On the Concept of Ownership

I have long and often encountered discussion that implicitly or explicitly involves notions of property or of ownership, which discussion is rendered incoherent from a failure to consider what it means for something to be property, what it means to own something.

Some confusion arises because we have come often to use the word property casually to mean an object (physical or more abstract) to which some sort of ownership may apply, without our considering whether the object is well conceptualized for purposes of considering property rights,[1] and without considering that actual ownership associated with that object might be distributed in some complicated ways amongst multiple parties.

One might, for some reason, associate a plot of land with an object imagined as beginning at the center of the Earth and extending to some sort of limits of the atmosphere (or beyond); from such an association, and then from a presumption that the whole object were property, farmers were once known to shoot at airplanes as trespassing vehicles. Yet other folk would assert that owning a plot of land as such only entitled one to control things to lesser depths and heights, in which case the rights could be associated with a smaller object, representing a subobject as it were. One person might be thought to have the right to farm the aforementioned land, and another to extract its mineral resources so long as he didn’t thereby interfere with the farming. Possibly others would claim peculiar easements, allowing them to travel through some or all of the object without thereby trespassing. There might be purported rights entitling still others to flows of resources such water, air, and electromagnetic radiation travelling through the object. In the case of sunlight (an electromagnetic radiation), the rights would typically be presumed to involve only some space above the soil, and the farmer might both have claims against her neighbors doing things that reduced her sunlight and be constrained by similar claims for her neighbors.

If we are thinking in terms of one object, and then change to thinking of an object within it, previously relevant rights of ownership may become irrelevant. If we instead think in terms of an object of which our original object is but a part, then new claims may become relevant. Two objects, neither of which is completely contained in the other, may share some third object as a part; so that any thorough consideration of ownership involving these two objects containing the third may involve rights that are literally identical and rights that are different. The minimal object relevant to describe some asserted set of property rights might not be sufficient to describe other rights none-the-less associated with that object. The minimal object in each of the previously mentioned cases (of farming, of easement, of mineral extraction, and of unobstructed resource flow) is somewhat different from the minimal object in the other cases.

A farmer who somehow forfeits her right not to have sunlight artificially obstructed may still be imagined to own the plot of land on which she grew her crops, yet she doesn’t own what once she owned. Likewise, a house-holder who somehow surrenders his right to come and go from the plot on which the house sits doesn’t own what once he owned. And, though it would perhaps seem very unsual, one might imagine these rights not transformed into claims for those who have prior rights to surrounding spaces, but instead coming into possession of third parties. For example, perhaps I speculate that I can buy whatever rights I need to build a skyscraper, on the assumption that I can buy a right to block the sunlight to a neighboring farm; I could purchase that latter right first, then discover that I am thwarted as to other purchases. This might work nicely for the farmer, but she no longer has a right that she once had; she no longer owns something that she once owned.

We can still express what things are owned as if they are objects, but we must then select our objects to match our rights of use. And our discourse can become strained and unnatural if we insist on always treating the thing owned as a distinct object rather than as a right of use. For example, if Timo is exclusively entitled to inhabit a cabin in the Winter and james is likewise entitled to inhabit it in the Summer, and we must express them as owning distinct objects, then we must treat the cabin in Winter as one object and the cabin in Summer as another. Indeed, we will surely have to be far more contrived in our construction of objects to account for what the two jointly do not own of the cabin! On the other hand, we can say that each has a right to use the cabin in some way without necessarily specifying how other rights of use are distributed; the concept of the cabin is available without first settling questions of ownership.

I don’t propose that we generally stop using the word property as in the ordinary sense of a piece of property, merely that we understand that this everyday use may be misleading. Nor would I suggest that we should somehow stop thinking in terms of objects when we carefully consider ownership. But we must be alert to the fact that our choice of objects with which to think is largely taxonomic and to some degree arbitrary, and we should not take results that are no more than artefacts of that taxonomy as anything more profound.

In fact, the right of use may be recognized as itself an object of an abstract sort, but the right to use a right of use is not distinct from simply that right of use, and thus cannot be dissociated from it.[1.5]

My laboring of the relationship of ownership to objects and their uses isn’t quibbling nor pirouetting. People who imagine an object as such to be owned tend all too often to imagine it somehow being owned beyond any of its various possible uses. They thus imagine that it can remain the property of one person or group even as another party — most often those in control of the state — appropriate its use, and even as this second party seizes every right of use. It then also becomes absurdly thinkable that one person might retain every right of use that she had, associated with an object, yet transfer ownership to some other party. Ownership would be reduced to absolutely nothing more than something such as a formal title.

When the state regulates property, it is taking rights of use and hence ownership. This transfer is relevant to questions of compensation (as in the case of the guarantees of the Fifth Amendment to the US Constitution[2]), and of whether state regulation of the means of production is a form of socialism.

[1] The word object comes from the Latin ob-iacere, meaning throw-before, and referred originally to that thrown before the mind. What we now call objects are, however, mental organizations of what is thrown before us. Thus, to use a classic example, we can talk about my hand as an object, and my fist as an object; they seem to be the same object, yet only sometimes. (We may still, in good conscience, use the word objective for perceptible external reality. And extending it to include unperceived and imperceptible external reality shouldn’t cause more than mild discomfort; the rightful demands of etymology are not unlimited.)

[1.5] This paragraph was added on 24 May.

[2] That Amendment (with an underscore by me) reads

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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