keskiviikko 18. elokuuta 2010
The Concept of Ownership
James O. Grunebaum's book Private ownership is one of the classics of ownership. This book is also a key part of the theory background of my dissertation. In the following posts I will share some of my notes of his main ideas. Some of you might regard this to be 'academic jargon', but hopefully some of you also find the joy of the philosophy of ownership.
The concept of ownership
Principally, the word ´property´ seems to connote something in the thing or object rather than the idea that ownership is a relation between persons with respect to things. Ownership is a set of relations constituted by rights and duties among persons. There is nothing in the object owned which marks it off as mine, yours, or ours. Second, the word 'property' is too often used to refer only to land or what is called real property. Ownership has a much broader connotation. (s. 3-4)
Ownership in general is a right constituted relationship, or set of relationships, between persons with respect to things. (4)
In The German Ideology, Marx defines ownership as "the relations of individuals to one another with reference to the material, instrument and product of labor". (4)
Locke's clearest definition of ownership in the Second Treatise is that "...for I have truly no property in that, which another can by right take from me, against my consent". Locke's definition creates webs of rights and duties which focus about what is owned. Thus, to own something involves rights of owners and creates in others duties not to take from or interfere with an owner's use of what he owns. (4)
A specific form of ownership is a unique particularization of the subject, object and content of the relation from among the many possible ones. (4-5)
The rules which prescribe the rights and duties that constitute the ownership relation may be either moral or legal or both. (5)
Hobbes claims that there is no ownership, no mine and thine, in a state of nature. Unless the members of a society acknowledge the same set of ownership rules, ownership will make no sense at all. Without such rules everyone could own everything and no one could own anything. (6)
There is no real consensus about which rules define private ownership. Many different sets of rules are used which resemble each other in a variety of ways. One definition is that private ownership is "the exclusive right of a person over a thing". And it is a majestic right a right so vast in scope that no other comes remotely close to it. It is indeed so total, so absolute that it alone of all rights survives death. (8)
Private ownership can be defined by specifying the subject, object, and the content of the ownership relation. The subject of the relation is persons generally. Private ownership places no limits upon who may be owners. Owners may be single individuals or groups of individuals. Of course if persons are themselves owned, as slaves, children, or wives, then they cannot be owners. The object of the relation in a system of private ownership is any possible ownable, i.e. anything at all, including persons in some cases. Some forms of ownership may limit the domain of objects which may be privately owned, e.g. by excluding persons or by excluding lands and resources from the object of relation. (9)
It is the content of the private ownership relation which best defines it in contrast to other forms. The content of the private ownership relation consists in vestiture of the the right to use ownables in any way whatsoever limited only by the moral law. Private owners have the right to use and manage what they own as they please. Use and management include not only physical control of and alternations to what is owned but also the conditions in which others may use what is owned, e.g., when others may enter upon privately owned land. Private owners also have unrestricted rights to the income or the capital from what they own, i.e. unlimited fiscal control. These rights include not only money from rents or leases but also the right to sell at a profit or to destroy what one owns. (10)
Criteria of the title
The requirement of consistency demands that the criteria of title be such that no individual or group of individuals can both own and not own the same thing at the same time and in the same way. Consistency does not exclude joint and common ownership nor does it exclude the possibility that some things may be unownable. What is required is only a consistent assignment of rights over things. (13)
The determinacy requirement demands that it must be possible, at least in principle, to unambiguously determine whether a person does or does not own some particular thing. Determinate criteria of title would in principle supply an account of what would establish uncontestable title were it to exist. (13)
Third, the criteria of title must be complete. Completeness demands that if something is ownable according to a set of ownership rules then it must be possible for someone or some group to own it. This is not to say that every set of ownership rules permit ownership of every kind of thing or that everyone own something. Completeness only requires that for everything which can be owned, relative to a specific set of ownership rules, the criteria of title must prescribe a procedure for ownership, or for non-ownership of that thing.
All systems of ownership rules perform two essential social functions: they assign rights to individuals or groups of individuals, and they prescribe mechanisms for the acquisition, transfer, and alienation of these rights. (11)
Ownership rules can be either legal or moral or both just as long as they are acknowledged. (11)
There is nothing anomalous about entailments in private ownership. Many persons who possess ownables such as lessees, bailees, or trustees, cannot exercise all of the private ownership rights. (10)
It is sometimes thought that all systems of ownership rules, i.e. all specific forms of ownership, grant to owners the right to exclusively control all uses of what they own. This is twofold mistake. First, exclusivity is not a right at all. Second, although there is a sense of 'exclusivity' which is entailed by ownership, this does not extend to the right to control all uses of what one owns. Ownership does entail exclusivity in the sense that owners have rights over what they own which they alone, or their designees, may exercise; there are the rights over what they own which others, non-owners, simply lack. Exclusivity is not a right over and above the other rights of title; rather 'exclusivity' in this context is only a summary expression for the idea that the rights of the title vest only in the owner. (19)
A.M.Honoré argues that a right of recovery from unlawful appropriation is an essential right in the legal concept of liberal ownership. (19)
James O. Grunebaum, Private Ownership, 1987.