by Richard Pipes
pp. xv - xvi
published by Alfred A. Knoff, Inc.
copyright ©1999 by Richard Pipes
Possession refers to the physical control of assets, material or incorporeal, without formal title to them: it is ownership de facto, not de jure. It is customarily justified by prolonged use and/or inheritance from one’s progenitors, what in English law is called “prescription,” and asserted by physical force and tacit community support. Although objects possessed cannot be disposed of by sale, in practice they almost always entitle the possessor to bequeath it to his offspring and in this manner tend to turn into property. Through most of history and in many parts of the world today, assets are held in this form.
Property refers to the right of the owner or owners, formally acknowledged by public authority, both to exploit assets to the exclusion of everyone else and to dispose of them by sale or otherwise. “What distinguishes property from mere momentary possession is that property is a claim that will be enforced by society or the state, by customs or convention or law.”6 In practice, it postulates public authority of some kind. The concept originated in ancient Rome, whose jurists designated what we understand as “property” by the term dominium.*
Property is of two kinds: productive, i.e., the kind that can create more property (e.g., land, capital), and personal, which serves exclusively for use (e.g., housing, clothing, weapons, jewelry). Such is the customary usage. But more broadly, in the terminology of Western theory since the late Middle Ages, “property” has come to encompass everything that properly belongs to a person (suum in Latin), including his life and liberty. It is this broad definition of property or “propriety,” as it came to be known in seventeenth-century England and hence was transplanted to colonial America, that provides the philosophical link between ownership and freedom.
Under the influence of Marx, some modern theorists prefer to define “property” (in the narrow, conventional sense) not as the right over “things” but as “relations among persons in respect to things.”7 “Property right is not to be identified with the fact of physical possession….
property right is a relation not between an owner and a thing, but between the owner and other individuals in reference to things.”8 But such a definition is hardly satisfactory, inasmuch as “property” involves a great deal more than the right over “things.”
Property can be held in two ways: (1) communally, and (2) privately. Title to communal property is vested jointly in all its members, but the community does not dispose of it; neither does it have any collective rights to it (e.g., a modern cooperative apartment). Private property belongs to an individual, a kinship group, or an association of individuals.“Communist property” is a contradiction in terms, inasmuch as “property” belongs to the realm of private law, whereas under communism the state, a public institution, is the exclusive owner of all productive assets in its capacity as sovereign authority.
In everyday usage, the reader should be warned, it is very difficult to maintain the legal distinction between possession and property. In the body of the book, therefore, except where specifically noted, “possession” and “property” may be used interchangeably.
The term freedom as used in this study covers four subjects: (1) political freedom, i.e., the right of the individual to participate in the choice of officials of the government under which he lives; (2) legal freedom, i.e., the right in relations with other individuals and the state to be judged by third parties in accord with the law; (3) economic freedom, i.e., the right freely to use and dispose of one’s assets; and (4) personal rights, i.e., the claim of the individual to his life and liberty and the license to do whatever he wishes as long as he does not infringe on the liberties and rights of others: in other words, absence of coercion. Free-dom and personal rights are not necessarily included in political democracy: “there is no necessary connection between individual liberty and democratic rule.”9 Thus the citizens of ancient Athens enjoyed political but not civil rights, whereas privileged subjects of some enlightened despots had civil but not political rights.
Freedom does not include the so-called “right” to public security and support (such as implied in the slogan phrases “freedom from want” and “the right to housing”) which infringe on the rights of others since it is they who have to pay for them. Such “rights” are at best a moral claim, and at worst, if enforced by public authority, an unearned privilege. *Etymologically, “property” derives from the Latin proprius, meaning particular to, or appropriate to, an individual person. From it Byzantine jurisprudence evolved the term proprietas, or “ownership.”
6. C.B. Macpherson, ed., Property: Mainstream and Critical Positions (Oxford, 1978), 3.
7. Stephen R. Munzer, A Theory of Property (Cambridge, 1990), 17.
8. Morris Cohen in Cornell Law Quarterly 13, No. 1 (December 1927), 12.
9. Isaiah Berlin, Two Concepts of Liberty (Oxford, 1958), 14.