Property Law

Property Law I & II


If you were asked to summarise what Property Law is about in two short points what are you likely to say?


Property is socially constructed. Property Law is about two things: justifications and the establishment of boundaries to property regarding both real property and personal property. These are two primary concerns about property. Firstly, who should get property rights and second, what should be the boundaries of the property. In the case of intangible properties, in particular, intellectual property, boundaries are not clearly defined so there must be a clear definition of boundaries of intangible property.



When you read Chapter 2 of Macdonald what are the two critical assertions made with respect to European feudalism? Can you elaborate on feudal forms of tenure?


During medieval times in England, feudalism found that all land in England is held sovereign, hence no person has absolute ownership of their land. In the case of a tenant failing to perform their obligations or obey rules then the land was forfeited. Under the English feudal system, several different forms of land tenure existed, each effectively a contract with differing rights and duties attached thereto. Such tenures could be either free-hold, signifying that they were hereditable or perpetual, or non-free where the tenancy terminated when the tenant died or at an earlier specified period.

In 1066, King William granted a large peice of land to the French nobility who had assisted him during a battle. There were two types of granting. Firstly the reward was granted to his supporters and second, the reward was given to those whom continued loyalty. The people who were granted land are called "tenants". Among those tenants were tenants-in-chief who could hold land directly from the Crown. In general, the tenants-in-chief, who retained their own land, granted parcels to their followers in return for service. This system was called "subinfeudation".[1]


What is the distinction between an allodial system of land holding and one that is underpinned by the doctrine of tenure?

The distinction between these two systems is whether the ownership is given to people (owner of land) or not. An Allodial system is an United States system which allows 'absolute in possession' ownership that is  free  from all restrictions except those imposed by a government's powers of eminent domain, police action, and taxation; ownership of land with the owner having full and absolute dominion over the property. In contrast, the feudal system is an English system in which a king or sovereign gives rights to the citizenry to occupy land for a period of time.


According to Mark Rose (in 'The Author as Proprietor: Donaldson v Becket and The Genealogy of Modern Authorship') how significant was John Locke's account of possessive individualism to the development of the idea of the author as a proprietor of property?


The main assertion of Locke's theory was that each "person" can have their own property. Among other property theories, Mark Rose said that Locke's theory, He felt that the adequate theory of property, well discourse about property and the languages used by Locke explained the idea of the proprietary author well. He was concerned about the extension of the scope of the literary production, for origin proprietors blended readily with the aesthetic discourse of originality. The natural right of property should come prior to social order since it was not a social convention. The principal function of the social order was to protect individual property rights.[2]


He also mentioned that John Locke's theory of the origins of property mentioned individual acts of appropriation that strayed from the general state of nature. Locke’s development of possessive individualism occurred because of cultural developments-the emergence of the mass market for books and the valorization of original genius during the same period as the long legal and commercial struggle over copyright. This theory significantly influenced Mark Rose's philosophy that through labor an individual might convert the goods of nature into private property.[3]


Mark Rose said that modern authors, were proprietor was formed by the blending of Locke's developments and the aesthetic discourse of originality. This occurred under the particular pressures of the requirements of legal argumentation.[4]


[1] MaceDonald, Carme and et al, "Real property law in Queensland" (Thomson Reuters, 2010) 17-26.

[2] Rose Mark, "The author as proprietor: Donaldson v. Becket and the Genealogy of modern authorship" (Oxford: Clarendon Press, 1988) 23-55.

[3] Ibid.

[4] Ibid.


What are the differences between Hobbes and Locke in their accounts of the relation between the State and Civil Society? Which account do you find more convincing?


Hobbes and Locke were both social contract theorists and as well as natural law theorists. Natural law theorists argue that man is, by nature, a social animal. Hobbes argues that unlimited power is given to the state for the purpose of ending all conflict and contention. In other words, if the public proceed something lives freely they will come in conflict, it is the duty of the state to prevent such conflicts. He also argues that civil society should exist only by the power of the state and to the extent that it existed independent of the state. It should suppress the private associations, corporations, and political discussion. Whereas, Locke argues that the state was formed by social contract since each state has its own judge, but not everyone can be protected if they have lived outside of the law of nature. The state should be guided by natural law and the civil society morally and historically precedes the state. The government is legitimate, but only legitimate in so far as it acts within the limits of this implied contract. According to this argument, all people were equal and independent and no one had a right to harm another's "life, liberty, or possessions."[1] I agree with Locke's theory and his argument, however, since we are living in a technologically advanced world, I believe that  the state should be given ultimate power to prevent any complex conflict. The civil society should precedes the state but there must be certain limitations so that the state can play a significant role in order to mediate conflicts among people.


Is Locke's account of the manner in which we acquire property and the limits to acquisition convincing? If it’s not convincing how can we account for how Locke came up with it?


Locke argued that government should limit and  protect the individual’s right to acquire property. Also, government should preserve fundamental liberties and rights of individuals, maintaining a degree of social order. John Locke discussed the acquisition of individual property rights under specific conditions (s27,s31,s33) in the Second Treatise on Government. Locke put three restrictions on the acquisition of property:[2]


1) As much as anyone can make use of to any advantage of life before it spoils

2) A man may appropriate only as much as leaves 'enough, and as good' for others (sufficiency proviso): Locke requires that there is enough land to go around for everyone. If there is no longer enough land, Lock points out section 34, non owners must labour on owned land to sustain their lives.

3) The rightful appropriation appears to be limited to the amount a man can procure with his own labour


Questions were raised about his restrictions. From my point of view, in the 21st century, we do not have enough land resources for everyone and people do not tend to leave it for others. These restrictions no longer meet the criteria with modern society and people, but these restrictions are still discussed and applied in this century? Robert Nozick mentioned that the problem with Locke's argument was one hypothetical: "I pour a can of tomato juice into the ocean, do I now own the seas?"  When other labouring is mixed with mine, to what extend does the other person raise his/her right and how do I determine the scope of my right (labouring)? I guess Locke did not consider the scope of the right which is also mentioned by Carol Mark Rose.


How does Locke characterize liberal possessive individualism and is his account pure illusion?


Macpherson criticized the possessive individualism that Locke's theory of property represents. The gist of Locke’s individualism is that all  men are naturally the sole proprietors of his own person and capacities, the absolute proprietor in the sense that he owes nothing to society and in particular, the absolute proprietor of his capacity to labour. From his point of view, a man's labor was his own which was the essential novelty of Locke's doctrine of property. According to  Locke’s chapter on property in the Second Treatise of Civil Government , his attempt to ground the right to property in natural law was an important device for asserting the rights of individuals against the state and for limiting the moral authority of the state in a crucial area of human endeavor. Locke's individualist, private property stance was not always admired or believed to be without flaw, but criticism was leveled within the context of Locke's claim of being as a liberal philosopher. He was understood as a constitutionalist liberal who provided a mediocre defense of private property. Ironically, Locke's theory does not make sense when it comes to discussing the social classes in the capitalistic society. Laborers can be given  very limited sources or land.[3]


[1] Freeman, Michael D.A, Lloyd's introduction to jurisprudence (London:Sweet & Maxwell, 8th, 2008) 105-112.

[2] Macpherson, Crawford Brough, The Political theory of possessive individualism (Oxford University Press, 1962)  1994-221.

[3] Macpherson, Crawford Brough, The political theory of possessive individualsm (Oxford University Press,1962) 194-221.

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