination exists not in a vacuum but in the context of relationships with other persons. This is the contextual emphasis that is captured by the ecology paradigm adopted in Chapter 1.

An underlying reason for (or perhaps a consequence of) the looseness of definitions in this subject is that the legal theory of property is dynamic. As Gray puts it, ‘the definition of “property” is constantly on the move’.9 In the same vein, Grubb states that ‘the categories of property are never closed or static and shift with societal norms’.10 Matthews proclaimed that:

the ambit of ‘property’ had broken its bounds, and there was no stopping it. Debts … became ‘property’, governed by the same principles. So did rights of action. Intellectual property was invented, and subsumed into the property framework. Shares in companies, confidential information and goodwill, all were taken under the property wing. In the twentieth century we see energy as property, and other forms of information, and maybe personality and image as well.11

Property as a Thing

The popular perception of property is that it is a ‘thing’.12 This perception, the reified notion of property, dates back to two centuries ago when William Blackstone described property rights as comprising:

that sole or despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.13

In contemporary society hardly anyone would argue that property confers absolute dominion. Property rights are subject to restrictions, for example, on what may be built where, and how the rights may or may not be enjoyed. This is more fully discussed later in this chapter.

A century ago, Strahan affirmed that property must be a physical object and categorically stated that debts, patent and copyright were not property.14 At about the same time, however, Madison15 produced this insightful conception of property:

In the former sense, a man’s land, or merchandize [sic] or money is called his property.

In the latter sense, a man has property in his opinions and the free communication of them.

He has a property of peculiar value in his opinions and the free communication of them.

He has property of peculiar value in his religious opinions and in the profession and practice dictated by them …

He has property very dear to him in the safety and liberty of his person.

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have property in his rights.16

Despite the long existence of this broader concept of property, there are scholars who still uphold the narrower definition of property as a thing.17 While Gray asserts that property is not a thing but a concentration of power over things (see below),18 Penner maintains that ‘property is what the average citizen … thinks it is: the right to a thing’.19 He argues that the concept of property as a bundle of rights (i.e. not as a thing but as defining the relationship between two persons) lies at the root of property’s identity crisis; it falls short of defining a particular legal relation and is not helpful to judges. For example, he asks, which of the rights in the bundle are essential, and are a critical number of rights essential?

He cautions against defining property in isolation:

… property is a creature of its environment, the legal system. We make a mistake if we think we can just wrestle it to the ground, take its measurements and fingerprints, and set it on its way again, satisfied that we have done all we need to understand it. We must be ecologists, and see how it behaves in its environment, interacting with its fellow creatures. But we cannot go too far in the opposite extreme, either. Property is not just its interaction with others. If we are inattentive to the categories themselves, these interactions may make us lose a sense of where property ends and other legal concepts begin.20

In this quotation, Penner basically reiterates his point referred to earlier in this chapter, that the social and legal dimensions of property are intertwined. By warning of the consequences of going ‘too far in the opposite extreme’, he draws attention to the need for a conceptual framework which defines property in the legal sense.

Penner’s advice that to understand property we must be ecologists echoes the ecology paradigm chosen for this book in Chapter 1. He associates property with a right to things, this right being defined by the ‘exclusion thesis: the right to property is a right to exclude others from things which is grounded by the interest we have in the use of things’.21 In his view, it is the concept of exclusion, not use, which is central to the definition of property:

The right to property is thus a right to a liberty, the liberty to dispose of the things one owns as one wishes within a general sphere of protection. It is not the right to any particular use, benefit, or result from the use of property. The duty in rem of property correlates with the right to a liberty to dispose of property, not to a specific right in the value of property, or a right to any goal one may set on one’s use of it, and so on.22

Penner supports this view by referring to the court’s position in common law when faced with claims to property in news, events or information. In such cases the court does not ask whether the claimant has the right effectively to exclude the putative trespasser from the supposed property; rather, it asks whether the putative trespasser has a duty to exclude himself from it.

If property is a thing and property rights are rights to things, what ‘things’ can be property? Penner provides an answer in the separability thesis which he expresses as follows:

Only those ‘things’ in the world which are contingently associated with any particular owner may be objects of poverty; as a function of the nature of this contingency, in theory nothing of normative consequence beyond the fact that the ownership has changed occurs when an object of property is alienated to another.23

In other words, ‘[t]o be conceived of as an object of property a thing must first be considered as separable and distinct from (i.e. “contingently associated” with) any person who might hold it, and is for that reason rightly regarded as alienable’.24 Thus, our talents, personality, eyesight and friendships cannot be property. Similarly, rights such as the right to marry cannot be property rights – because they are not separable from the person. A taxi licence is property because it is freely alienable but a licence to practise medicine is not property because it is not separable from the holder.25 Applying this thesis to body parts, it could be argued that one’s kidney is not property while it is in vivo, but becomes property when it has been removed from the body. On the same analogy, sperm would be an object of property once it had been ejaculated. In the same vein, the patient’s right to self-determination cannot be property, since it is not separable from the patient.

Penner’s analysis helps to clarify various attributes of property but is unlikely to withstand the tide of change that has been creating new objects of property, many of which are not tangible things.

In English law, property is classified as real or personal.26 Real property is land. Personal property (or personalty) is all the property that is left once real property has been subtracted. Personal property may be chattels real (principally leasehold interests in land) or chattels personal (all other personal property). Chattels personal are divided into choses in possession and choses in action.

Choses in possession are tangible, movable things, and are called ‘goods’ when they are the subject of a sale. Proprietary interests in tangible personal property are defined in terms of possession and ownership, but these terms are not well defined. Proudhon ventures a comparison: ‘a lover is a possessor, the husband a proprietor’.27 A possessor may have property rights but no ownership. Proudhon states that the right in a thing (jus in re) rests with the possessor, but one does not have to be in possession to have the right to a thing (jus ad rem).28 In contemporary law, the gap between personal and proprietary entitlement appears to be narrowing, and it has been suggested that human rights law bridges the gap between the two. The provisions of the European Convention on Human Rights relating to liberty and security (Article 5) and to private and family life and home (Article 8)29 have legal implications for what can or cannot be done with realty, so, Gray and Gray argue, could be seen ‘as creative of new forms of proprietary entitlement’.30

Unlike choses in possession, choses in action are intangible and cannot be physically possessed. Examples of choses in action are debts, shares in companies and intellectual property. According to Holdsworth, the term was originally used to cover rights associated with a personal action, such as trespass; only later was it applied to real action.31 In the sixteenth century, choses in action ‘were extended from a right to bring an action to the documents which were necessary evidence of such a right’32 – so bonds and, later, stocks, insurance policies and similar intangibles became choses in action.

A chose in action is a property interest that can be enforced only through legal action (not by taking physical possession). Over a century ago, it was argued that a right of action in tort could be regarded as a chose in action.33 In Chapters 8 and 9 it will be argued that the patient’s right to self-determination can be protected as a chose in action.

Property as Commodity

Some commentators portray property not only as a thing but as something that can be bought and sold in a market. Steinbock describes this attribute as ‘a very important element of property’.34 However, while property may have this element, this is not necessarily or inevitably the case. Giving a dissenting judgment in the US case of International News Service v. Associated Press, Justice Brandeis said that the fact that a product had a value for which others were willing to pay was not sufficient to endow it with the legal attribute of property.35

Steinbock appears to be taking property as synonymous with commodity (something that can be turned to commercial or other advantage). In fact, property is sometimes but not always a commodity. This distinction is germane to any consideration of body or body parts as property. Some judges have dismissed property claims on the basis of inalienability of the object being claimed.36 Radin, on the other hand, discounts the notion that market alienability is inherent in the concept of property.37

In National Provincial Bank Ltd v. Ainsworth, Lord Wilberforce described the hallmarks of a property right, stating that it must be ‘definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability’.38 This may have been helpful in distinguishing between property and personal rights, but it promotes the obsolete image of property as something merchantable. Property need not necessarily be alienable, nor does it have to be tangible.

Academic and judicial thinking that requires that an object be alienable in order to be regarded as property predates the biotechnology boom. In today’s world, property does not have to be alienable – so the right to sufficient information and to make one’s own informed decision cannot be excluded from the class of property simply on account of its inalienability. This right has assumed such high premium in contemporary western society that it arguably deserves the protection traditionally afforded to property.

It is arguable whether a core attribute of property is value; we would not usually attribute property rights to something that society does not value. To borrow a good illustration, a dead leaf fallen from a tree is not property but an accumulation of leaves in a compost pile is property.39 On the other hand, Moses argues that ‘[q]uestions of value will affect whether anyone cares that something is classified as property, but value ought not be treated as essential to the very concept of property’.40

Generally, the more valuable the object becomes, the more precisely the property rights associated with it are defined and the more vigorously these rights are exercised. This is illustrated by the growing propertiness41 of intellectual property.42 This core attribute of property underlies Proudhon’s famous assertion that ‘property is theft’:43 property rights or interests protect value; that which has no value cannot be property or object of property rights. The multitudinous perception of property in everyday discourse, however, led Gray to say that:

Proudhon got it all wrong. Property is not theft – it is fraud. Few other legal notions operate such gross or systematic deception. Before long I will have sold you a piece of thin air and you will have called it property. But the ultimate fact about property is that it does not really exist: it is mere illusion. It is a vacant concept – oddly enough rather like thin air.44

Property as Relationship with a Thing

Another approach to property is to see it not as a thing but as a relationship between a person and a thing. Some theorists, notably Margaret Radin, see property as forming part of our personality and social relationships.45 According to Radin’s ‘property for personhood’ theory, the control that one has over environmental resources is part of one’s personality. Property for personhood defines a relationship that is essential to self-identification. She distinguishes between personal property (property that is bound up with a person) and fungible property (property that is held purely instrumentally). The former ‘could be described as simply a category of property for personal autonomy or liberty’,46 and, she argues, should have greater legal protection. A wedding ring in a jeweller’s shop is fungible property but a wedding ring on the finger of a loving wearer is personal property because it is constitutive of the wearer’s personality. Extending that analogy, the body is personal property because it is also constitutive of the individual’s personality. She goes on to say ‘[t]his line of thinking leads to a property theory for the tort of assault and battery: Interference with my body is interference with my personal property’.47

As will be seen in Chapter 7, this idea of property is used in arguments about commodification of the body. A weakness of the theory is that personality is defined in terms of a relationship with objects rather than a relationship with other persons.

Property as Rights against Others or Rights in, to or over a Thing

In everyday conversation, we usually speak of ‘property’ rather than ‘property rights’ but the contraction is misleading if it tends to make us think of property as things rather than as rights. A more modern view sees property not as a thing or a relationship between a person and a thing, but as rights against others, in or over things.48 In other words, property can be seen as defining the obligations of persons with respect to a tangible or intangible object. When viewed in these terms – that is, property seen in terms of rights against others, rather than as a thing of commercial value – the concept of property rights in the human body would seem to have a more acceptable face. Intangibles to which property rights or interests have been attributed in contemporary discourse include welfare benefits,49 franchises,50 whiteness,51 racial identity,52 personhood,53 university degrees54 and air space.55 Some have gone further to say that property establishes a legal relationship between persons, not necessarily with reference to things.56

A property interest indicates not necessarily that the holder owns something, but that someone owes him an obligation. Unlike contractual rights, which are enforceable against a particular person or persons (rights in personam), property rights are enforceable against the whole world (rights in rem). Rights against others can be seen as negative rights,57 as expressed in Matthews’ view of property:

The common law sees property as essentially negative, the right to exclude others from something, or from some aspect of something. This negative right may be absolute, as for example ‘This is my pen’. I can exclude everyone from everything in relation to it. Or it may be limited – even isolated as in for example ‘I have a right to light over (your) land’. I can prevent you from building in a certain way on your land. Sometimes the negativity imposes a positive obligation on another person, as in ‘You owe me £10’.58

The concept of property as rights against others owes its place in the annals of property law to the seminal work of Wesley Hohfeld.59

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