Property: concept, rationale, contexts

Abstract

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and 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. Introduction Property is both a concept and a legal institution. A lot of what is explored in this book concerns the latter - property as invoked in law and the property that relates to relations in Australian society. But in order to understand what is happening in property law it is necessary to understand a bit about the concept of property. Indeed, the two dimensions of property are inseparable and the concept is continually informing, justifying and reinforcing the institution. This chapter contains two parts. The first presents a legal-philosophical analysis into the question: what is property? Here, property is described as an indeterminate concept that escapes ridged or fixed definition. Focusing predominately on real property, the part contends that property is about things; legal rights; evolves with respect to social relationships; and has a spatial dimension. Following this, it is noted that property can be organised in three distinct ways: public property, common property and private property. While all societies promote a mixed property system, the most important in Western society is private property. However, despite the ubiquity of private property, it is rare for lawyers to consider the extra-legal or moral justifications for our possessions. For this reason, the second part of the chapter outlines four prominent justifications for private property. Those justifications relate to property derived from labour; human development and flourishing; economic efficiency; and natural or environmental use. While each has merits, this chapter also seeks to problematise and unsettle the theoretical basis for each justification. What is property? Property is how people envision it - that is, what concept they have of it and also a social, political and legal institution, implemented to resolve particular conflicts in society.