What can be property?
Posted on:4/8/2006
| The two major justifictions of original property, or homesteading, are effort and scarcity. |
The two major justifictions of original property, or homesteading, are effort and scarcity. John Locke emphasized effort, "mixing your labor" with an object, or clearing and cultivating virgin land. Benjamin Tucker preferred to look at the telos of property, i.e. What is the purpose of property? His answer: to solve the scarcity problem. Only when items are relatively scarce with respect to people's desires do they become property.[3] For example, hunter-gatherers did not consider land to be property, since there was no shortage of land. Agrarian societies later made arable land property, as it was scarce. For something to be economically scarce, it must necessarily have the exclusivity property - that use by one person excludes others from using it. These two justifications lead to different conclusions on what can be property. Intellectual property - non-corporeal things like ideas, plans, orderings and arrangements (musical compositions, novels, computer programs) - are generally considered valid property to those who support an effort justification, but invalid to those who support a scarcity justification (since they don't have the exclusivity property.) Thus even ardent propertarians may disagree about IP.[4] One's body is one's property by either standard.
From some anarchist points of view, the validity of property depends on whether the "property right" requires enforcement by the state. Different forms of "property" require different amounts of enforcement: intellectual property requires a great deal of state intervention to enforce, ownership of distant physical property requires quite a lot, ownership of carried objects requires very little, while ownership of one's own body requires absolutely no state intervention.
Many things have existed that did not have an owner, sometimes called the commons. The term "commons," however, is also often used to mean something quite different: "general collective ownership" - i.e. common ownership. Also, the same term is sometimes used by statists to mean government-owned property that the general public is allowed to access. Law in all societies has tended to develop towards reducing the number of things not having clear owners. Supporters of property rights argue that this enables better protection of scarce resources, due to the tragedy of the commons, while critics argue that it leads to the exploitation of those resources for personal gain and that it hinders taking advantage of potential network effects. These arguments have differing validity for different types of "property" -- things which are not scarce are, for instance, not subject to the tragedy of the commons. Some apparent critics actually are advocating general collective ownership rather than ownerlessness.
Things today which do not have owners include: ideas (except for intellectual property), seawater (except for pollution laws), parts of the seafloor (see United Nations Convention on the Law of the Sea for restrictions), animals in the wild (though there may be restrictions on hunting etc. -- and in some legal systems, such as that of New York, they are actually treated as government property), celestial bodies and outer space, and land in Antarctica.
The living human body is, in most modern societies, considered something which cannot be the property of anyone but the person whose body it is. This is in contradistinction to chattel slavery. The same view is generally taken of the human mind. This might be contrasted with thought police. It also presents theoretical problems for societies that aim to abolish all property (if you do not own your own body, then what rights do you have?).
The nature of children under the age of majority is another contested issue here. In ancient societies children were generally considered the property of their parents. Children in most modern societies theoretically own their own bodies -- but they are considered incompetent to exercise their rights, and their parents or "guardians" are given most of the actual rights of control over them.
Questions regarding the nature of ownership of the body also come up in the issue of abortion.
In many ancient legal systems (e.g. early Roman law), religious sites (e.g. temples) were considered property of the God or gods they were devoted to. However, religious pluralism makes it more convenient to have religious sites owned by the religious body that runs them.
Intellectual property and air (airspace, no-fly zone, pollution laws, which can include tradeable emissions rights) can be property in some senses of the word.
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