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Policy Notes

Law Notes > Property A Notes

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Concept of property Nature and essence of property Hohfeld's three conceptions of property
? A thing (object) in which rights are held
? The rights a person (subject) has in relation to a thing (object)
? The rights a person (subject) has over other persons in relation to a thing (object). Felix Cohen article F Cohen (374) To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private citizen Endorsed: The state

Notes: Any definition of property, to be useful, must reflect the fact that property merges by imperceptible degrees into government, contract, force and value' (374) Cohen Bentham Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases. (Quoted in F. Cohen 371) F COHEN (374): To the world: (slides) Tax: the state enables you to have your property in the first place and then takes a fee for this. From reading of article:Property is not a collection of objects, but the relationship between people and those objects.


Private property is subject to limitations based on the rights of other individuals, therefore people do not generally have the right to do whatever it is they want with their property.The institution of property may or may not involve external physical objects, but it always involves relationships between people.Not only is there valueless property, but propertyless value. Property is not wealth (eg if there is no scarcity of an item, that item may cease to be property - eg air. But if there is a scarcity of air, air may be property that can be exchanged for consideration).Productivity, certainty, enforceability and fairness may be considerations.Private property may or may not involve a right to use something oneself. It may or may not involve a right to sell, but it will always involve a right to exclude others from doing something.However a power to exclude will not always involve a property right. The kind of power to exclude that is essential to property rights is the power when you can count upon the state to assist you to enforce your rights (ie there is a predictable action the state will take - "established expectations" per Bentham. Property is a function of government and sovereignty.In conclusion: "private property is a relationship among human beings such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure the assistance of the law in carrying out his decision." (Note that the word "exclude" in relation to property relates to the WHOLE WORLD).

Other notes

* Property is a bundle of rights (eg more than one person may hold rights, or one person may hold many rights)


Different societies have different systems o

Private property -individual persons have right to exclude the rest


Common property - property is communally owned (economists calls this 'open access')


Collective property - owned by State on behalf of everyone

Justifications for and criticisms of private property Property theories: Ziff's Hierarchy First order theories: why do we have the institution of private property?
Second order theories: assuming we have private property, what 'things' should be objects of property?

Third order theories: assuming a 'thing' can be owned, who should hold the right to it?
Justification theories (first order theories in Ziff's hierarchy) (1.110E) Justification theories are necessary because property rights come about due to a belief that the right to hold private property is a human right. A legal belief has to be grounded in a public belief that the right is morally right, since property rights (eg in land larger than a person can work himself, capital) by some measure allow a person to control the lives of others.

1. First occupation theory- finder's keepers o

(M R Cohen article) Based on "the assumed right of the original discover and occupant to dispose of that which thus became his".


However in Australia - the first people do not have all title - Crown has this. This is a fairly crude older theory.

2. Locke's labour theory/natural rights theory - the right to the fruits of one's own labour o

According to this theory, all property was originally owned in common but people (at Locke's time only men) could appropriate the property by mingling their labour with it. Things belonged to the man who had made them.


Writing in 1690. Before 1688 the King owned all the land and then the aristocracy did. Although originally we held everything in common, this theory said men had a right to appropriate property as a result of them mingling their labour with the property. Eg if you develop the property (eg are a peasant toiling the land you may have a proprietary right to the produce of the land). This theory did not take off in England at the time Locke was writing because the peasants did most of the labour and if followed this would mean they (not the govt etc) owned the land. Locke's theory was often used to dispossess the land of First Peoples as they did not 'toil the land' as the colonialists thought they should. You will see this theory come up in court cases quite often - has this person put work into the land?


'Life, liberty and property' (Locke's catch-cry): [in US and the pursuit of happiness]


Note Locke's labour theory was also used to attack private property, as in a capitalist system the owners of land/capital were able to deprive workers of the fruits of their labour.

3. 'Personhood' theories (eg Hegel) - self-realisation through external expression of will and personality o

Kant and Hegel - 'means by which people could express their individual will and personality' - private property essential for human freedom (SN

1.113, 87)


Recognition of property as a human right - Charter of Human rights and responsibilities. Section 20 - must not be deprived of property otherwise than in accordance with the law.


self-realisation through external expression of will and personality. Private property seen as essential for human freedom. Vic CHRR - have a right not to be deprived of property, property rights is a human right according to this! Taken to an extreme people should have the right to sell themselves into slavery (Nozick).


private property is a means by which people can express their individual will and personality. "Willing" the thing to be his/hers and appropriating it (with/without consent - Kant/Hegel had different views on this). Idea is that private property is essential for human freedom.

4. Utilitarianism (eg Bentham) - incentive effects of property promote aggregate welfare o

incentive effects of property promote aggregate welfare. Minimise harm, maximise good.


The greatest good for the greatest number.


Private property is good because if we can exercise control of resources it gives us an incentive to do so productively, and this increases aggregate overall welfare for everyone.


Utilitarianism was later used to oppose the distribution of wealth in capitalist society (eg a small number hold most resources).


"private property facilitated human happiness by creating an incentive for thrift and industry". Welfare of society is increased by wealth creation. This was thought to mean the benefits of private property outweighed the suffering created by inequality.


Note that utilitarianism was also used to attack the idea of private property, since it could be argued that since men are equal in their needs, communism (equal distribution of wealth) would achieve the greatest good for the greatest number.

5. Economic efficiency theory (eg Posner) - in order to maximise efficiency/wealth of society property rights should be:

1. Universal o

anything that can be owned or controlled should be. If you have private rights, people have the incentive to work those things up to make profit. So everything possible should be private property. Some exceptions where a

resource is so plentiful that everyone can consume as much as he wants without reducing consumption by anyone elseeg sunlight is something that cannot be held universally. However this is imperfect - eg can deprive someone on their own land of sunlight by blocking out the sun with a larger building!

2. Exclusive o

why would a farmer sow his/her corn if Farmer B can just come along and reap what Farmer A has sown?


If not exclusive, this removes the incentive to tend t the land

3. Transferable o

you can pass the rights on to others. Gift/sell/lease as long as you can move it on.


Need free exchange - eg Farmer B may be able to farm the land more productively than A and A may wish to sell as cannot utilise it fully. This ensures resources are shifted to their most valuable uses.

Posner argues we need private property rights to encourage economic efficiency. Property is a means of generating wealth - wealth creation. The greater the ability to control resources, the greater the opportunity to create wealth.Systems of common property may lead to waste: if all can use the land then incentive for farmers to increase gains by putting more cows on the land, will lead yo over-use and deterioration of land. (SN 1.118) Does common property always result in overuse? In some societies laws prevent this

Criticisms of Posner When you have unequal distribution of resources may not necessarily lead to increased aggregate welfare. (1.121) [Argument against private property] Those who own capital waste money and resources (eg spending huge amounts on a single dinner, a evening frock, while a workman cannot send his children to school adequately fed). The wrong commodities are produced and those produced are distributed without regard to social urgency. - LaskiOr the private property can just be used to get more profits for particular people, not others

Characteristics of property (second order theory) The characteristics Ownership (the ultimate right other than Crown rights) of an object generally includes the right:To use: can use in any way you want. However this is not unrestricted. On land - you can prevent people coming on racist/sexist conditions. Can't cause a nuisance.


To exclude others from the thing: there are restrictions on this eg can't exclude certain state organisations (eg police) in certain casesTo alienate: ie to dispose of one's interest in the thing eg selling, gifting. Not a feature of all property rights - eg Native Title cannot be alienated other than to the Crown.

Note overlap with Posner's theories here. These are characteristic and all may not always be present Milirrpum v Nabalco (1971): legal meaning of property, characteristics Case regarding the legal meaning of property.

? Members of Yolgnu people at Yirrkala claimed mining lease interfered with their native title rights which existed from time immemorial
? Their claim was rejected by Blackburn J (NT Sup Crt)

Concerned the Gove Peninsula. Yolgnu claimed mining lease interfered with their Native Title which had existed from time immemorial. Their claim was rejected by Blackburn J (NTSC). Blackburn J's Decision
? Held: Although Ps had proved an established recognisable system of law existed, the usage of the land did not fall within our system of interests which we ascribe as private property
? Plaintiffs had a right along with members of other clans to use and enjoy the land, but no right to exclude others or to alienate

Note: Cf 2+3 (justfications for PY - labour theory and self-realisation) - many first Australians believe they belong to the land rather than that the land belongs to them: T&D

1.3 Blackburn denied the claim because although Y showed they had a system of law, the usage of the land did not fall within the CL system of interests which we ascribe as private property. He went through the three criteria: ticked on criteria 1 (to use) but failed to have rights under criteria 2 (exclude others) and 3 (alienate the land). As a result the proprietary interest was not recognised. (1.8) Note that Blackburn J emphasised that not all 3 of the characteristics mentioned have to be present in every case for a property right to exist. (3.88) Held that there was a right to exclude only from sites of ritual/sacred sites.

As a single judge of NTSC: the courts rarely recognise new proprietary interests. This would be for the ultimate appellate court (HCA) to recognise.

Mabo v Queensland (No. 2) (1992)
? A group of Murray Islanders sought a declaration that they had land rights under customary law that survived acquisition of sovereignty
? High Court said that the common law that applies in settled colonies recognises the rights of the indigenous peoples to their land

Sought declaration lands rights survived acquisition of sovereignty. HCA said CL recognised the rights of indigenous people to their land.Native title recognised.Terra nullius rejected.Native title need not include a right of exclusive possession.NT inalienable except to the Crown.

Could be extinguished by crown but was recognised by CL. Court at pains to stress the rights inalienable. 'Although NT exists, it exists by the laws of the clan. Not a creature of the CL, although recognised by the CL.' This is different to rights such as leasehold interests. Mabo v Queensland
? Austn common law recognises native title
? Court rejected the terra nullius doctrine
? Native title need not include a right of exclusive possession.
? NT was inalienable, except to the Crown
? The specific content of native title depended on indigenous customary law
? Native title rights can be extinguished by the Crown, in a piecemeal way

Notes: Crown acquired radical title - gives the Crown ownership of land only if there are no other owners at the time of acquisition of sovereignty Native title, though recognised by the common law is not an institution of the common law and it is not alienable by the common law. Its alienability depends on the laws from which it is derived. If alienation of a right or interest in land is a mere matter of the custom observed

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