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11 The Fragmentation of Ownership

The Fragmentation of Ownership

Gerald Gaus, “Property and Ownership,” in Oxford Handbook of Political Philosophy, ed. David Estlund (Oxford: Oxford University Press, 2012)


2. THE FRAGMENTATION OF OWNERSHIP 

Drawing on the classic analysis of A. M. Honoré, let us say that a person (Alf) has full ownership of X if Alf has

(1) Right of Use: Alf has a right to use X, that is, 
(a) Alf has a liberty to use X, and 
(b) Alf has a claim on others to refrain from use of X. 

(2) Right of Exclusion (or possession): Others may use X if and only if Alf consents, that is, 
(a) If Alf consents others have a liberty to use X; 
(b) If Alf does not consent others have a duty not to use X. 

(3) Right to Compensation: If someone damages or uses X without Alf’s consent, then Alf has a right to compensation from that person. 

(4) Rights to Destroy, Waste, or Modify: Alf has a liberty to destroy X, waste it, or change it. 

(5) Right to Income: Alf has a claim to the financial benefits of forgoing his own use of X and letting someone else use it. 

(6) Absence of Term: Alf’s rights over X are of indefinite duration. 

(7) Liability to Execution: X may be taken away from Alf for repayment of a debt. 

(8) Power of Transfer: Alf may permanently transfer (1)–(7) to specific persons by consent. 

To have a property right is to have some bundle of these rights. Now conceptually there is no problem with reconciling the bundle of rights view with full ownership: if one holds all these rights in an unlimited way, one is the owner of X in the classic sense. However, in any advanced economy many (indeed, most) of these rights, liberties and powers will often be fragmented in some way. For any X, these rights (or, as they are called, “incidents”) can be, and very often are, divided up among many different parties in complex ways. Suppose X is a case of [6] real property, such as a house. One may sell his right to live in the house (rent it), put it in trust (in which case the trustee does not have the right to use it uneconomically), sign over to a historic commission the right to change the exterior, agree to a covenant with one’s neighbours about acceptable exterior colors, and agree not to sell it to parties not approved by one’s neighborhood association. On the other hand there may be a law that does not allow you to refuse transfer on the basis of race; it may be mortgaged, in which case it may not be able to be taken in payment of debt, and one may not have the right to destroy the house. If there are zoning laws there are many uses that are precluded; if it used as a business, it may be illegal to exclude some persons on the grounds of race or ethnic origin. If there are building codes, many changes may be illegal. And many of these dispersions of rights may occur at the same time. Thus the question “who is the owner?” may be answered by saying there is no owner, that there are many owners, or picking out some crucial incident such as the right to exclude (see section 3) and saying whoever has that incident is the owner (but even this incident can be fragmented: think about a case of a business that has the right to exclude on some grounds but not on race or ethnicity). But nothing seems to turn on this: whatever decision one makes about how to identify the “owner,” the rights will be divided in whatever way they are: who holds what rights, powers, and liberties is what is important, not who gets the honorific title of “owner.” 
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Gaus is refrering to the famous article by A.M Honoré, “Ownership” in Oxford Essays in Jurisprudence, edited by A. G. Guest (Oxford: Clarendon Press, 1961): 107-47.

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