PROPERTY THEORY -

LECTURE 2
ORIGIN AND
JUSTIFICATION
Ms Namiinda - Course Instructor
(CS, LL.B, (UoN) LL.M, (UoN) KSL
(Dip),Advocate of the High Court of Kenya
  A normative justification for granting property
rights or allocating resources (tangible and
intangible) in a particular way.
 Some theories are attempts to explain existing
A theory of systems, while others seek social change.
 Justification of property rights varies. It’s easy
property: to justify property in oneself. Difficult to justify
What is it? property in external things – for example, do
people have a natural link to land?
 Earlier theories were based on moral or
metaphysical foundations, while modern ones
are becoming pragmatic or utilitarian.
  Explanations as to the foundations of the
current property systems ‘has no place in
the technical training of staff who will not
be expected to be able to respond to
change or to controversies over its future
Why discuss direction.’ (Small)
property  Additionally, if the current systems of
theory? property are regarded as the most
evolved and the pinnacle of all
possibilities for property, then it may be
sufficient to just know how they operate.
(Small)
  Determine the interests (human
autonomy, self-realization, well-
being…) served by a property
A theory of system;
property:  Specify the content of property
What role rights;
does it serve?  Determine who is the holder;
 Justify the allocation of property
rights.
 1) First occupancy/possession theory;
2) Natural rights theory;
3) Labour theory;
Theories of 4) Legal theory;
property 5) Utilitarianism;
6) Personhood theory;
7) Economic theory;
8) Libertarian theory.
  The first-in-time to take possession is regarded the
holder of the property rights;
 Everything is held in common as a gift from the
Creator. People then take for their own use and
according to their needs. (Blackstone);
First
 The first one to use a resource acquires a transient
occupancy or property lasting as long as they are using the
first possession resource. (Blackstone);
theory  Possession forms the root of title – ‘Possession is
nine points of the law.’ (Kanazawa);
 Common application: allocation of natural
resources (wild animals, fish, oil, gas, surface
water) in the 19th Century;
  How do we determine the first occupant
or possessor?
 At what point is occupation or possession
First complete?
occupancy or  What amount of labour/effort is needed
first possession to take first occupation or possession?
theory  What of instances where there are
overlapping efforts to take occupation or
possession? Pierson v Post.
 Other criticisms?
  Property is a gift of nature originally
granted free to all humankind;
 Human beings are mere stewards –
resources are to be used subject to
constraints the Creator imposes on what
Natural rights is lawful and unlawful;
theory  Just as by nature human beings are free
and equal, by nature they have a right to
property;
 Allocation is determined through human
laws;
  The right to property is inherent in
human beings – not granted by the
state, and interference by the state
is not permitted without the consent
Natural rights of the holder.
theory
 Discuss some of the Natural rights
theories of property as postulated by
different Natural law theorists. (5
marks)
  Main proponent – John Locke;
 Property is a natural right;
 In the state of nature, the earth
stood open to all human beings;
Labour theory  Every human beings owns their
body, and, therefore, their labour;
 By mixing their labour with the
common resources, one acquires
private property;
 How much private property can
one acquire?
How much labour must one
Labour theory
expend to become entitled to
the resultant things?
Other criticisms?
  Law takes precedence in determining what
constitutes property – property is a child of
the law;
 Bentham (a natural law critic) states that –
natural rights are, ‘…simple nonsense:
Legal theory natural and imprescriptible rights, rhetorical
nonsense, nonsense upon stilts.’
 Bentham – ‘Property and law are born
together, and die together. Before laws were
made there was no property; take away laws
and property ceases.’
  The law gives the holder a sense of
security and expectation. There are
legal sanctions to protect the rights.
The sanctions are backed by the
Legal theory force of the state.
 The law defines the relationship
between the holder of the rights and
third parties.
 Criticism?
  Property is a positive right created
by law to achieve wider social
goals/benefits;
 It is a means to an end;
Utilitarianism
 The aim is to maximise the overall
utility or happiness of the citizens;
 Allocation is conducted in a manner
that best benefits the social welfare;
  Bentham (main proponent of
utilitarianism) – property is a human
Utilitarianism invention – it does not stem from
morality or natural justice;
 Criticism?
  Property is regarded as one of the
external things that are good and
necessary for the full expression of
personality and individual
Personhood development;
theory  Certain forms of property are so
closely connected to a person’s
emotional and psychological well-
being that they virtually become
part of that person;
  To achieve proper self-development, one
needs some control over resources in the
external environment;
 Some possessions are ‘closely bound up
Personhood
with personhood because they are part of
theory the way we constitute ourselves as
continuing personal entities in the world.’
(Radin)
 Criticism?
  Economic justification of property rights;
 The economic utility that can be derived
from property rights;
Economic  Assumption – the world is filled with
theory economically rational actors constantly
seeking to maximise their self-interests.
(Richard Posner, Adam Smith);
 Property refers to ‘rights to the exclusive
use of valuable resources.’ (Posner)
  Efficient allocation occurs when
value (an individual’s willingness to
pay) is maximised – encourages a
Economic free market – demand and supply;
theory  Role of property law – foster
voluntary commercial transactions;
 Criticism?
  Ownership of private property is necessary
for democratic self-government;
 Property rights provide citizens with
economic security that allows them to
Libertarian make independent political judgment;
theory  ‘Property is intimately related to life and
freedom.’ (Dietze);
 Advocates for a laissez-faire economic
policy;
 Criticism?
Feminism and  GROUP 1 PRESENTATION
Property
Q&A
Thank you for
your attention!