Property
Discussion
Theories of Property
Summary from http://www.propertytaskforce.org/node/12:
"Stephen Munzer advances some theories on property that can be quantified along several compatible spectrums. The first spectrum is the stretch between commons to anticommons – in between lies state and private property. This correlates with two theories of property more generally – the bundle-of-rights analysis and the rule-governed entitlements analysis.
The bundle-of-rights analysis further breaks down into 8 normative modalities of rights and their correlatives – claim-right, liberty-right, power, and immunity, with their respective correlatives of duty, no-right, liability, and disability [these modalities were developed by Hohfeld [1919] 1978). Then Honoré (1961) “sought to specify the standard ‘incidents’ of ownership common to Western legal systems” (149) by “taking the fundamental legal conceptions and making them more specific by indicating certain actions or events – for instance, to use, to sell, to exclude – in relation to other persons with respect to things” (149). Munzer theorizes the way that the bundle-of-rights also further clarifies our understanding of property: “If someone has all or almost all of the incidents with respect to a given thing, one can speak of ownership. If someone has rather less than the full package of incidents – as with easements or bailments – there is limited property” (149).
It is possible to identify different sorts of property depending on the identity of the right-holder. Thus, an individual person or a corporation has private property, a tribe has communal property, and a government has public or state property” (149).
Different sorts of property are defined by different forms of social organization and relations to the land: each social agent has a different bundle-of-rights. So it’s not the property itself, or the “resource” that dictates the form of property rights, but rather the type of owner.
The rule-governed entitlements analysis is attributed first to Calabresi and Melamed (1972). Munzer writes that “the enduring value of this analysis rests on the light it throws on the interconnections between property, tort, and contract; on its sensitivity to both distributional and efficiency considerations; and on the choice between civil and criminal sanctions for violations of property rights” (150). An entitlement is “an interest that the law does or should protect. The law can do so by using one or more different sorts of rules: ‘property rules,’ ‘liability rules,’ and ‘rules of inalienability’” (149). Here are the differences:
- A property rule: “protects an entitlement if anyone who wishes to remove it from its holder must buy it from the holder in a voluntary transaction at a price agreed upon between the buyer and the holder-seller. A property rule so defined applies only to market-alienability” – gifts can always be offered and accepted.
- A liability rule: “protects an entitlement if and only if anyone who takes or lessens the value of the entitlement must pay a collectively determined… amount to its holder” (150).
- A rule of inalienability: “protects an entitlement if and only if its transfer is not permitted between a willing buyer and a willing seller” (150).
A property rule, in this analysis, involves a collective decision about who gets an initial entitlement but not as to its value, whereas a liability rule involves collective decisions on both who gets an initial entitlement and what it is worth. A rule of inalienability not only protects an entitlement but also limits or regulates it; it involves the most state intervention. Most entitlements are protected by a combination of property rules, liability rules, and, to a lesser extent, rules of inalienability (150). (http://www.propertytaskforce.org/node/12)
(Source: Munzer, Stephen R. “The Commons and the Anticommons in the Law and Theory of Property.” The Blackwell Guide to the Philosophy of Law and Legal Theory. Ed. Martin P. Golding and William A. Edmundson. Blackwell Publishing, 2004).