property specifically, rather than other forms. For example, the right to bequeath an owned holding to another person after death is very often included as a core part of the concept. Yet the ascription of this capacity as a definitive feature of property rights would seem to foreclose, or at the least limit, certain normative questions about the legitimacy of the state acting to tax or redistribute things that are owned. If having the right to bequeath my property is part of what it means to own something, then the case for taxing the transfer becomes a much harder sell. On the other hand, any decision to deny that the concept of property includes the power to bequeath – and instead assume that individuals do not have such rights to hold against the redistributive authority of the state – appears just as guilty of smuggling an equivalent normative claim into an austerely analytic definition. If the right to bequeath property is not part of what it means to own it, there seems no obvious argument against its taxation or even confiscation following the owner’s death.3 Questions about the meaning of private property thus inescapably intrude on questions about its fair distribution. In doing so, they invite consideration of other political concepts, such as freedom, justice, and equality, which will make various appearances during our subsequent discussions.
There is then no neat separation between conceptual definition and normative theorising, and this is particularly apparent when it comes to the most perennially contested ideas in political thought. We nevertheless do need to settle on some basic working definition of private property as a social institution, if only to distinguish it from other concepts, such as freedom (and gorgonzola). Merely pointing out the politically problematic nature of ascribing meaning to everyday concepts is surely not the only role that political theory can play in our discussions of them. While it cannot provide any detached or even final adjudication between rival contestations of the authoritative meanings of normative concepts, political theorising can point us towards grounds for endorsing some understandings over others, by interrogating both the premises such theories depend upon and the implications that they entail. The theories and arguments selected for discussion in this book represent a desire to both own up to the necessary mingling of conceptual analysis with the normative claims involved in substantive political theory, while also making the case for some accounts of property being more attractive than others. The material covered herein serves this dual function because it is, for the most part, historical in nature.
An historical approach to the concept of property
There are many good reasons to study the history of political ideas. Two of them are particularly germane to the discussion of key concepts. On the one hand, the history of ideas impresses the sheer contingency and contestability of our political inheritance upon us. It indicates that others have construed the concepts that define our civic debates as having different meanings and implications in divergent contexts. On the other hand, the history of ideas also reminds of us of the perennial nature of political debate. It reveals that conceptual contestations in alien historical contexts often concern the same ideas that animate our own political discussions. The upshot of these two contrasting but entwined phenomena (the contingent and the perennial) is that they provide the student of the history of ideas with a rich treasure of fascinating arguments – some familiar and some alien to our civic culture – about the concepts that we deploy in our contemporary political conversations.
An historical approach to property also, in my view, allows us to bypass a contemporary philosophical dispute concerning the nature of property as a concept. This dispute turns on whether the concept of property has any essential characteristics. Some theorists argue that there is a stable and definite conceptual core to the idea of property. James Penner, for instance, suggests that the idea of exclusive use provides the ‘formal essence of the right’ to own property. According to this understanding, ‘the right to property is a right to exclude others from things which is grounded by the interest we have in the use of things’ (Penner 1997: 71, emphasis suppressed). As Penner points out, the concepts of exclusion and use often come together through ownership rights: we are accustomed to thinking of private property as implying our legitimate need or desire to use a particular thing and, correspondingly, requiring that we are able to exclude others from doing so. This combination of exclusion and use does not mean that our ownership rights obtain only in our particular occasions of use – our furniture does not cease belonging to us when we are not immediately using it. The idea of exclusive use signals instead the connection between our rightfully owned property and our purposiveness and intentionality. It captures the fact that property is valuable to us because of the role it plays in our lives, as part of our long-term personal projects. On this construal, property confers a series of benefits on its owner through the exercise of certain liberties. She can, without interference, share, transfer, or derive benefit from, the property in question, as well as enter into various forms of contract concerning it.
We can immediately see that this account of the essential meaning of property is quite explicitly at once conceptual and normative: it makes plain that the view advanced about the nature of property (exclusion) derives from its justifiable purpose (the interests served by its use). The important point is, however, that property is understood here as a discernible and unified idea with a definitive conceptual core. This ‘unified thesis’, and the analysis that underpins it, has some clear intuitive purchase – it seems to describe successfully how we might think of property in our everyday lives, when we stop and consider it. It seems easy to get our heads around the notion that the right to a chair is explained via the benefits involved in being able to use it however we please and, furthermore, that the practical manifestation of this benefit is my entitlement to control the exclusion of others from interfering with it. Despite its intuitive pull, however, the view of property as having an essential conceptual core – whether defined by exclusive use or anything else – has fallen into some measure of scholarly disrepute in recent years.
The most influential way of thinking about property in contemporary legal philosophy instead abandons altogether the view of it as a singular concept, and understands it instead to be a ‘bundle’ of discrete and separable legal relations. There have been different ways of conceiving exactly what such a bundle entails, but the basic idea is that we can endeavour to separate the various sticks that comprise it and, in so doing, acquire a better understanding of the nature of the legal and social phenomena at issue. Proponents of the bundle approach claim that it clears away what they regard as a fog of conflation that blinds political and legal discussion of the subject. To appreciate the thinking behind the bundle theory, we need to step back a bit and go over some of the key features of rights themselves. Beyond their expressive, political purposes – which might include the recognition of our dignity or moral standing in a community – rights serve to enable and prohibit our freedoms, making some actions permissible and others impermissible. In the context of property, this function seems straightforward and relates back to our interest in having systematic and permanent protection for specific resources, which become our holdings rather than those of anyone else.
Perhaps even more fundamental to the understanding of rights is their relational nature. Rights delineate realms of permissible action between individuals and therefore make sense only in a social context: we hold rights against others. Property rights govern relations between persons (and corporations) rather than between persons (and corporations) and specific things. In a world with only one person (but lots of things) the idea of property rights would presumably be superfluous because the relevant relational context would not exist: there would be no other individual against whom to hold rights. This aspect of rights can help us be wary of some of the confusing language that we are prone to use when talking about ownership. We might talk of the right I have over my magnifying glass, but it is a mistake to believe that this right is somehow held against the inanimate object, rather than against the other agents within my socio-legal sphere.
Not all of the conventional legal relations traditionally associated with the concept of property ownership are, strictly speaking, rights. Philosophers generally follow Wesley Hohfeld’s (1919) understanding of rights as claims, which are characterised by their correlative concept, duties. Rights of this sort imply duties held by others. If the right I have
