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LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
2004
JURISPRUDENCE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the lectures in the course
and in understanding the recommended reading. The outline is not a substitute for the
lectures and reading. The outline is not intended to be comprehensive. Students who
have merely familiarised themselves with the outline but not attended the lectures and
read the prescribed text and readings will be inadequately prepared for the exam and at
substantial risk of failure.
Commencing with the November 2001 semester, examination questions will increasingly
ask students to apply the concepts and arguments taught in the course to an issue or
problem. Students will be best prepared to deal with the paper who have attended the
lectures or weekend schools and read widely.
LECTURE 11
THE CONCEPT OF PROPERTY
Introduction
Lawyers recognise that the notion of property refers not to the things which are usually
objects of property, land, chattels and the like, but to the rights the law confers in regard to
those things.
Property is created by law granting rights against the world, or rights in rem in regard to
particular things. To say that I own my car or home is a shorthand way of claiming a bundle
of rights in regard to the car or land in question. The bundle of rights, giving one property in
something, usually include: 
The right to possession

The right to use

The right to manage
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
The right to the income from the thing

The right to the capital or to increases in its value

Immunity from expropriation

The power of transmissibility

The absence of a term
In addition to the above rights, one usually has certain obligations flowing from ownership, in
particular: 
The duty to forebear using the thing harmfully

Liability to have the thing taken in execution by creditors
We also recognise that the type of rights conferred by law which we regard as property rights
may attach not merely to land and chattels but to intangibles such as intellectual property
rights. This field is expanding to include such things as genetic patents and computer
programs.
Many jurists have proposed a general theory explaining and supporting the grant of property
rights. Such a theory would almost certainly be a moral theory.
Utilitarian arguments for property

Some argue that the greatest happiness of the greatest number or the maximisation of
satisfied preferences will be achieved by organising society in such fashion that
individuals have rights to private allocations of property.

This argument does not suggest that we have any moral right to either property in general,
or to particular items of property, simply, that society will go better if we maintain the
institution of private property.

Appeal is often made to a psychological argument to the effect that people work harder or
more productively if they have a private stake in the outcome, and this is best done by the
institution of private property.
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Private property as a liberty protecting institution
Some jurists (eg Frederick Hayek and the contemporary philosopher Robert Nozick) argue
that if we seek to abolish or ban private property or organise society without it there will of
necessity be far more interference by government in peoples’ lives and the way they live. In
this view private property is not itself virtuous but a condition of living in a fashion which
protects individual liberty and privacy.
The first acquisition argument
Occasionally we acknowledge being the first to claim something as a reason for entitlement
(eg, getting to a restaurant or cinema early and putting a coat on a chair). While this may be a
convenient institution in simple situations it is wholly unclear why being first to claim
something should give one a moral entitlement against others. The argument is especially
weak in regard to property which endures. If you claimed Blackacre before me merely
because you were born before me and got there first, your claim appears to have little
justification. Nevertheless first acquisition has some significance in international law
regarding territorial disputes.
Locke’s labour theory of value
The most influential attempt at providing a moral argument for a right to property was that of
John Locke, the great English philosopher (1632-1704). His views on natural law and
government were outlined in his two treatises’ on government written in 1679 and 1680 but
not published until 1690, and his Essay Concerning Human Understanding, also published in
1690. Locke argued for a right to property in the following fashion: Step 1:
Everyone owns his own person
Step 2:
It follows from Step 1 that each person owns the labour of his body and mind.
Step 3:
When you mix your labour with something you have acquired that was
existing in a natural state, you have joined something you owned with
something you did not own.
Step 4:
If Step 3 is satisfied then a person owns that thing that they have mixed with
their own labour.
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Step 5:
A proviso to the argument is that when one has appropriated something that
existed in a natural state, one must leave enough in common for others.
One difficulty with the argument is that it is unclear why, even if I own my labour, I should
own whatever I mix it with. As Robert Nozick has argued, it is just as consistent that I should
lose what I own when I mix it with something I do not own.
The second version of Locke’s argument overcomes some of the difficulties just referred to.
The argument proceeds after Step 3 in the following fashion: New Step 4:
When I add my labour to something I did no previously own, I add to the value
of that material previously existing in a natural state.
New Step 5:
It would be unjust for others to gain the value which I have created by adding
my labour to what was previously existing in a natural state.
New Step 6:
I am entitled to the product with which I have mixed my labour since it would
be unjust for anyone else to appropriate that added value.
Problems in regard to Locke’s argument

The second argument depends upon it being unjust that anyone but me gain any added
value that my labour has created. However, if I was adequately compensated, why would
it then be unjust to take the property from me if I was not otherwise properly utilising it?

The idea of leaving enough in common for others limits the scope of the argument,
especially in our overcrowded world.
Arguments about self ownership of one’s body and mind

This part of Locke’s argument seems to be the most persuasive. Most of us consider that
we have some moral right of self-control and dominion over ourselves. Part of the moral
wrong of slavery is that it infringes this principle.

Locke’s argument led to a long line of theories that identified value in anything produced
or manufactured, with the quantity of effort or labour that had gone into the product.

Marx’s labour theory of value is based upon this, and his concept of exploitation, and his
belief that there would be a revolution to overthrow capitalism, derived in part, ironically,
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from this labour theory of value.

On the other hand, isn’t this notion of mixing labour or value with inanimate matter
metaphysically suspect?
Locke and ownership of land
Locke believed that his argument could be applied to ownership of land. Whoever went out
and cleared the forest and made the land capable of being cultivated thereby acquired
ownership of it.
It is unclear in regard to land why one would acquire ownership of the land, merely by
clearing it for agriculture, as opposed to ownership of the crop.
Locke believed that there was still unallocated land in his time. This was because Locke
believed that the native peoples of North America had not acquired ownership of their land.
Locke believed that they were hunter/gatherers who merely lived from the wild fruits from the
land but did not mix their labour with the land. It followed that they therefore acquired no
property in the land and were not dispossessed by European settlers.
Locke also believed that the use of land by cultivators was a benefit to native peoples.
Emeric de Vattel expanded Locke’s argument. It was wrong, he said, when many people were
living on parts of the earth where resources were scare through over population, that other
people should enjoy large tracts of land which were under utilised. They were taking up more
of the earth’s surface then needed.
The influence of arguments of this sort as justifications for the doctrine of terra nullius is
clear. (See Mabo No.2 (1992) 175 CLR 1 at 33 per Brennan J).
Justifying inheritance
If one looks to the labour theory of value as the underpinning for our concept of property it is
unclear why we should permit free testation. My dominion over myself and the moral claims
that flow from it would, one would think, end on my death. How can I have an interest or
right to dictate what will happen to my property after I have ceased to exist.

Locke argued that as people are subject to a principle of propagation, in bringing people
into the world they acquire an obligation to preserve them, and they are not therefore
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proprietors of their property solely for their use, but in part for the assistance and care of
children.

Locke argued that therefore children had rights in regard to parent’s property and upon the
death of the parent the right of the child became absolute.

Locke’s argument would justify limited rights for children or immediate family members
to make a claim but would certainly not uphold the right of people to dispose of property
at their whim to friends or charities.

There may be good utilitarian or rational choice arguments for justifying testation.
Righting historical wrongs
The end of the 20th Century has seen numerous demands for restitution for historical wrongs.
These have been made by native peoples (Australia’s aborigines, native North Americans,
etc) and those whose property was taken by communist or fascist regimes. Many of these
claims depend upon the notion of a moral right to property which has been violated.
There are complex counterfactual problems in justifying a moral right to rectify old historical
wrongs since the current generation of claimants may not have even existed if the wrongs had
not been committed, since even the wrongs themselves almost inevitably constituted a
necessary part of the historical chain of cause and effect.
Solving the problem of historical wrongs by way of restitution also raises important issues in
distributive justice. Should we simply distribute property now in order to maximise satisfied
preferences or other utilitarian goals or perhaps satisfy the principle of equality, or should we
be concerned with tracing and correcting past injustices?
New issues for the concept of property
Locke’s concept of property was built on the argument that we own ourselves. The issue of
that ownership and what it involves has now been made more significant by developments in
medical technology.

If I own myself, do I, and should I, have a moral right to dispose of the tissues of my body
as I see fit. Do I have a moral right to sell one of my kidneys to improve my material
position in life?
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
Should I own my genotype? Should I be able to sell it? (The United States Supreme Court
appears to deny I have such property rights).
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April 2004