Property Law Assignment Essay

1282 words - 6 pages

The attempt to discover the true meaning of property ownership is an ever-continuing process, and thus there is no unanimity of opinion regarding ownership of property.[footnoteRef:1] This essay explores the theme of property ownership and identifying commonalities and divergences in theories. More specifically, this essay will deliberate that the bundle of rights theory is a justification for the ownership of property.[footnoteRef:2] Consequently, the appropriate individuals to deal with theorising ownership of property will be discussed. [1: Sukhninder Panesar , ‘Theories of Private Property in Modern Property Law’ (2000) 15 Denning LJ, 113; W.L. Sheldon, ‘What Justifies Private Property?’ (1893) 4(1) International Journal of Ethics, 17-40. ] [2: Jane B. Baron, ‘Rescuing the Bundle-of-Rights Metaphor in Property Law’ (2014) 82 University of Cincinnati Law Review, 57. ]

John Locke’s attempts to provide an adequate justification for the ownership of property, however his theory is heavily threaded with ambiguity. Locke adopts a unilateral appropriation that individuals can act on their behalf create rights over natural resources that others have a moral duty to respect. [footnoteRef:3] In this regard, the theorist refers to property as a “presocial, a natural right expressing the rights of persons which are prior to the state and law”.[footnoteRef:4] Locke heavily emphasises that property should not be wasted or taken in excess. [footnoteRef:5] Additionally, Locke asserted that individuals held the right to revolt if government was not meeting the needs of the people, which is a common thread between Marx and Locke. However, clarifying Locke’s theory and intentions regarding the theory remains “one of the big challenges in the history of political thought”.[footnoteRef:6] Biased theories of property such as those proposed by Locke are obsolete and hold minimal value in today’s world.[footnoteRef:7] The theorist’s status as a philosopher could contribute to the lack of value of this theory. The theorising of property ownership by political and economic philosophers can create a theory disconnected from any legal discourse on the system of property rules.[footnoteRef:8]Thus, this theorist’s ambiguity does not suffice in a justification for the ownership of property. [3: Karl Widerquist, ‘Lockean Theories of Property: Justifications for Unilateral Appropriation’ (2010) 2 Georgetown University – Qatar, 3; John Locke, On Property’ Second Treatise of Government (1690), Chapter 5 ‘Of Property’.] [4: Ibid.] [5: Ibid.] [6: Nicholson 1998,153.] [7: Norman Fischer and Asher Milbauer, Marxist Ethics within Western Political Theory: A dialogue with Republicanism, Communitarism, and Liberalism (palgrave macmillan, 1st ed, 2015).] [8: Above n 1.]

Marx’s theory countermands that of Locke’s as it aims to address perceptible problems that affect individuals’ development of freedom. [footnoteRef:9] Marx’s theory claims that private...

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