Session 7

European institutions and comparative international systems - 1

European inst. and comp. inter. Systems – Property Rights

Definitions
 Property is concerned with the ownership of objects. For example,
property is concerned with the ownership of land and of cars.

Concepts
Rights
 Real Right (property): A real right is a right in or over an identifiable asset
or fund of assets.
 Rights ad rem: Rights ad rem are claims to an asset made by one who has
no existing real right, merely a personal right to have the asset delivered
or transferred to him.
 Purely personal Right (obligation): A Purely Personal Rights is one which
does not involve the delivery or transfer to the oblige of ad identified
asset or funds of assets but is to be satisfied by the obligor’s personal
performance in some other way, such as payment of a debt or damages
from his general assets.
Property Rights
 Personal property is the opposite of real property.
 Personal property divdes into two groups
o (1) tangible movables (goods and money)
o (2) intangibles movbles (IP rights)
 Real property cannot be moved but personal property can. Underlying
the legal concept of property is the principle that it is capable of being
owned by anyone.
Property and Possession
 Private property is the right to possess and use material resources within
legally defined limits.
 The right to private property is a bundle of rights, not a single one.
 The right to possesss private property includes having exclusive physical
control of it:
o Deriving income from it
o Holding it without any time limit
 Session 7
European institutions and comparative international systems - 2

o Having legal protection against its expropriation, theft or

unwanted destruction.
 Jean-Jacques Rousseau (Social Contract)
o ‘Possession’ is understood here as a purely descriptive relation
between the possessor and the thing possessed, while
‘ownership’ is understood as a normative concept. Ownership,
then, is entitlement to possession, which is to say, entitlement to
use the thing oneself and to exclude others from using it.
Ownership is also transferable, being a set of alienable rights.
 Ownership: Owner has the normative authority to do these
things.
Importance of private property
 The right to private property is the right to have and control the use of
resources individuals require for satisfying their needs.
o The justification of this right is that it serves everyone’s interest.
Since a good society must protect its members’ well-being, and
since the right to private property is essential for their well-being,
a good society provides legal protection for that right.
 Theory of private property
o The best-known defences of private property in contemporary
philosophy, those of Locke and Nozick, start with some version of
the thesis of self ownership and work from it to a defines of
private property in general, their strategy being to show that if as
self-owners we own our own labour, then we must also have a
right to the fruits of our labour.
 Justifying the existence of property rights
o Right to exclude: Who is excluded and from what depends on what
the occupant wants to do with his property.
o Marxist theories argue that property is a form of social relation
and ‘property rights are the legal form of ownership’. Marx’s
theoretical system of property rights consists of a series of
propositions: (1) property right is a legal representation of
ownership relations; (2) property and property rights have their
own history and have assumed different forms; and, (3) property
rights consist of various legal rights in relation to property.