The Concept of Property: Relations Through Objects of Social Wealth
University of Toronto Law Journal, Vol. 53, pp. 325-378, 2003
54 Pages Posted: 11 Feb 2011 Last revised: 26 Feb 2011
Date Written: 2003
Property theory need to bring some analysis to bear on the impact that the ‘object of social wealth’ has on the property institution; property is, after all, about resources, whether these be tangible things or intangible forms of wealth. By bringing objects back into the property picture, the social goals that determine the contours of the rights to and obligations surrounding various kinds of resources are brought more clearly into relief. In this article, I analyse how and why property theory needs to account for the role played by different resources in understanding and defining the property relationship. In doing so, I shall propose a new metaphor for understanding private property – that property is a relationship between or among individuals through objects of social wealth – and incorporate this metaphor into the following comprehensive definition:
Private property is a social institution that comprises a variety of contextual relationships among individuals through objects of social wealth and is meant to serve a variety of individual and collective purposes. It is characterized by allocating to individuals a measure of control over the use and alienation of, some degree of exclusivity in the enjoyment of, and some measure of obligation to and responsibilities for scarce and separable objects of social wealth.
This apparently slight change of metaphor and the ensuing re-definition better reflect the contextual nature of property in both property law and theory and have profound implications on property discourse. Notably, the change implies that the object of a property relation has some impact on the property relationship itself. In particular, the move opens the door for certain objects of property to determine the contours of the property relationship, conditioning its duties and rights; this is common practice in property discourse, though it is usually implicit. Contrary to the dominant rights-based paradigm, the re-definition allows specific objects of property to carry with them duties of stewardship or obliga¬tions to use in a certain manner. The general social goals of private property as an institution, as well as the particular social goals pertaining to a specific resource, are a necessary part of understanding private property.
Keywords: private property, defienintion, social obligation, objects of wealth, contextual property
Suggested Citation: Suggested Citation