Property Law Notes - JLAM

2008

property" is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property, and in some instances have reached opposite conclusions about its meaning. Most notably, government benefits provided in the form of individual legal entitlements are considered "property" for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain. This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. The Article begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property, and that while courts and commentators can

The purpose of this article is to discuss three ideas under the topic of “property.” First I would like to demonstrate that the meaning and scope of the concept of property are socially and historically constructed and that certain philosophical and ethical concepts that are dominant in a given society perform an important role in that construction. What I wish to suggest is that the definition (i) of what anyone can and cannot appropriate privately (that is: the objects to which ownership of property may apply); and (ii) the rights that owning property may give the owner (that is: what the owner can do with his/her property and what he/she can prevent others from doing with it) has varied in time and space. That variation is derived from a series of factors, specially philosophical and ethical.

Anyone who engages in a discourse about «property» legally understood is faced at the outset with the need to clarify the variety of uses (or abuses) and meanings of the word. The essay is not about «definitions of property» in the sense that it does not try to search for clear-cut definitions of the term. It assumes however that definitional aspects and problems about property stand as a crucial point from where to approach the property discourse. Thus making the issue of "how to define" property a core subject. This may be a rather boring subject, yet one that can hardly be avoided in speaking of property rights, especially in a comparative law context.

I argue there is a distinct and integrated property-concept applying directly, not to things, but to actions. This concept of Property in Activities describes a determinate ethico-political relation to a particular activity – a relation that may (but equally may not) subsequently effect a wide variety of relations to some thing. The relation with the activity is fixed and primary, and any ensuing relations with things are variable and derivative. Property in Activities illuminates many of the vexing problem cases arising in property theory. Communal, intangible, fugacious, hunting, fishing, customary and recreation property rights are not ersatz instances of owning things – they are paradigms of Property Protected Activities. The same is true of the functioning of property in various aspects of contemporary law, its application in philosophical arguments such as Locke’s, and much of its historical application prior to the Nineteenth Century. By illustrating how one stable concept can resolve this myriad of otherwise puzzling cases, I argue that Property in Activities is as important and influential a concept as Ownership of Things.

Rivista Italiana Di Filosofia Analitica Junior, 2014

In the recent debate about the nature of properties, dispositional essentialism, which claims that a property possesses its powers essentially, seems to provide an interesting alternative to the quite simple and problematic view that properties are to be identified through primitive qualities. However, it is not easy to characterize explicitly and uncontroversially dispositional essentialism, in particular when it comes to the treatment of powers. A further reference to primitive qualities may prove to be unavoidable, thus suggesting a medium between quidditism and dispositional essentialism.Whatever means are used in the explanation of a property’s nature, the resort to a rock-bottom entity like a quiddy seems to be the only way to avoid a regress.