Topics, Philosophers, & Theorists Flashcards
(33 cards)
Hobbes
” . . . the life of man, solitary, poor, nasty, brutish, and short.” Property = order
Locke
Liberty of Owner (one who labors) “His labour hath taken it out of the hands of Nature, where it was common, and belong’d equally to all her Children, and hath thereby appropriated it to himself.” –Man has an equal right to the fruits of his own labor. –Labor increases the value of property. –Unlimited amount of property is a natural right.
Rousseau
Democracy & Community Participation “From the cultivation of land, its division necessarily followed; and from property once recognized, the first rules of justice.” –Against unlimited amount of property (deprives others) –Man was happy working for his own needs, then community led to hoarding, equality disappeared, property was introduced, labor became necessary. –Property arose from manual labor. –There is inequality because men’s talents are unequal. –For fear of reprisal, those with property set up government to protect themselves by turning their attackers into their guards –Property that a man could reasonably work on by himself is a sacred right. –Laws and society destroy natural freedom
Bentham
Efficiency “To lay down as a principle that all men ought to enjoy a perfect equality of rights, would be, by a necessary connection of consequences, to render all legislation impossible” –The market assesses utility for society. –“Utility”, the greatest happiness for the greatest number, and this requires the institution of unequal property. * Happiness consists in four subordinate ends: 1. Security (most important) 2. Subsistence 3. Equality 4. Abundance * Evils resulting from violations of property: 1. Evil of Non-Possession 2. Pain of Losing 3. Fear of Losing 4. Deadening of Industry
Marx
Equality – Labor is a form of property; the only form that it cannot be separated from its owner/producer. – The problem is exploitation, not property; some people will take the labor of others to create value for themselves.
Radin
Relationships between Person and Object (subjective value) –People become bound up with things, both good and bad to be materialistic. –Certain objects are almost part of themselves. –One may gauge the significance of someone’s relationship with an object by the pain that would be occasioned by its loss. –Identity also tied to community (lose community=lose identity)
Freud
Floodgates Tool –His view of the communists: the right to own property is an instrument of aggression; but, if we take this right away we will still have the aggression.
Custom becomes . . . Community becomes . . .
Commodity. Contract.
2 Abraham Axioms of Property
- Can only sell as much as you own. 2. Property rights are not absolute, existing only relative to others.
The Need for Justificatory Theories
- Property is a right in the sense of an enforceable claim
- While its enforceability is what makes it a legal right, the enforceability depends on a society’s belief that it is a moral right
Theory of Property upon Discovery of New Lands
European discoverer acquired the right of pre-emption:
- The right to acquire title to soil from the natives in the area by purchase–if the natives were willing to sell–or by conquest.
- The right to succeed the natives in occupancy of the soil if they should voluntarily leave the country or become extinct.
Belligerent Occupation
–Military occupation is actually the self-defense occupation of a territory –What converts a military occupation into conquest is the insertion of civilians into the occupation for permanent residence
Possessio Pedis
“Foothold”–Exclusive dominion & control “It is clearly established, both by reason and authority, that the acts of ownership and dominion over land which may be sufficient to constitute and actual possession, very according to the condition, size and locality of the tract”
ACQUIRING OWNERSHIP FROM THE COMMONS AND OTHERS AND IDEOLOGY THEREOF
Applicable cases:
Brumagim v. Bradshaw ->turn cattle in the Potrero
- do enough labor to provide notice of dominion
- Possessio Pedis
Relativity of Title
You have to show that you are entitled to the land, not that the other person is NOT entitled to it.
Demsetz–In a world where the cost of exchanging property rights and policing the rights are zero, there are three implications:
- The value of all harmful and beneficial effects of uses of property rights will be brought to bear on their owners;
- Property right will therefore be used efficiently
- Output will be independent of distribution of property rights. Changes in the distribution of wealth will affect only demand patterns.
Posner–Property rights are never exclusive, when it comes to relative values of competing uses:
Whatever the relative values of competing uses, it seems that the initial assignment of legal rights does not affect which use ultimately prevails. The efficient/value maximizing use will be chosen, whichever party is granted legal right.
Coase Theorem–Preferred legal rule is . . .
The rule that minimizes the effects of transaction costs. In affect, if residents have the right to clean air, a factory should legally pay for the pollution.
Sword & Shield
Property rights can be used as a defense (shield) and as a means of attack (sword).
Rights v. Privilege
Rights are protected relationships. Privileges are protected actions. NO LONGER VALID. –Flemming v. Nestor
Feudal concept of property
Relationships among individuals concerning land constituted the basic fabric of medieval society, assigning wealth and power and shaping the system of government. The key to medieval society was the estate, a term derived from the word “status.” An individual’s status was defined by tenurial relations between grantors and grantees. “He who has land, is said to hold it rather than to own it.”
Right v. Duty
Right is a legally enforceable claim. Duty is a correlative of right, not to do or not to do something or there will be legal consequences. ALI
Gravity of Harm
Should consider:
- the extent of the harm involved
- the character of the harm
- the social value attached to the type of use or enjoyment invaded
- the suitability of the particular use and enjoyment to the character of the locality
- the burden on the person harmed of avoiding the harm
The Utility of Conduct
Factors to consider:
- social value that the law attaches to the purpose of the conduct
- the suitability of the conduct to character of locality
- the impracticability of preventing or avoiding the invasion
