CHAPTER 1
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 associated with property are ordinarily consolidated in the same owner and (b) that it is possible to determine who that owner is by reference to the title. In other words, the classical view presumes it is easy to tell who the titleholder is. But in many cases, this is not easy at all. When a house is subject to a mortgage, for example, some states in the United States grant title to the homeowner reserving a lien for the bank while other states grant title to the bank while granting the owner a mere "equity of redemption." When a couple divorces, title to the house may be shifted from husband to wife or vice versa, as part of the property division awarded by the court. Thus the formal titleholder's rights may be altered on divorce; it is not clear why one should not conceptualize the non-titleholding spouse as the owner of rights in the property, which can be confirmed by a property division on divorce.
Or consider who owns a corporation. We are accustomed to saying that the shareholders own it. Yet shareholders' rights have traditionally been extremely limited in the United States. Courts have strictly limited the ability of shareholders to interfere with the day-today management of the business. More fundamentally, courts have placed roadblocks in the way of shareholders attempting to present independent candidates for the board of directors or to communicate with other shareholders. It has taken a new movement in recent years to reassert the rights of shareholders as owners (Minow and Monks 1991). Moreover, recent statutes have authorized corporate boards of directors to take into account the interests of stakeholders other than the shareholders (such as workers, creditors, and the communities in which corporations operate) in formulating corporate policy (Singer 1993).
Title is important to the classical conception because of the presumption that owners ordinarily win disputes about use or control of property. If it is not easy to identify which of several claimants is the titleholder, it will be difficult to assign ownership rights and thus to adjudicate disputes concerning control of the property. Yet when rights over a particular resource or object of property have been divided among several persons, or when several persons have plausible claims to such rights, a simple, noncontroversial, morally defensible method for identifying the titleholder or owner is exactly what we lack.
Even if one could easily identify the titleholder, we must recognize that many disputes about property involve conflicts among titleholders. Consider land use disputes among neighbors. Property uses by one owner or titleholder that interfere with the legitimate interests of neighboring owners are adjudicated through nuisance law as well as through specific rules about particular types of interests. In these situations, the legal issue involves multiple titleholders whose property uses conflict. Such cases cannot reasonably be resolved or analyzed by reference to the concept of title.
In other cases, property rights in the same parcel of land have been divided by contract or law between two or more persons. If we observe the operation of private property systems, we see that full consideration of property rights in the same person is the exception rather than the rule; most property rights are shared or divided among several persons. Indeed, almost every interesting dispute about control of or access to property can be described as conflict between property holders or between conflicting property rights. Typical situations include relations between landlords and tenants, mortgagors and mortgagees, homeowners and lien holders, servitude or easement owners and subservient estates, present and future estate owners, parents and children, husbands and wives, testators and heirs, homeowners associations and unit owners, shareholders and managers, trustees of charitable foundations and their beneficiaries, employers and employees, creditors and debtors, buyers and sellers, bailors and bailees. In all of these cases, property rights in the same parcel of land or structure or resource have been divided among two or more parties.
When the owners of different rights in the same resource act in ways that impinge on each other's legally protected interests, we face the same problem present in nuisance cases—action by one owner that interferes with the use and enjoyment of another's property rights. In such cases, title and ownership are not helpful ways to conceptualize the dispute. Adjustment of the relationship between the parties is required.
Even if conventions exist to identify the owner or titleholder and even if no conflict of owners is involved, knowing who the owner is does not help us to adjudicate most disputes concerning property. I sometimes joke that most of the rules in my property casebook describe situations in which the owner loses (Singer 1997). Property owners' rights are often limited to promote the interests of nonowners. Consider public accommodations laws that prohibit businesses open to the public from excluding or segregating customers on the basis of race. Convention dictates that the business or individual who has title to the land or who is the lessee of the space is the owner and that customers—members of the public—are not called "owners." The most central right associated with property, according to tradition and current constitutional law, is the right to exclude. Yet federal and state statutes substantially limit the rights of the owner to exclude members of the public on an invidious basis such as race. This is not a minor glitch in the system. It was not until 1964 that federal law unambiguously prohibited racial discrimination in places of public accommodation, and even then the statute did not regulate most businesses open to the public.
The fact that property rights are often limited to promote the interests of other property owners or the public at large suggests the reason why the classical conception of property has distinct disadvantages from a moral point of view. The ownership model of property utterly fails to incorporate an understanding of property rights as inherently limited both by the property rights of others and by public policies designed to ensure that property rights are exercised in a manner compatible with the public good. It makes regulations of property appear inherently suspect. It presumes that when property rights are limited by government regulation, an evil has been effectuated that bears a heavy burden of justification. It places the burden of proof consistently in one direction. It has no vocabulary for describing or expressing certain types of property use as themselves inherently suspect. Nor can it adequately express the existence of conflicts between property owners.
Thus, for example, public accommodation laws appear to limit and interfere with property rights in order to promote equality. To justify them, we must explain why equality as a value justifies taking or interfering with established property rights. The classical conception of property suggests that all owners have rights to exclude nonowners with a few exceptions; business owners have the same rights as homeowners to determine whom they will admit to their property. An alternative model might presume that businesses generally held open to the public have effectively transferred some of their property rights to the public at large. Businesses open to the public are in the public world in a way that homes are not. They are public accommodations. This model suggests that property which is used in a way that affects the interests of nonowners or the community at large can be regulated in a way that responds to public policy concerns without impinging illegitimately on the owner's property rights.
By presuming that the basic question is one of identifying the owner and justifying limits on the owner's rights, the classical conception obscures the conflict of interests that should be adjudicated by reference to a moral theory. Further, it obscures the fact that property rights exist on both sides: the right of the store owner to exclude and the right of members of the public to enter public accommodations and to engage in contractual relationships to purchase property. Truthful recognition of the conflict is a prerequisite to an adequate moral judgment. A better approach would express the inherent tensions within both property law and theory, freeing for judgment the actual moral choices implicated in developing property law (Singer 1988).
The Social Relations Model
The legal realists correctly recognized that property rights can be and often are disaggregated. They were also correct in seeing property laws as beset by conflicting values and competing interests. Most important, they analyzed property rights in terms of human relationships rather than relations between persons and things. The legal realist view shifts attention from relations between people and things to relations among people with respect to the valued resource. The right to control property, after all, places duties on others not to interfere with that control. Similarly, the freedom to use property means that others may be vulnerable to the effects of one's property usage.
The legal realist model, however, was incomplete. I propose a conception of property based on social relations. This model reconceptualizes property as a social system composed of entitlements that shape the contours of social relationships. It involves, not relations between people and things, but among people, both at the level of society as a whole (the macro level) and in the context of particular relationships (the micro level). Four reasons, over and above the critiques just offered, warrant a new model. First, property rights can be bundled in different ways and multiple models exist for defining and controlling property relationships. Second, property rights must be understood as both contingent and contextually determined. Third, property law and property rights have an inescapable distributive component. Fourth, property law helps to structure and shape the contours of social relationships.
