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
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
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),
9. Isaiah Berlin, Two Concepts of Liberty (Oxford, 1958), 14.