Mabo: identical practices counting as ownership in one framework and as nothing in another.
Property
Socially recognised control over things - a relation between people about a thing, rather than between a person and a thing.
- Theme
- Society, politics and power
- Tradition
- Cross-tradition
- Term fixed
- 1689
In plain terms
Owning something looks like a relation between you and the thing. It is not. The thing is indifferent.
What ownership actually consists in is a set of relations to other people: they may not use it without your permission, they must not remove it, you may sell it to them, and a court will act if they ignore this. Take those away and the object is unchanged while the property has gone.
Which means property is always a social arrangement, maintained at considerable public expense, and always a bundle rather than a single thing. You can own land and not the minerals under it, a house and not the right to demolish it, a book and not the right to copy it. Asking who owns something is rarely a single question.
As a philosopher would put it
Locke's account has a person's labour, mixed with unowned material, generating a right - subject to the proviso that enough and as good is left for others, and to a spoilage limit that money is then argued to circumvent. It has been the reference point ever since, including for its critics.
Hohfeld's analysis replaces the thing-relation picture with a bundle of claim-rights, liberties, powers and immunities held against specific people, which explains why ownership can be divided in so many ways and why the question of what owning consists in has no single answer.
Hume and Bentham ground property in convention and legal recognition rather than in nature: it exists because a system of rules makes it exist. Marx's account makes ownership of the means of production the determining social relation, and Proudhon's slogan that property is theft is aimed at rent and unearned appropriation rather than at possession as such. Nozick's entitlement theory is the strongest modern defence: just acquisition and just transfer make any resulting distribution just, whatever its shape.
Where you meet it
In June 1992 the High Court of Australia decided Mabo v Queensland (No 2) and held that native title had survived the assertion of British sovereignty where it had not been extinguished.
The doctrine it overturned was that the continent had been terra nullius - land belonging to no one - on the reasoning that the people there had no system of law and no property in the land. The court found this was a factual error as well as a legal one: the Meriam people of Murray Island had a system of individual and family land holdings, gardens and inheritance, documented and continuing.
The misrecognition had operated for two centuries. What the case demonstrates is that property is constituted by recognition: identical practices of use, inheritance and exclusion counted as ownership in one legal framework and as nothing at all in another. The Native Title Act followed in 1993, and the litigation it created is still running.
What is actually disputed
Whether property rights are natural or conventional.
Natural-rights accounts hold that ownership can be established prior to any legal system - by labour, by first occupancy - and that the state's role is to recognise and protect what already exists. Conventional accounts hold that there is nothing to recognise until a system of rules creates it, so property is a legal artefact and every question about its extent is a policy question.
The difference is not academic: it determines whether taxation and regulation interfere with something pre-existing or merely adjust the terms of an arrangement the state constituted.
Locke's proviso is the internal pressure point. If appropriation is legitimate only where enough and as good remains, then in a finite world almost no current holding satisfies it - which either voids the account or requires the reinterpretation that Nozick supplies and his critics regard as evacuating the condition.
Commonly confused with
- things owned Property is the relation, not the objects. Talking about property as if it were the stuff obscures that the relation is between people.
- private property specifically Common, collective and state property are all property. Treating the private form as the definition assumes the conclusion of a long argument.
Defined against
- Common good Whether a resource should be parcelled or held together is the oldest practical question in political economy, and both answers have long records
Philosophers
- John Locke Labour as the origin of property, with a proviso
- David Hume Property as convention rather than nature
- Jean-Jacques Rousseau The enclosure of the first field as the origin of inequality
- Karl Marx Ownership of the means of production as the determining relation
- Jeremy Bentham Property as entirely the creature of law
Works
- Two Treatises of Government The labour theory of acquisition
- A Treatise of Human Nature Property as a convention that solves a coordination problem
- The Social Contract Property and the origins of inequality
- The German Ideology Ownership as the basis of social relations
- Anarchy, State, and Utopia The entitlement theory
- An Introduction to the Principles of Morals and Legislation Property as created by law
Schools
- Natural Law Where property precedes the state
- British Empiricism Where it is a useful convention
- Classical Marxism Where its form determines society
- Objectivism Where it is close to absolute
- Classical Utilitarianism Where it is justified by its consequences
Related concepts
Justice c. 380 BC · Rights 1689 · Common good c. 1270 · Recognition 1807 · Country
Roman law develops dominium as a technical category; Locke's labour theory of acquisition is the argument modern discussions begin from, and Hohfeld's analysis of property as a bundle of relations is the twentieth-century correction.