Possession as the Origin of Property

Abstract

How do things come to be owned? This is a fundamental puzzle for anyone who thinks about property. One buys things from other owners, to be sure, but how did the other owners get those things? Any chain of ownership or title must have a first link. Someone had to do something to anchor that link. The law tells us what steps we must follow to obtain ownership of things, but we need a theory that tells us why these steps should do the job. John Locke's view, once described as "the standard bourgeois theory," 1 is probably the one most familiar to American students. Locke argued that an original owner is one who mixes his or her labor with a thing and, by commingling that labor with the thing, establishes ownership of it.' This labor theory is appealing because it appears to rest on "desert," 3 but it has some problems. First, without a prior theory of ownership, it is not self-evident that one owns even the labor that is mixed with something else. 4 Second, even if one does own the labor that one performs, the labor theory provides no guidance in determining the scope of the right that t Professor of Law, Northwestern University, and Visiting Professor of Law, University of Chicago. For comments and suggestions I especially thank the George Washington University Property Colloquium, to which a version of this paper was given in March 1983, and

Ownership reasoning in children across cultures

“…In addition to what we know about Western middle class preschoolers regarding the principles they use in determining ownership, we considered additional principles that have been traditionally called for in political philosophy and the philosophy of law on the determination of ownership of an object (Locke, 1689(Locke, /1996Rose, 1985) but that have not been considered jointly in the perspective of development. These principles include creation (effort and work in creating an object, e.g., Kangiesser et al, 2010;Li et al, 2013), first contact (antecedence in seeing or touching the object first, e.g., Friedman & Neary, 2008), familiarity (anterior use and habit; e.g., Neary, Friedman & Burnstein, 2009;Friedman et al, 2011), and equity (equitable distribution between rich and poor; e.g., Zebian & Rochat, 2012).…”

(Dis)Owning Religious Speech

“…322 "Possession as the basis of property ownership, then, seems to amount to something like yelling loudly enough to all who may be interested," she concludes. 323 "The first to say, 'This is mine,' in a way that the public understands, gets the prize, and the law will help him keep it against someone else who says, 'No, it is mine.'"…”

Modularity and Morality in the Law of Torts

“…Indeed, the two aspects are related: the Lockean labor-mixing theory ensures that the mixed labor communicates to potential duty bearers through the worked-upon thing. 61 Generally, the communicative aspect of possession is at least somewhat mediated through the thing: acting upon the thing announces the claim. 62 But some situations in which people are competing to own resources are not handled under the law of first possession.…”