Property and Social Relations

From Title to Entitlement

Joseph William Singer

Property rights serve human values. They are recognized to that end, and are limited by it.

—Chief Justice Joseph Weintraub, Supreme Court of New Jersey

The whole world seems to be embracing private property as a form of economic and political organization. What are we getting ourselves into? Property rights regulate relations among people by distributing powers to control valued resources. Property rights often involve bundles of particular entitlements. Among the most important of these entitlements are the privilege to use property, the right to exclude nonowners, the power to transfer property, and immunity from nonconsensual harm or loss. It is often assumed that these rights naturally go together and that a property system based on them is feasible. Yet, if property involves a bundle of rights, it is not at all clear that all the sticks in the bundle fit comfortably together.

Liberties such as the privilege to use or develop resources as one sees fit may conflict with rights to be secure from nonconsensual invasion or loss; uses of property that further the owner's interests may harm others or interfere with their legitimate expectations (Kennedy 1976). The owner's right to exclude and power to transfer may conflict with and be limited by the public's rights of access to the market without discrimination based on race or sex or disability. If the individual entitlements that constitute ownership are seen as a family of rights of a certain class, it can also be seen that the members of the family do not necessarily get along with each other all of the time. How should these inevitable conflicts be resolved?

In analyzing such questions, judges, policymakers, and scholars appeal, more or less unconsciously, to a conception of property, the classical version of which focuses on the concepts of title and ownership and presumes the owner's full control of specific valued resources, with state backing. This conception remains powerful and exerts substantial determinative force in adjudicating and developing the rules of property law. The legal realists criticized the classical conception and argued that we should disaggregate property rights into their component parts and discuss each particular entitlement separately. Such a view presumes no utility for the general concept of property. Because property is a fixed feature of our way of talking about the world, it is important that we understand it rather than discard the general concept entirely.

We should recognize that traditional property concepts perform a number of rhetorical functions. First, common discourse often identifies a particular person as the owner even when property rights have been split or distributed among several (or many) persons. In other words, the ownership concept structures legal doctrines in a rule-exception format to the effect that owners win unless specified conditions are established. Second, the property concept sometimes creates an assumption that certain sets of rights are bundled or consolidated and must be owned by the same person. Third, calling something a property right often reflects an intuition that the right in question implicates a strong moral claim to immunity from nonconsensual loss or harm and places a heavy burden on those seeking to regulate or limit the property right. Fourth, the idea of property rights often creates a perception that there should be a strong presumption that the right in question is alienable in the marketplace, and conversely, that nonalienable interests do not count as property rights.

I will present and criticize the classical conception of property. I will then develop a new model of property that conceptualizes it as a social system composed of entitlements which shape and are shaped by social relationships. I will argue that the traditional classical conception of property centered around absolute control of an owner should be replaced by some version of this social relations model.

The Classical Conception of Property Reconsidered

The classical view of property is premised on the notion that property rights identify a private owner who has title to a set of valued resources with a presumption of full power over those resources. The property may be subject to some state regulation, but this regulation always alters some baseline property right of the titleholder. This view presumes it is always possible to identify some person as the titleholder, and that, in the absence of a contract or specific rule of law to the contrary, the titleholder is an owner who possesses the full bundle of privileges, rights, powers, and immunities that accompany fee simple title to property (Singer 1982). The concept of ownership sometimes refers to the consolidation of these rights in the same person, even though it is often the case that most of an owner's rights have been transferred to others. The image underlying ownership is absolute power of the owner within rigidly defined spatial boundaries.

Thus, the classical conception of ownership assumes consolidated rights and a single, identifiable owner of those rights who is identifiable by formal title rather than by informal relations or moral claims. It also assumes rigid, permanent rights of absolute control conceptualized in terms of boundaries that protect the owner from nonowners by granting the owner the absolute power to exclude nonowners, and the full power to transfer those rights completely or partially on such terms as the owner may choose.

The classical conception is furthermore premised on widely shared norms of promoting autonomy, security, and privacy. Yet the classical model of property is distorted and misleading both because it is descriptively inaccurate and because it is normatively flawed (Underkuffler 1990). The classical model misdescribes the normal functioning of private property systems by vastly oversimplifying both the kinds of property rights that exist and the rules governing the exercise of those rights. It also distorts moral judgment by hiding from consciousness relevant moral choices about alternative possible property regimes.

The classical view assumes that (a) most rights...