Property as Control over Access
And so continues our search for the inner mystery of "property". Let us look back and see how far we have got since we started. There is no real likelihood that we have arrived at our destination, for the quest for the essential nature of "property" has beguiled thinkers for many centuries. The essence of "property" is indeed elusive. That is why, in a sense, we have tried to catch the concept by surprise by asking not "What is property?" but rather "What is not property?" We have started from the other end of the earth- both geographically and conceptually-and we have deliberately come by the direction which seemed least probable. But along the way we may have discovered something of value. We may have discovered the irreducible conditions which underlie any claim of "property".
The classic common law criteria of "property" have tended to rest a twin emphasis on the assignability of the benefits inherent in a resource and on the relative permanence of those benefits if unassigned. Before a right can be admitted within the category of "property" it must, according to Lord Wilberforce in National Provincial Bank Ltd. v. Ainsworth, be "definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability". This preoccupation with assignability of benefit and enforceability of burden doubtless owes much to the fact that the formative phases of the common law concept of property coincided with a remarkable culture of bargain and exchange. Non-transferable rights or rights which failed on transfer were simply not "property". Within the crucible of transfer lawyers affected to demarcate rights of "property" from rights founded in contract and tort or, for that matter, from human rights and civil liberties. Only brief reflection is required in order to perceive the horrible circularity of such hallmarks of "property". If naively we ask which rights are proprietary, we are told that they are those rights which are assignable to and enforceable against third parties. When we then ask which rights these may be, we are told that they comprise, of course, the rights which are traditionally identified as "proprietary". "Property" is "property" because it is "property": property status and proprietary consequence confuse each other in a deadening embrace of cause and effect.