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Property - Simon's Politics | Everything on this page is Simon's personal politics, not law. My politics are municipalist-Green, near Utopian. |
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(1) Property is an Instinct
The origins of 'property' are quite, quite primal - not arising with the much later advent of 'money' or 'capitalism'. They extend aeons back - well before legal systems, and - in my opinion - even well before humans arose as a separate species. It's essence is a raw, disputative and tripolar relationship between a being (animal or human), a physical thing or area - and other beings. We know this concept in other contexts as 'territoriality'.
We humans, with our species-specific needs and prejudices, tend to assume it is solely a human concept - breaking down into the legally-compatible concepts of 'chattel' and 'real' property. While those sub-categories are fine for modern-day humans, the primal 'property' instinct was, and still is, much more basic - manifest anytime animals fought for food, nesting sites, hunting areas, water holes or all the good things necessary to survive in this harsh world.
One would not be mistating things to describe this concept as an 'instinct'. But to claim that humans have 'transcended' this instinct would be to commit human prejudice, as 'instinct' is entirely suitable as a term for us as well. It is a term of suitable depth and profundity given that there are few - if any - concepts of greater human significance than that of 'property', given that we assign ownership to practically everything (ie. land and objects) around us - and even to pure concepts such as goodwill and intellectual property. The deepest that I have seen humans plumb while exploring the deep qualitatively-distinct nature of property as a unique concept is to characterize it as a 'reified concept' (sometimes 'concretized') - but the pre-existing term of 'instinct' is quite adequate - even though it comes from an unexpected (animal) quarter.
I offer that property, in it's essence - is quite reasonably categorized as an 'instinct'. If you doubt this, consider your reaction when you discover your car stolen or being confronted by a trespasser in your home. Your reaction will be - I think undeniably - instinctive and visceral in nature.
(2) Ownership Characterized
As 'property' is the abstract descriptor of this essentially-disputative relationship, 'ownership' is the coveted status that the resolution of it grants to the victor. You don't have to hear a bear roar 'this is mine!' when defending the deer corpse from an interloping cougar to known that they view it as 'their's', and the aggressor as a 'thief'. Nor for that matter does the situation differ fundamentally when the homeowner picks up a baseball bat for fear of a late-night trespasser.
The nature of property is that of 'exclusive possession': ie. 'this is mine, not yours'.
(3) Human 'Property' Forms
While - with non-human animals, the property relationship hasn't evolved further, it has with humans. Property with humans is far more pervasive in both the degree of it's social role and it's vigour. With rare exceptions - with both places and things, and wherever you are - if you point to different directions around you, each time asking yourself: 'Who owns that?', you will be able to answer it with certainty (sometimes after a bit of research, but you will be able to). The answer will always be the identity of someone (or some corporate or government entity). It is truly a challenge to find something that is not owned - even if you point up, the air is notionally owned by the land-owner under it. Even oceans are subject to 200-mile country zoning, and it took a treaty to stop them from engaging in a further international 'land' grab [United Nations Convention on the Law of the Sea].
Other animals are not so property-obsessed. The kestrel pair loses interest in that old elm trunk after the chicks are fledged, the wolves don't object as strenuously over trespass by the neighbouring pack when game is plentiful. Property is more central to humans than to other animals [more on this when we get to 'Money'].
In human terms property has three forms: real, chattel and intellectual (for this historical consideration we can set aside intellectual property as a recent solely-human development - leaving us with 'real' and 'chattel' property).
In addition to the universal animal sense of 'territory' - the obvious precursor of 'real property', the human conceptual development of 'chattel property' is - I think - very obviously tied to tool-use, an aspect of our transcendently superior dexterity. Tools, useful goods and similar portable 'stuff' are the first 'chattels', or movable property - a concept that humans can I think rightfully claim as their own. Other animals don't have the same ability for tool-making, nor any storage ability for perishable goods.
A further inevitable development is a growing accumulation of favorite tools, and goods, that the human wishes to use day after day - clothing, water scoops, knives, spears - the remains of that deer that is good for another week - and more. While portability is useful on an individual-tool (or good) basis - is not so handy on an 'all-your-things' basis. In addition to the pre-existing needs that a safe, warm and resource-rich land area satisfies - humans now find themselves with an additional 'need' - that of a secure location to store their cherished tools and useful goods - ie. 'a place to keep their stuff'.
This secure storage need compounds the profound attraction of a secure territory, though a 'real property territory' is - unlike chattel property - a concept that humans cannot lay claim to originating, and which predates chattel property by aeons.
In summary, and while the precise details of this evolution may vary, the present reality is undeniable - this is the history of the 'home' and of one's chattel 'stuff'. This precious, secure space - this 'home', and it's associated chattel amenities, is obviously the origin of the instinctual concept we call 'property'. It reaches this instinctual status of 'reification' (aka concretization) purely as a matter of it's pervasive nature. It has been with us for so long, is so valuable for us, and can give rise to such defensive and acquisitional intensity - that, over time, it - as a concept - has reached such profundity that it's never far from us in terms of our daily activities and conceptions.
Indeed it would be strange if it were anything but categorically of a different quality than all other concepts. The characterization of property as an 'instinct' is entirely apt to it's reality.
(4) Modern Logistics of Ownership
(a) Overview
In my mind, the biggest recent historical development of human property is it's 'legalization' (aka 'codification') - separately in both chattel and real (land) forms. While money is certainly a dominant form of property, I will leave that to separate future essays.
By way of explanation it's interesting to note that there are relatively few court disputes over 'who owns it?'. I attribute this to the efficiency and efficacy of the methods we use to 'prove' ownership - and thus avoid such disputes. The importance of evidentiary 'proof' - rather than physical might - to enforce one's property entitlement is plain evidence of the 'legalization' of the property instinct.
(b) Chattel Property
With chattel property the typical proof methods are two-fold (or some combination of these): possession and documentation (ie. receipts). The adage 'possession is 9/10 of the law' when it comes to chattel property is quite apt - people 'guard' their chattel entitlements physically by leaving them in a secure and controlled space (ie. at home behind locked doors). When possession fails there is commonly some documentary record (paper or electronic) of purchase, either held by the owner or in vendor records.
The pervasive 'duplication' of documentation regarding ownership trades is a feature of two things - both legal in nature. Firstly - the legalization of property (where, when leaving the store and being challenged that 'did you pay for that?', you show your receipt). Secondly - the necessities of various taxation systems which support the government, the executive arm of our legal systems. While the receipt 'paper' doesn't directly proven ownership, it is rather proof of the last trading of the item - which is just as good for this purpose.
(c) Real Property
As to real property (ie. land and buildings), in most western countries that is achieved by formal government registration. In Canada, provincial land title registries no doubt minimize (perhaps even effectively eliminate) property ownership disputes . There are mortgage default cases, APS (Agreements of Purchase and Sale) contract cases, easement cases and the odd adverse possession court case (which are title disputes in nature) - but rarely, if ever, are there 'ownership' (title) court cases - nor are there many boundary disputes.
'Real property' and 'ownership' (ie. the state of oneself 'having' property) are not defined in the expected real property statute law. Neither Ontario's Land Titles Act, the Registry Act, the Commercial Tenancies Act nor the Property and Civil Rights Act have anything useful to say on the subject - they just use terms like 'own' or 'ownership' as though they are understood. It's the same with chattel property. There are topic-specific definitions in such legal areas as criminal, income tax or insolvency law, but they are legal-area specific.
(5) Summary
Finding nothing definitive in the statutes, this leaves defining both forms of property to the 'common law' (ie. judge-made law). For a concept of such desperate centrality in our society, this fact plainly supports the 'instinct' nature of property and how our culture 'just knows' viscerally what it is, with little need for debate.
In sum though, it's plain to me that both forms of property precede it's legal codification by a matter of ages. The legal concept of 'property' is a late, late comer in terms of it's role in human history, and - when it did arise - it was almost an afterthought, not requiring any further significant common law definition.
That said, I have found that legally-defining property as a right of 'exclusive possession' to be adequate for most legal purposes. Some readers may recognize this as the defining characteristic of a landlord and tenant 'lease', which I don't have any disagreement with - but leases are time-limited, while ownership is indefinite - so leases are temporary contractual 'exclusive possession', while ownership is indefinite 'exclusive possession'.
More to Come: There's undoubtedly more to write about 'property', particularly in it's dominant 'money' form (which I address as a separate topic). That's to come in future.
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