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nd euthanasia in many ancient legal systems e g early roman law religious sites e g temples were considered property of the god or gods they were devoted to however religious pluralism makes it more convenient to have sacred sites owned by the spiritual body that runs them intellectual property and air airspace no fly zone pollution laws which can include tradable emissions rights can be property in some senses of the word ownership of land can be held separately from the ownership of rights over that land including sporting rights 17 mineral rights development rights air rights and such other rights as may be worth segregating from simple land ownership ownership edit main article ownership ownership laws may vary widely among countries depending on the nature of the property of interest e g firearms real property personal property animals persons can own property directly in most societies legal entities such as corporations trusts and nations or governments own property in many countries women have limited access to property following restrictive inheritance and family laws under which only men have actual or formal rights to own property in the inca empire the dead emperors considered gods still controlled property after death 18 government interference edit in 17th century england the legal directive that nobody may enter a home which in the 17th century would typically have been male owned unless by the owner s invitation or consent was established as common law in sir edward coke s institutes of the lawes of england for a man s house is his castle et domus sua cuique est tutissimum refugium and each man s home is his safest refuge it is the origin of the famous dictum an englishman s home is his castle 19 the ruling enshrined into law what several english writers had espoused in the 16th century 19 unlike the rest of europe the british had a proclivity towards owning their own homes 19 british prime minister william pitt 1st earl of chatham defined the meaning of castle in 1763 the poorest man may in his cottage bid defiance to all the forces of the crown it may be frail its roof may shake the wind may blow through it the storm may enter the rain may enter but the king of england cannot enter 19 that principle was carried to the united states under u s law the principal limitations on whether and the extent to which the state may interfere with property rights are set by the constitution the takings clause requires that the government whether state or federal for the 14th amendment s due process clause imposes the 5th amendment s takings clause on state governments may take private property only for a public purpose after exercising due process of law and upon making just compensation if an interest is not deemed a property right or the conduct is merely an intentional tort these limitations do not apply and the doctrine of sovereign immunity precludes relief 20 moreover if the interference does not almost completely make the property valueless the interference will not be deemed a taking but instead a mere regulation of use 21 on the other hand some governmental regulations of property use have been deemed so severe that they have been considered regulatory takings 22 moreover conduct is sometimes deemed only a nuisance or another tort has been held a taking of property where the conduct was sufficiently persistent and severe 23 theories edit there exist many theories of property one is the relatively rare first possession theory of property where ownership of something is seen as justified simply by someone seizing something before someone else does 24 perhaps one of the most popular is the natural rights definition of property rights as advanced by john locke locke advanced the theory that god granted dominion over nature to man through adam in the book of genesis therefore he theorized that when one mixes one s labor with nature one gains a relationship with that part of nature with which the labor is mixed subject to the limitation that there should be enough and as good left in common for others see lockean proviso 25 in his encyclical letter rerum novarum 1891 pope leo xiii wrote it is surely undeniable that when a man engages in remunerative labor the impelling reason and motive of his work is to obtain property and after that to hold it as his very own 26 anthropology studies the diverse ownership systems rights of use and transfer and possession 27 under the term theories of property as mentioned western legal theory is based on the owner of property being a legal person however not all property systems are founded on this basis in every culture studied ownership and possession are the subjects of custom and regulation and law is where the term can meaningfully be applied many tribal cultures balance individual rights with the laws of collective groups tribes families associations and nations for example the 1839 cherokee constitution frames the issue in these terms sec 2 the lands of the cherokee nation shall remain common property still the improvements made thereon and in possession of the citizens respectively who made or may rightfully own them provided that the citizens of the nation possessing the exclusive and indefeasible right to their improvements as expressed in this article shall possess no right or power to dispose of their improvements in any manner whatever to the united states individual states or individual citizens thereof and that whenever any citizen shall remove with his effects out of the limits of this nation and become a citizen of any other government all his rights and privileges as a citizen of this nation shall cease provided nevertheless that the national council shall have power to re admit by law to all the rights of citizenship any such person or persons who may at any time desire to return to the nation on memorializing the national council for such readmission communal property systems describe ownership as belonging to the entire social and political unit common ownership in a hypothetical communist society is distinguished from primitive forms of common property that have existed throughout history such as communalism and primitive communism in that communist common ownership is the outcome of social and technological developments leading to the elimination of material scarcity in society 28 corporate systems describe ownership as being attached to an identifiable group with an identifiable responsible individual the roman property law was based on such a corporate system in a well known paper that contributed to the creation of the field of law and economics in the late 1960s the american scholar harold demsetz described how the concept of property rights makes social interactions easier in the world of robinson crusoe property rights play no role property rights are an instrument of society and derive their significance from the fact that they help a man form those expectations which he can reasonably hold in his dealings with others these expectations find expression in society s laws customs and more an owner of property rights possesses the consent of fellowmen to allow him to act in particular ways an owner expects the community to prevent others from interfering with his actions provided that these actions are not prohibited in the specifications of his rights harold demsetz 1967 toward a theory of property rights the american economic review 57 2 p 347 29 different societies may have other theories of property for differing types of ownership for example pauline peters argued that property systems are not isolable from the social fabric and notions of property may not be stated as such but instead may be framed in negative terms for example the taboo system among polynesian peoples property in philosophy edit in medieval and renaissance europe the term property essentially referred to land after much rethinking land has come to be regarded as only a special case of the property genus this rethinking was inspired by at least three broad features of early modern europe the surge of commerce the breakdown of efforts to prohibit interest then called usury and the development of centralized national monarchies ancient philosophy edit urukagina the king of the sumerian city state lagash established the first laws that forbade compelling the sale of property 30 the bible in leviticus 19 11 and 19 13 states that the israelites are not to steal 31 aristotle in politics advocates private property 32 he argues that self interest leads to neglect of the commons t hat which is common to the greatest number has the least care bestowed upon it everyone thinks chiefly of his own hardly at all of the common interest and only when he is himself concerned as an individual 33 in addition he says that when property is common there are natural problems that arise due to differences in labor if they do not share equally enjoyments and toils those who labor much and get little will necessarily complain of those who labor little and receive or consume much but indeed there is always a difficulty in men living together and having all human relations in common but especially in their having common property politics 1261b34 cicero held that there is no private property under natural law but only under human law 34 seneca viewed property as only becoming necessary when men become avaricious 35 st ambrose later adopted this view and st augustine even derided heretics for complaining the emperor could not confiscate property they had labored for 36 medieval philosophy edit thomas aquinas 13th century edit the canon law decretum gratiani maintained that mere human law creates property repeating the phrases used by st augustine 37 st thomas aquinas agreed with regard to the private consumption of property but modified patristic theory in finding that the private possession of property is necessary 38 thomas aquinas concludes that given certain detailed provisions 39 it is natural for man to possess external things it is lawful for a man to possess a thing as his own the essence of theft consists in taking another s thing secretly theft and robbery are sins of different species and robbery is a more grievous sin than theft theft is a sin it is also a mortal sin it is however lawful to steal through stress of need in cases of need all things are common property modern philosophy edit thomas hobbes 17th century edit the principal writings of thomas hobbes appeared between 1640 and 1651 during and immediately following the war between forces loyal to king charles i and those loyal to parliament in his own words hobbes reflection began with the idea of giving to every man his own a phrase he drew from the writings of cicero but he wondered how can anybody call anything his own james harrington 17th century edit a contemporary of hobbes james harrington reacted to the same tumult differently he considered property natural but not inevitable the author of oceana he may have been the first political theorist to postulate that political power is a consequence not the cause of the distribution of property he said that the worst possible situation is when the commoners have half a nation s property with the crown and nobility holding the other half a circumstance fraught with instability and violence he suggested a much better situation a stable republic would exist once the commoners own most property in later years the ranks of harrington s admirers included american revolutionary and founder john adams robert filmer 17th century edit another member of the hobbes harrington generation sir robert filmer reached conclusions much like hobbes but through biblical exegesis filmer said that the institution of kingship is analogous to that of fatherhood that subjects are still children whether obedient or unruly and that property rights are akin to the household goods that a father may dole out among his children his to take back and dispose of according to his pleasure john locke 17th century edit in the following generation john locke sought to answer filmer creating a rationale for a balanced constitution in which the monarch had a part to play but not an overwhelming part since filmer s views essentially require that the stuart family be uniquely descended from the patriarchs of the bible and even in the late 17th century that was a difficult view to uphold locke attacked filmer s views in his first treatise on government freeing him to set out his own views in the second treatise on civil government therein locke imagined a pre social world each of the unhappy residents which are willing to create a social contract because otherwise the enjoyment of the property he has in this state is very unsafe very insecure and therefore the great and chief end therefore of men s uniting into commonwealths and putting themselves under government is the preservation of their property 40 they would he allowed create a monarchy but its task would be to execute the will of an elected legislature to this end to achieve the previously specified goal he wrote it is that men give up all their natural power to the society they enter into and the community put the legislative power into such hands as they think fit with this trust that they shall be governed by declared laws or else their peace quiet and property will still be at the same uncertainty as it was in the state of nature 41 even when it keeps to proper legislative form locke held that there are limits to what a government established by such a contract might rightly do it cannot be supposed that the hypothetical contractors they should intend had they a power so to do to give anyone or more an absolute arbitrary power over their persons and estates and put a force into the magistrate s hand to execute his unlimited will arbitrarily upon them this were to put themselves into a worse condition than the state of nature wherein they had a liberty to defend their right against the injuries of others and were upon equal terms of force to maintain it whether invaded by a single man or many in combination whereas by supposing they have given themselves up to the absolute arbitrary power and will of a legislator they have disarmed themselves and armed him to make a prey of them when he pleases 42 both persons and estates are to be protected from the arbitrary power of any magistrate including legislative power and will in lockean terms depredations against an estate are just as plausible a justification for resistance and revolution as are those against persons in neither case are subjects required to allow themselves to become prey to explain the ownership of property locke advanced a labor theory of property david hume 18th century edit in contrast to the figures discussed in this section thus far david hume lived a relatively quiet life that had settled down to a relatively stable social and political structure he lived the life of a solitary writer until 1763...
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