Land, Property, Ownership

Introduction – land property ownership

As humans moved out of the wild and natural environments of Natura and into the man-made environments of Agraria, it became necessary to develop codes of behavior appropriate to their new surroundings.

Large urban communities had a different relationship to their surroundings. Nature was being subsumed by culture. Natural space became public space. – the land, its resources, and human products. All communities (and Europeans were no exception) saw in the land around them a spiritual or religious dimension. The land was created, given, or occupied by supernatural being(s).

This did not, however, resolve the immediate practical problem: how were land, resources, and human goods to be respected, distributed, and exchanged? Aboriginals managed these matters in a relatively simple way, but complex urban societies used an elaborate system of agreed law and convention – what we now know as economics. Though we tend to think of economics in terms of the trust involved in monetary and other exchange, underlying this activity are the more important ideas of property and ownership – and at the top of the list for both Aboriginals and Europeans was land. Anyone with access to land has access to the resources it contains. One of the most effective ways for an individual or group to exert power over another individual or group is to take control of life-supporting resources: it is hardly surprising that so much human conflict has centred on acquiring and defending land.

What a biologist or ecologist calls ‘the environment’ most people would describe as ‘land’ – and this was most certainly the case for Australia’s early settlers. If we want to assess settler attitudes to the environment then we must look closely at the attitudes and beliefs that decided why they should manage it the way that they did. We have already seen, for example, how the European attitude to land and property was totally different from that of Australia’s indigenous people.

Claiming a continent

In 1770 a small group of men, strangely and inappropriately dressed for the climate, stepped onto the land now known as Australia after sailing all the way from England. They thrust a stick with a piece of coloured cloth attached at the tip into the ground and claimed possession of an already occupied land ‘in the name of King George III’.

Today this strikes us as not only humourously absurd, but extremely unjust. Yet it was the way that the British began the appropriation of a continent from its Aboriginal inhabitants. Of course the British themselves had been subject to waves of invasion and occupation in their own country – by peoples that included Celts from the Iberian Peninsula, Romans, Angles, Saxons, Picts, Jutes, Vikings, and Normans. It was the way things were done in those days. People just took what they could, using armed force if necessary, and often those with the most effective armoury would win the day. But that surely does not make such behaviour acceptable?

How are such matters decided today? How can we occupy land in a way that is just, equitable, and acceptable to its inhabitants while at the same time protecting the land and its resources?

The problem

As we all own or occupy land then the act of colonisation raises basic questions for all of us, and especially those concerned with land management.

By what right does any person or group of people claim to own land to the exclusion of others? How can we justify any person or group of people owning more land than any another? How is land and environmental management assisted or hampered by public and private land ownership and what should be the land-owner’s rights and responsibilities in relation to both the land itself, and to other people who might want to occupy, pass through, or use that land? As a nation, or a global community, how should land be efficiently, fairly, and sensitively managed?

These questions have practical application on a grand scale and they have occupied the world’s best minds as nations and people, through the millennia, have contemplated everything from world domination, to territories ranging in size from continents to house-blocks or parts of the school playground. Historically, it seems, people acted first and asked questions later. Nowadays such matters generally entail a complex process of local, national and international law.

‘The problem’ boils down to issues of property and ownership.

If we are to understand settler beliefs and attitudes in relation to land and its management (and Neo-European land practice in general) then we must start here.

Property and ownership

‘Property’ is a general term referring to the rules governing access to and control of land and natural resources including the means of production, manufactured goods, and maybe even intellectual products like books, ideas, inventions and the like.

For environmental managers, and those concerned with sustainability, property rights are fundamental as they relate directly to resource use, this being critical when resources are either scarce or a vital part of day-to-day existence. Without some agreement or set of rules concerning property the cooperation needed for production and trade would soon falter or become corrupt and for this practical reason property rules are a part of law.

There are three recognised kinds of property: common property open for access to anyone (e.g. public parks, traditional tribal land of indigenous communities); collective property owned by joint agreement (e.g. corporations, military bases, producer cooperatives, government public property), and private property (our clothes and general possessions, possibly including a block of land and a house etc.). Of these three kinds of property it is private property that is most controversial because it permits individuals to make decisions about the use of resources that may not take into account the needs of others or the public good. In addition, the protection of private property can entail public enforcement at public expense.

At the time of John Locke (1632-1704), specifically his Second Treatise on Government (1690), property (under common law) was an object in the relation of ownership existing between an object (like land or a watch) and a person, as three rights: possession (inferring exclusion), use, and disposal.

After 1800 property became separated from its objects as a relation between people deciding on how that property is to be used. Under this interpretation people have rights attached to particular objects.

Property law then became more complex as a set of rights and a question about who controls the many uses to which objects can be put. The law must define the ownership of property rights and there is a separate property right for the various uses.

Exchange

Voluntary property exchange takes place when participants realize mutual benefit. Assuming no hindrance this should ensure efficient allocation (of rights). Whether the law should intervene in facilitating efficient allocation is a contentious matter.

Right to property

The right property is still disputed. Locke believed property, like the right to rule, came from God since people once lived in a state of nature, which was not a state of anarchy or chaos but a time before government. At this time people had three God-given rights: firstly, personal liberty (property in our own bodies, thoughts and ideas, therefore no slavery even if desired – an inalienable right); secondly, right to personal property from nature’s abundance through the use of labour which produces value; thirdly, the right to punish those who violate the first and second rights.

But the unreasoning strong could exploit the weak – the way to overcome this was through a social contract as governmental law. Liberty and property were God-given and therefore not the concern of the state. Property rights therefore precede government and the state and are held against the government regardless of government need. The state is therefore an instrument created by common agreement for the sole function of protecting personal liberty and property. In Locke’s view governmental concerns such as social welfare and public good have no justification – so no individual can be forced to defer to another person(s) welfare and there are no situations in which these individual rights can be taken away. Locke (like Jefferson) presented this as a justification for revolution when the government violates the two individual rights thus breaking the social contract. Citizens are thus set apart from the state and have the right to rebel and replace such a government.

Jeremy Bentham (1748-1832) believed property derived from the willingness of the state to confer property rights. Writing in 1791 amid the French Revolution Bentham denied God-given rights – property rights are vested in the state as law. The state assigns property rights through utility ‘the greatest happiness of the greatest number’. Bentham also made three claims: firstly, there is no property until the state creates; secondly, the state’s interests take precedence over those of the individual; and thirdly, the state may take the liberty and property of an individual as it pursues its goal of maximising utility. The state is therefore the final arbiter on property rights, the public purpose being utility as an instrument of public welfare.

There are now numerous rights associated with property use and time: different people may hold rights to the same use at different times and vice-versa.

A defence of private property

What is the justification for private property? On what grounds can a piece of land (or other property) be allocated to a particular individual to manage freely and to the exclusion of others?

At first glance it might appear that collective ownership is the most practical, fair, and socially beneficial system of property ownership because it guards against our natural selfishness: collective ownership is based on a more altruistic motive, that of working towards the common or public interest.

American ecologist Garrett Hardin asked the question How are we to allocate the resources of a given piece of land?[5] What would happen if, years ago, land were freely available to everyone? He concluded that there would be literally a ‘free-for-all’ and that the numbers of people or livestock introduced would rapidly increase as people rushed to claim what they could, with a likely disastrous outcome and possibly the destruction of the resource itself. The sad story of this hypothetical site Hardin has called The Tragedy of the Commons. He suggested that human societies have resolved this issue of land control in two basic ways: either some person or group of people is placed in charge of resource allocation (socialism) or private land allocations are made (capitalism).

Regardless of what we think of Hardin’s story the way societies have chosen to deal with the question of property and ownership has produced one of our most basic of our social distinctions, that between ‘socialism’ and ‘capitalism’, between ‘public’ and ‘private’, between philosophies of society based on the ‘individual’ or the ‘group’.

Socialism

In a socialist system then, both resources and profits are distributed among the community. This, in principle, seems a just system. However, in practice, such a system must confront several practical difficulties. Firstly, individual responsibilities within such a system can become obscure and easy to abuse or ignore. How will a person’s worth be decided? Then there is always the possibility of someone, knowing that they will be rewarded (paid) anyway, doing less but still drawing on their share of the gains. Not only can such a system be abused but it can stifle initiative because extra effort or exceptional talent can go unrewarded. There is no incentive to take the financial or other risks needed to improve a particular situation, benefits shared between everyone will not be proportional to the effort put in by individuals. How these issues are resolved will almost certainly involve quite a lot of government regulation and government interference in peoples’ lives which means a restriction of personal freedoms.

Capitalism

So how does capitalism deal with these difficulties? On a grand scale the allocation of private property leads to a capitalist market economy based on competition between many entities all seeking to maximise efficiencies and reduce costs. By doing this they improve their competitive capacity by maintaining low prices for their products. The incentive for doing this is the greater personal gain that results from increased profits. We can imagine that, in general, the harder someone works, the greater chance they have of reaping rewards.

In this situation the owner of private property becomes highly motivated in the pursuit of personal reward; the consumer benefits from lower prices; and society gains from the competition which drives the development of new technology which feeds back into the system producing ‘progress’. Perhaps, most remarkably of all, this model of private ownership ensures productive and efficient use of resources as individuals automatically address problems of resource scarcity and public demand: it also resolves the extremely difficult matter of setting prices for products – price becomes simply what people are prepared to pay, not an arbitrary figure set by the state. So, on top of all this the necessity for expensive and contentious government regulation of production, pricing, and resource management is no longer necessary – the system looks after itself. When expressed in this way we see that we must now balance the ‘impracticalities’ of fairness, with what would seem to be the extreme practicality of self-interest: suddenly the practical benefits of capitalism become extremely appealing.

Efficiency & freedom

Private ownership gives personal freedom. It encourages prudence and responsibility because we care for our personal things more than we do for things held in common. Collective ownership can involve a long, tedious and difficult process of decision-making regarding the management of property. Concerns about altruism can be addressed by ensuring that private property rights are exercised in a just way and the privileges flowing from property ownership can be publicly acknowledged through acts of generosity (noblesse oblige). It was a Roman tradition that personal freedom and wealth could release individuals to pursue civic life in an unhampered way. And also, if altruism stifles incentive then material conditions, the general standard of living, is likely to be ‘lower’. People will be more concerned with day-to-day survival and administration than in developing their imagination and creative potential.

In this sense private property becomes a necessary part of the division of labour in a complex society where striving for equity does not necessarily serve the common good. For instance, as a crude example, senior administrators (capitalist or socialist) simply could not function effectively if they were expected to contribute like everybody else to cooking their own meals, washing and ironing their own clothes, raising children and fulfilling a host of other domestic and social chores.

Morally, it can be argued, ownership encourages taking personal responsibility for outcomes rather than ‘hiding’ within group decisions: it is much more adventurous, even ’heroic’ and it carries the thrill of all enterprise, the possibility of great reward.

Most support for private property points out that it simply yields better outcomes: the burdensome business of public administration is vastly reduced (in particular the setting of prices and the management of scarce resources; it solves the problem of resource allocation), it allows personal freedom and encourages an improvement of material standards. Market economieshave ‘drive’. Individuals are motivated and responsible for their own destinies; hard work is justly rewarded.

We will return to these competing systems later- but first there is the moral question of the initial distribution of property.

What is the moral justification for private property?

But how does private property arise? ‘Mine’ and ‘Yours’ are not a given in the world, they have to be ‘created’ … presumably by some sort of edict such as the declaration of a sovereign, or as a result of some sort of contract or agreement.

The English Early Enlightenment philosopher John Locke (1632-1704) had a major impact on 18th century attitudes to property through his Two Treatises on Government (1689) and much of the sentiment of his thinking has lived on into the modern world of liberal democracies.

Locke, like others of his day, did not question the existence and authority of God. He held that humans are made in God’s image, we are God’s property. Just as God has complete rights over his Creation: so humans have rights or entitlement over their creations – that is, ownership rights over their property. Whoever creates an object both knows and owns that object (whether property or political institution). The prevailing view that he was attacking was that of hierarchical lineage with authority passing from God to Adam, to kings and so on. This was a hierarchical view of authority in which bloodlines or primogeniture was paramount: it was bloodlines that largely determined entitlement to wealth and political authority.

Locke considered his views as part of ‘natural law’ which acknowledged that humans were God’s property and natural law was God’s will. The idea of natural law dated back to at least Aristotle who had pointed out that though many social laws differed from one region to another those laws that existed ‘by nature’ must be the same. Locke expressed an egalitarian non-hierarchical view of society, specifically that: God gave the world to all humans in common; that all individuals have equal access to God (this denies a need for priestly or other religious intercession as required by the Catholic Church);and humans have ownership rights over property created. There wasa a proviso to the last claim that property shouldnot not be wasted and that there be due concern for others: humans had the liberty to create property but not the license to transgress natural law. In effect Locke made individual rights sovereign suggesting that we have both the right, even the duty, to resist their infringement.

Scholars of the early Enlightenment struggled with the apparent contradiction of God’s omnipotence on the one hand and the timeless and absolute laws of nature on the other. Locke, like others of the early Enlightenment, placed natural law outside the realm of human will.

Locke maintained that, in effect, property was instituted in a state of nature without any special conventions or political decisions. Locke’s theory assumed that God gave the world to men ‘in common’ therefore any private entitlements immediately presented a moral problem – if, in a state of nature, we all have equal rights how are we to justify the ‘disproportionate and unequal Possession of the Earth’ that is entailed by private property?

Locke gave a famous moral defence of private property by asserting that people have a moral right to the product of their labour ‘Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men’. (Second Treatise Chapter 5 para. 27)

Locke combined his theory of labour with the idea of ‘first occupancy’, the latter being important because, in taking possession, a first occupant did not have to displace anyone else.

Locke’s views were authoritative and highly respected at the time of Australia’s British occupation/invasion. For Locke the cultivation or productive use of land was a clear sign of invested labour and therefore ownership. And because indigenous hunters or nomadic peoples left no indication of their labour on the land then they could lay no moral claim to the land where they lived and hunted. Here we see the underlying assumptions of terra nullius.

Though Locke acknowledged the rights of first occupancy (first come, first served) there was still the uncomfortable fact that first occupancy could still compromise or otherwise adversely affect the interests of others. Locke countered this concern by claiming that productive labour actually increased the amount of goods available in society thereby serving the common good.

For later Enlightenment philosophers like the German philosopher Immanuel Kant (1724–1804) the personal possession of objects used for the public good was a practical necessity that was simply beyond question, the only important issue to be resolved was the actual agreement deciding who should be the property owner and the conditions of ownership. For Scottish philosopher David Hume (1711-1776) too, ownership was inevitable, it has nothing to do with its justice or morality, but should be stabilized through social rules and the acceptance of an arbitrary place of entitlement.

History of private property in Britain

So much for the theory. How, in Britain, was the matter decided in practice?

Archaeologist Barry Cunliffe suggests that in Britain the first indication of land ownership and private property dates to about 1,500 to 1,300 BCE.[4] However, for practical purposes it is usually traced to the time when all property was owned by the monarch who then granted land rights to barons and others through the system of feudal land tenure under a contract which entailed certain rights and duties: duties like taxation and military service, rights like representation in parliament.

There are several landmarks in modern property law. The Napoleonic Code of 1804 addressed the contentious matter of privilege based on birth, it allowed freedom of religion, and specified the allocation of government jobs based on merit (not social status or tradition). Thought this Code had precedents it was to have a wide influence in Europe and elsewhere as it introduced the idea of absolute ownership into law, effectively replacing the old feudal system by taking property rights from the monarch and giving them to private individuals who became the ‘landed gentry’.

Land tenure

The Western system of laws by which an individual is said to own land, particularly in common law, are referred to as land tenure – being a relationship between tenant and ‘(land)lord’, not the relationship between tenant and the land. The monarch (known as The Crown) held land in his or her own right (hence Crown Land) all private owners then being tenants of some kind. However, with the passage of time many kinds of land ownership have arisen including the following:

• Land grants. Grants of land given with a promise of its productive development
• Native title. Traditional land tenure of indigenous peoples with no idea of land ownership, Europeans overcoming this by referring to ‘Aboriginal title’ as a basis for negotiation
• Allodial title. Land is owned without any landlord obligations or constraints
• Fee simple. Land and real estate is held under common law in Australia, Canada, Ireland, New Zealand, United Kingdom, and United States as a form of freehold ownership. it is limited by government powers of taxation, eminent domain, police power, and escheat
• Leasehold or rental. An arrangement under common and civil law whereby land may be leased or rented by its owner to another party the conditions for being highly variable
• Rights to use a common. Cases like the use of a road or grazing of livestock on commonly owned land.
• Sharecropping. The use of agricultural land owned by another person in exchange for a share of the resulting crop or livestock.
• Easements. Special cases allowing the uses of land owned by someone else e.g right-of-way, or running a power cable through another person’s land
• Various forms of collective ownership already discussed

Modern checks & balances

Western capitalist society based on private property is often touted as ‘free’ society. What does this mean?

With the collapse of socialist systems in Eastern Europe and the former Soviet Union, and the apparent triumph of market economies all over the world it is easy to conclude that the issue of economic collectivism has been resolved and that private property as a philosophical issue no longer requires any justification.

Owners are free to use their property as they please; they are not bound by social or political decisions and the constraints of an all-controlling government in economic decision-making is minimised. But we still have issues to address:

• Haves & have-nots. A system that tends to produce a privileged group of people who own the property and others who have little or nothing. How do we care for people who have little if any property, those who have few if any individual resources (assets)? Aren’t they at the mercy of those who do, a kind of slave class. As Karl Marx pointed out, all they can do to survive is sell their labour to people who have property and assets? Is this the way to organise a society? When arguments to the common good are proposed it needs to be clear if it is really ‘everyone’ that is better off, not just a few. Following Locke it may be argued that propertied individuals have exercised greater prudence, industry and self-restraint so that there is justice in their advantage and that people with little are probably, idle, profligate and lack initiative. Whether this is broadly true or not, the system of private property ensures that idleness is not rewarded at the expense of those who are prepared to apply themselves. In a collectivist society people could be parasitic beneficiaries of the state or even irresponsible participants in a tragedy of the commons. But the idea that property ownership promotes virtue can clearly be over-stretched.

• Dissidents. Where the means of intellectual and political expression are privately owned does a dissident have greater freedom of expression than under systems that are publicly owned? Socialist systems are frequently regarded as authoritarian. But a capitalist too can be draconian or exert unfair political influence (making massive donations to political parties, bribing people, threatening to withdraw support etc.) Collectivist systems are likely to be less tolerant and those who own nothing in a private property society at least have a choice of masters contributing somewhat to freedom – or at least choice

• Greed. When government influence and regulation is perceived as intrinsically negative and interfering individual greed can be given excessive reign. Therecent Global Financial Crisis would appear to be a case of unregulated greed

• Monopolies. Monopolies undermine market efficiency by controling prices and therefore profits. They produce concentrations of power that can stifle dissent and democracy

In short, the incentives that inspire human industry can also inspire corruption.

Back to basics

Some human societies have existed for millennia, satisfying the needs and wants of all, without their land or major resources becoming private property.

The commons

Garrett Hardin’s example of the Tragedy of the Commons is very persuasive. And yet many native peoples, like Australian Aborigines, have lived on common land (the ‘commons’) for tens of thousands of years, with conflict, but seemingly managing land and resources by making ‘common agreements’. They have been careful not to over-harvest the land’s resources by causing extinction and they have respected in their belief systems the animals and plants that were their food.

Many indigenous people, especially hunter-gatherers including Australian Aborigines, are astounded by the Neo-European legal system of land ownership through which land can be bought, sold, and bequeathed. Land, to them, was simply the environment in which they lived and on which they depended for their livelihood. Territoriality seems a universal human trait – the need to control manage, and defend land from others, even at pain of death: but the idea of the land of their spiritual ancestors being physically possessed, sold or bartered hardly made sense, this is a European idea. . Access to the land of other tribes required negotiation although if the land itself was desired then warfare would probably ensue. Europeans wishing to gain access to Aboriginal land would usually either negotiate a treaty, or just take it.

Economics & human nature

Hardin’s example entails a theme that reappears again and again in economics. It concerns the biology of the market and human nature. Animal spirits, bulls and bears, fear and greed, risk and reward. Are we naturally (in a state of nature as Locke would say) greedy, self-seeking and avaricious … or are we concerned for the well-being of all, that is, altruistic? These kinds of questions are of course very difficult to resolve but they are nowadays getting more attention from evolutionary psychologists and other researchers. The great political economist of the Scottish Enlightenment Adam Smith suggested that we could, though private enterprise, harness human greed for the common good. But what do we really know about our human nature – greed, selfishness and altruism are more the topics of literature than science; we tend to support statements about them as ‘common sense’. Perhaps humans had become more greedy by Adam Smith’s time than they were as hunter-gatherers? Perhaps as regards greed and altruism humans can be either or both: and that just as socially we regulate our sexual drive, so too we can regulate our more selfish urges?

Territoriality

Underlying land ownership is a possibly ‘instinctive’ sense of territoriality (clearly present in many other animals if not in humans[1]) that has been the source of much human conflict. Reaching back into earliest prehistory people, communities, and nations have fought bloody battles over land ownership and the delimitation of land boundaries. In political geography it is perhaps the commonest source of conflict and for obvious reasons: land is the source of the resources on which we depend for our survival, without it we perish or are subjugated. If human history is at least in part about the demonstration of power then what better way of showing your power than by taking control of or taking away altogether someone else’s land (or property) – the symbolic (if not real) source of life?

Plant commentary & sustainability analysis

It hardly needs saying that the patterns of land ownership, access, and use we see in most countries are far from the product of careful deliberation, considerations of justice, or even the operation of supply and demand – more the outcome of political power struggles and non-economic restrictions.

It is surely a historical fact that any attempts to establish justice in property allocation were superimposed on what were already systems of unfair distribution and exploitation. There is ample opportunity to constantly re-examine and implement our principles of private property along with the social and moral principles to which we can aspire.

Today’s reality is that we have a system of markets and private property that control most of the land and resources in our society while we struggle with the ideal principles of equality and distribution according to need or merit and with protection of the resources, animals andplants that exist on Australian soil. Do we have the legal and political strength to protect these ideals?

For Hobbes property emanated from property rules issued by a figure of authority such as the sovereign and that ensured a degree of peace. Hume thought the sovereign unnecessary as agreements could be made amongst ordinary people. More modern-thinking philosophers like David Hume have pointed out that owning property is not a ‘natural’ relationship but a moral one founded on justice. Locke’s idea of labor seems to be a piece of rhetoric which enhances other arguments for private property rather than an argument in its own right.

It seems that we are in a dilemma: property allows people to chase individual dreams, ambitions and goals that could not be followed in a collectivist system but there is room for corruption. Self-interest can make any laws of taxation or redistribution objectionable and the rich and powerful can, in many ways ’set the agenda’. Perhaps it was ever thus.

With markets and prosperity come inequality, avarice and envy. Hume considered that since time immemorial, people have fought over resources, the possession of which was driven by force, cunning, and luck. In general government has entered only to reinforce conventions of property that have emerged in a non-legal way.

Today too we cannot expect cooperation on moral grounds but the defence of self-interest even though the moral matters are considered important e.g. slavery.

Ironically one of the main uses of Lockean theory these days is in defending the property rights of indigenous people—where a literal claim is being made about who had first possession of a set of resources and about the need to rectify the injustices that accompanied their subsequent expropriation.

Owning land carries with it the sole rights to its resources and the legal right to deny others access to those resources. Though there are many practical issues regarding to resource access, in principle there is no reason why any individual person should have greater access to the world’s resources than any other.

Modern questions about land ownership in placeslike Hungary, Uganda, Mexico, and Cambodia try to produce land policies that address poverty reduction, economic growth, empowerment, and improved governance. Also to be addressed are : land access, reducing land-related conflict, land taxation, managing control over state land, land use regulation and zoning.

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First published on the internet – 1 March 2019
. . . revised 9 October 2020