Property - term of wide signification, Other Subject

'Property' is a Term of Wide Signification

Leaving aside for a moment the issue of moral limitation, it is clear that the perspective of excludability has an otherwise liberating impact on the identification of "property". An extensive frame of reference is created by the notion that "property" consists primarily in control over access. Much of our false thinking about property stems from the residual perception that "property" is itself a thing or resource rather than a legally endorsed concentration of power over things and resources. If "property" is not a thing but a power relationship, the range of resources in which "property" can be claimed is significantly larger than is usually conceded by orthodox legal doctrine. (This is indeed the source of both the greatest challenge and the greatest danger confronting the law of property in the 21st century.) The limits on "property" are fixed, not by the "thinglikeness" of particular resources but by the physical, legal and moral criteria of excludability. By lending the support of the state to the assertion of control over access to the benefits of particular resources, the courts have it in their power to create "property". But of critical importance in this definitional process is obviously the care with which the courts determine which resources are recognisably non-excludable.

Posted Date: 2/21/2013 6:24:07 AM | Location : United States







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