- •Contents
- •Table of Cases
- •List of Contributors
- •Introduction
- •1. Bottom-Up Theories
- •2. The Humean Approach
- •1. Introduction
- •2. The Moral Right to Labour Productively
- •2.1 The intellectual context for Lockean rights
- •2.2. Labour as a moral right
- •3. Property Acquisition in Labour Theory
- •3.1 Extending labour from the person to things
- •3.2 The social character of productive appropriation
- •3.3 Productive use as a limit on labour
- •3.4 The communicative function of productive labour
- •4. Control Rights in Labour Theory
- •5. Accession in Labour Theory
- •6. Lost Opportunities to Capture in Doctrine
- •7. Acquisition in Doctrine
- •7.1 The basic test for capture
- •7.2 Constructive capture
- •7.3 Multiple proprietary claims
- •8. Accession Policy and Ratione Soli Doctrine
- •9. On the Relation between Legal Property and Moral Rights to Labour
- •10. Conclusion
- •3: Property and Necessity
- •1. Some Conceptual Preliminaries
- •2. Winstanley’s Challenge
- •3. Grotius on Property and Necessity
- •4. Three Important Objections
- •5. Saving Property and Public Necessity
- •6. Is the Right of Necessity a Property Right?
- •4: Private Property and Public Welfare
- •1. The Fifth Amendment Paradox
- •2. Why Acquisition?
- •3.1 Physical possession
- •3.3 Exchange
- •4. Property in Civil Society
- •4.1 The origin of welfare entitlements
- •4.2 Civil society as a bifurcated entity
- •5. Property in the Political Community
- •5.1 Property in the totalitarian state
- •5.2 Property in the dialogical state
- •6. Conclusion
- •5: Average Reciprocity of Advantage
- •1. Introduction
- •2. Background
- •2.1 Judicial opinions
- •2.2 Academic commentators
- •3. Sources of Average Reciprocity of Advantage
- •4. The Limits of ‘In-Kind’ Compensation
- •4.1 General reciprocity
- •4.2 Probabilistic compensation
- •4.3 Basic structural problems
- •5. Reciprocity and Respect
- •5.1 Accepting the conclusion
- •5.2 Rejecting the premisses
- •5.3 Partial, ‘objective’ compensation
- •6. Conclusion
- •1. Introduction
- •2. Between Promise and Detachment
- •2.1 The moral principle
- •2.2 The value of LPA
- •3. Legal Enforcement
- •3.1. Encouraging pre-contractual Investment
- •3.2 Building up trust: the role of LPA
- •4. Proprietary Estoppel
- •4.1 Varieties of PE
- •a) Bargain
- •b) Gifts
- •4.2 The remedy
- •5. Conclusion
- •7: Possession and Use
- •1. Possession
- •2. The Priority of Exclusion
- •3. Bringing Actual Use Back In
- •4. Conclusion
- •8: Possession and the Distractions of Philosophy
- •1. Introduction: The Puzzle
- •3. Possession and Title
- •4. The Right of Possession and its Omnilateral Structure
- •5. Possession and the Incidents of Ownership
- •6. A Principled Practice of Property?
- •7. Conclusion
- •9: The Relativity of Title and Causa Possessionis
- •2. Privity, Estoppel, and Rights to Possess outside of Ownership
- •2.1 A public law problem?
- •2.2 Privity: the missing link between property and person
- •2.3 Let the chips fall where they may
- •3. Conclusion
- •1. Introduction
- •2. Setting the Limits of Property Rights
- •2.1 Where A has an undoubted property right
- •a) The ‘right to exclude’
- •b) The ‘right to use’
- •i. Chattels
- •ii. Land
- •c) Conclusion
- •2.2 Determining if B’s right counts as a property right
- •a) Physical things
- •b) Non-physical things
- •c) Equitable property rights
- •3. Conclusion
- •11: On the Very Idea of Transmissible Rights
- •1. Title and Succession
- •2. The Argument against Transfer or Transmissibility Stated: The Hohfeldian3 Individuation Argument
- •3. Why the Hohfeldian Individuation Argument is Wrong
- •4. Justifying Transmissible Rights
- •4.1 The power to authorize what would otherwise be a battery
- •4.2 The right to immediate, exclusive possession of property
- •4.3 The power to license and to give property away
- •4.4 The power to sell or transfer pursuant to an agreement
- •4.5 The liability to execution
- •5. A Last Word on Conventions and Social Contexts
- •12: Psychologies of Property (and Why Property is not a Hawk/Dove Game)
- •1. The Inside Perspective
- •1.1 Identity formation
- •1.2 Identity fashioning
- •1.3 Refuge
- •1.4 Empowerment
- •1.5. Generosity
- •1.6 Economic incentives
- •1.7 An admonitory postscript
- •2. The Outside Perspective
- •2.1. The picture from in rem
- •2.2 Hawks and Doves
- •2.3 The virtues of non-ownership
- •13: Property and Disagreement
- •1. Disagreements Substantive and Verbal
- •1.1 Verbal disagreements
- •1.2 Disagreement that is partly substantive and partly verbal
- •a) Clarifying the disagreement
- •b) The analysis of property
- •c) The metaphysics of property
- •d) What about W2 and W3?
- •3. A Minor Disagreement that is both Substantive and Conceptual
- •4. Penner Redux: A Major Disagreement that is both Substantive and Conceptual
- •4.1 Reservations: of Wittgenstein and Dworkin
- •4.2 Individuation and incomplete understanding
- •5. The Nature of Property
- •5.2 Smith and the architecture of property
- •6. Conclusion
- •Appendix
- •14: Emergent Property
- •1. Intensions and Conceptualism in Property Law
- •2. Formalism versus Contextualism
- •3. Functionalism
- •4. Holism and Emergence
- •5. An Application to in Rem Rights and Duties
- •6. Conclusion
- •References
- •Index
Psychologies of Property |
277 |
On Bentham’s picture, then, secure ownership encourages a psychological state of optimism in which an economy thrives and capitalism flourishes. On the other side of the coin, so to speak, insecurity of property takes a psychological toll: insecurity creates worries for owners about the possibility of their own potential losses and rouses their anxious sympathy for their neighbours’ losses. What is worse, widespread and repeated incursions on property, according to Bentham, cause people to become mistrustful and lethargic. This pattern causes ‘the deadening of industry’, with terrible consequences for the overall economic well-being of a society.25 Many years after Bentham wrote, Harvard Law School professor Frank Michelman famously used Bentham’s analysis to create a formula for calculating the damage caused by governmental takings of property, notably weighing Benthamite ‘demoralization costs’ against the transaction costs of compensation.26
1.7 An admonitory postscript
Having noted all these positive emotions flowing from property, one should observe that there are some other less attractive psychological states that have been attributed to property ownership. One pithy example was written by British novelist E. M. Forster, in a brief satiric essay entitled ‘My Wood’.27 In the essay, Forster described his state of mind when he bought a forested lot out in the country. His first reaction was that the purchase made him feel vain and, more interestingly, physically fat: he was now a freeholder, a person of substance. He also found that he had become anxious and rather stingy, jealous of the boundaries of his property and dismayed at the hikers who strolled through on country paths. Moreover, he felt falsely proud. A bird landed on a shrub in his wood. ‘My bird’, thought Forster to himself. But then he was irked when ‘his’ bird flew off to sample other territories. To put it in a nutshell, Forster found that property ownership made him feel possessive and self-centred—or perhaps had simply awakened these unattractive character traits that he would have preferred to leave dormant.
Views like Forster’s no doubt have played a role with religious institutions that require their most serious members to renounce individual property. Monks and nuns have had to give up their individual possessions, for example. Why? because property induces people to think and behave in ways that may detract from a spiritual mission. Owning and the associated getting and spending—and simply thinking about owning, getting, and spending—are distractions from the major pursuits of religious orders.28 In a pattern that presents, roughly speaking, the flip side of Radin’s famous article on property as a foundation for self-definition, a religious order might consider it undesirable that the members think at all about themselves and their personal projects. There is a trace of this view—that is, of individual property’s effect on the mind—in the requirement that soldiers wear standard military uniforms rather than their own chosen clothing, and even in the effort to require children to wear school uniforms. To be sure, school uniforms can
25 |
Bentham 1789, 115–19. |
26 Michelman 1967, 1214. |
27 Forster 1936. |
28 |
Goffman 1961, 19–20, related monastery life to the life of inmates in an asylum. |