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• J Med Ethics
• v.33(11); 2007 Nov

Property and the body: Applying Honoré

This paper argues that the new commercial and quasi‐commercial activities of medicine, scientists, pharmaceutical companies and industry with regard to human tissue has given rise to a whole new way of valuing our bodies. It is argued that a property framework may be an effective and constructive method of exploring issues arising from this. The paper refers to A M Honoré's theory of ownership and aims to show that we have full liberal ownership of our own bodies and as such can be considered to be self‐owners.

The exponential rise in the use, and uses, of human tissue by medicine, scientists, pharmaceutical companies and industry has given rise to a whole new way of looking at our bodies. Our bodies, along with their part and products, have acquired a value that is different from any traditional conceptions of value in the body. This change has been prompted by the commercial and quasi‐commercial activities of the aforementioned people and industries. One of the results of these activities is that we are now, more than ever, concerned about questions of what can and cannot be done with our bodies and their parts and products. However, in order to explore and solve conflicts that arise in this area, we need an appropriate framework within which to work. Since the new concerns surrounding the body and its tissues are essentially about issues of control and of ownership, one approach might be to consider each of us as a self‐owner and our bodies, and human tissue in general, as being subject to property, or at least quasi‐property, rights.

Self‐ownership and the concept of the body as property are sometimes rejected on the grounds that their acceptance might lead to practices considered by some to be morally objectionable. Such practices might include the sale of organs, the right to engage in prostitution and the right to sell or give oneself into slavery. In addition, self‐ownership could entail claims that we own our bodies and also our detached parts and products and could be taken to include our sperm and eggs and, by extension, our embryos, our fetuses and even our children (see boxes 1–3).

Further reading

For further discussion of some matters referred to, see the following works.

Regarding self‐ownership

• Jansen RPS. Sperm and ova as property. J Med Ethics 1985; 11 :123–6.
• Joralemon D, Cox P. Body values: the case against compensating for transplant organs. Hastings Cent Rep 2003; 33 :27–33.
• Munzer SR. An uneasy case against property rights in body parts. Soc Philos Policy 1994; 11 :259–286.
• Nelkin D, Andrews L. Homo economicus: commercialization of body tissue in the age of biotechnology. Hastings Cent Rep 1998; 28 :30–9.
• Davidson JOC. The rights and wrongs of prostitution. Hypatia 2002; 17 : 84–98.

Property, ownership and self‐ownership

• Calabresi G. Do we own our bodies? Health Matrix 1991; 1 :5–18.
• Cohen GA. Self‐ownership, freedom, and equality . Cambridge: Cambridge University Press, 1995.
• Gold RE. Body parts: property rights and the ownership of human biological materials. Washington DC: Georgetown University Press, 1996.
• Harris JW. Who owns my body. Oxf J Leg Stud 1996; 16 :55–84.
• MacPherson CB. Property: mainstream and critical positions. Oxford: Basil Blackwell, 1978.
• Munzer SR. A theory of property. Cambridge: Cambridge University Press, 1990.
• Nozick R. Anarchy, state, and utopia. Oxford: Basil Blackwell, 1974.
• Waldron J. The right to private property. Oxford: Clarendon Press, 1988.

Slavery and self‐enslavement

• Hare RM. What is wrong with slavery? Philos Public Aff 1979; 8 :104.
• Kufflick A. The inalienability of autonomy. Philos Public Aff 1984; 13 :271.
• Kant I. The metaphysics of morals . Cambridge: Cambridge University Press, 1991.
• Mill JS. On liberty and other essays . New York: Oxford University Press, 1991.

Lockean labour theory

• Locke J. The second treatise of government: an essay concerning the true original, extent and end. In: Laslett P, ed. John Locke, Two treatises of government: a critical edition with an introduction and apparatus criticus. Cambridge: Cambridge University Press, 1964.

It is perhaps because of these seemingly radical end points that one might want to dismiss self‐ownership out of hand. However, considering the body within a property framework may be an effective and constructive method of approaching difficulties arising from the changing conception of value associated with it. Of course a property framework is not the only way to explore the question of what can and cannot be done to our bodies and parts; another way might be within traditional notions of battery and trespass to the person. However, implicit in these approaches is the concept of a damaging act, and our consideration of an individual's rights with regard to their body and our concerns over the use and control of our bodies and of their parts and products are not confined to considerations solely to do with damage. A property framework, however, can deal with these and is therefore a useful one. By including the body in the list of things which we now call property, we place it within a normative framework which can help to identify what issues really divide us when considering dilemmas about the use and control of our bodies and their parts.

The aim of this paper is to place the human body within a coherent property framework (for further reading, see boxes 1–3). For reasons which will be elaborated upon below, the model of property I use is that of A M Honoré. 1 Specifically, I want to show that if, as Hillel Steiner maintains, self‐ownership consists in our having “full liberal ownership of our bodies” (p 232), 2 and if, as Honoré 1 claims, having “full ownership” consists in our holding most of the elements of ownership, then we can be said to be self‐owners if we can be shown to hold most of these with regard to our bodies.

Honoré, property rights and self‐ownership

In trying to determine what ownership actually is, Honoré set out an account of what he conceived to be the standard incidents of ownership. Through a review and analysis of the jurisprudence in property, he arrived at a set of 11 rights, duties and other elements which, taken together, give an account of ownership. These incidents of ownership are as follows:

1) the right to possess

2) the right to use

3) the right to manage

4) the right to the income of the thing

5) the right to the capital

6) the right to security

7) the right of transmissibility

8) the right of absence of term

9) the duty to prevent harm

10) liability to execution and

11) the incident of residuarity. (p165) 1

According to Honoré, for full ownership in a thing to be recognised, an individual must hold most (but not necessarily all) of these elements regarding that thing.

This analysis incorporates the Wittgensteinian concept of family resemblance. Wittgenstein uses the example of games and shows us that there is no single characteristic or group of characteristics that all “games” have in common. There is, however, “a complicated network of similarities overlapping and criss‐crossing: sometimes overall similarities”. 3 In the context of Honoré's incidents, this addresses a major problem that is often associated with theories of property and ownership—namely, that not all things generally considered to be property share all the same characteristics or sets of characteristics. Honoré's approach is open and flexible, because while each of the eleven incidents of ownership may not be applicable to things we consider to be property, each item within the “group” of property will share similarities and relations with other items in the group. It is this openness in the theory which is its advantage over other theories of property and ownership, such as those derived from Lockean natural rights theory (which is more usually used as the basis of self‐ownership theories) (see boxes 1–3). It is also because of this that his theory lends itself to considerations of the body as property more aptly than other theories.

Honoré and the human body

Honoré's conception of property, however, is rarely applied to the realm of the body and that of human biological materials. Indeed, Honoré himself claimed that “a person does not either ‘own' or ‘have' his body or liberty” (p 180), 1 and that in the case of the self, the parallel with ownership is not convincing. However, when he wrote the original paper in 1960, transplant surgery was in its infancy, stem cells had only just been discovered and a multitude of medical technologies and applications utilising the body and its parts and products were decades away. The development of these and the commercial and quasi‐commercial activities surrounding them means that we necessarily have to think about and treat the body in a manner different from that envisaged by Honoré and his contemporaries.

Björkman and Hansson went some way to incorporating Honoré's incidents into a theory of bodily rights, 5 but they rejected Honoré's application of Wittgenstein's concept of family resemblance to the incidents of ownership. They do this on the reasoning that “it does not seem to be a specific enough tool for analysing ownership in modern capitalist societies”(p 211). 5 However, it is exactly this lack of specificity that is the strength of this theory of ownership, especially in its application to the human body.

The adaptability of Honoré's theory shows how the body might be considered property on some occasions or in some situations but not others. For that reason, it simply does not matter if it is concluded that, for example, the right to the income of the thing when applied to the body does not include the sale of body parts. And it is not a fatal flaw to conclude, as Munzer did, that several incidents are missing in relation to the human body and its parts 6 (although he does argue that we may have limited property rights in our bodies). The theory's flexibility appositely manages such perturbations. Such a formulation means that the theorist who is minded to reject self‐ownership because of some of the radical extensions mentioned earlier—such as the sale of organs, or slavery—can still embrace the conception of self‐ownership set out in this paper. The normative framework of the model can help us to move on from abstract disputes about ownership itself and to identify what issues really divide us when considering dilemmas about the use and control of our bodies and their parts that have arisen in the new quasi‐commercial climate surrounding human tissue. This, in turn, can lead to debate which is more focussed, more fruitful and, ultimately, more likely to be resolved one way or the other.

Applying the incidents

If, as Steiner contends, self‐ownership consists in our having “full liberal ownership of our bodies” (p 232), 2 and if, as Honoré contends, having “full ownership” consists in our holding most of the elements of ownership, then we can be said to be self‐owners, and to have property in our own bodies, if we can be shown to hold most of these incidents with regard to our bodies. This is important because if it can be shown that the body satisfies the criteria for property, anybody who believes in private property ought to be committed to treating it as such. In addition, if we start from a position of self‐ownership, this at least raises the presumption of property in the body's separated parts and products.

To investigate how Honoré's incidents might relate to the body (here I use the words “body” and “self” interchangeably), I now want to look at each of the incidents and some possible applications of each. The application of many might not be especially contentious, and I will only briefly dwell upon these. There are, however, some incidents (or aspects of them) which could be seen as more controversial. These are those which Munzer would deem to be “missing” and which other authors might claim to be “inalienable” or “non‐tradable”(p 212). 5 As explained above, however, Honoré's theory, because of its Wittgensteinian heritage, can accommodate differences in the incidents required in order to call the body property.

1. The right (claim) to possess

According to Honoré, this is the right to have exclusive physical control of a thing. He maintains that there are two aspects of this control: the right to be put in control and the right to remain in control. The notion of being put in control of our bodies may seem odd, because there is the question of who puts us in control: our parents, the state, or something or someone else? The answer to this may actually incorporate all of these. There is, it seems, an implicit set of rules which governs us from the day we are born until we have become adults. Within these, as we grow and mature towards competent adulthood, we are gaining ever more control over our lives and our bodies, being permitted to do more and more. Whether or not we can identify the exact giver(s) of that control matters less, since it is clear that we do indeed gain this control. More importantly, once we are in control, it is embedded in this right that others should not interfere (without permission) with it. That society concurs with this is most clearly in evidence through our law of habeus corpus.

2. The right (liberty) to use

Two interpretations of “the right to use” are identified by Honoré. The first, broad, interpretation sees “use” as encompassing “management” and “income”; however, these are more appropriately encompassed within incidents 3 and 4. The second, narrower, interpretation “refers to the owner's personal use and enjoyment of the thing owned” (p 168), 1 and it is this interpretation that applies readily to our bodies. While others can also use our bodies for their “personal use and enjoyment”, they can legitimately do so only with our permission. Even a kiss without permission constitutes a battery.

3. The right (power) to manage

This is the right to determine how and by whom the property can be used. It includes activities such as lending and contracting out. Regarding our bodies, this would mean that, within his sphere of management, the owner has the power to determine the terms of usage and any restrictions that he may put on his body. This incident can be seen as being intimately linked with the right to use.

4. The right (claim) to the income of the thing

The right intended here overlaps with “the right to use”, in that we can understand deriving an income from the property as enjoying the (use of) property. However, on a more legalistic basis, we understand “income” to be money received for work or through investments. Honoré describes this as “a surrogate of use”, as we typically give up our own use of the thing in return for some remuneration. With regard to the body, this occurs whenever we go to work and are paid for our labour. More controversially, this can be seen as occurring where an individual sells their body or body parts or products—for example, hair, blood, semen, kidneys. (Although it is illegal to sell all of these except hair in the UK, there may be a difference between what is unlawful and the normative moral position on this issue.) An example of the temporary selling/renting of the whole body might be prostitution.

5. The right (power and liberty) to capital

This right consists of two aspects: the power to alienate and the liberty to consume or destroy the object. According to Honoré, the power to alienate is the more important of these. This power can be exercised during life or on death, “by way of sale, mortgage, gift or other mode” (p 170), 1 and one can choose to alienate all or part of the object. Munzer maintains that this is one of the incidents that is missing with regard to the body, 6 but there are many instances where we do in effect alienate parts of our bodies and generally do not have any problems with this—as when we have our hair cut or clip our nails, or when we give blood, and indisputably when a kidney is donated to a sick relative or to a stranger. The most extreme interpretation of this right occurs when a person commits suicide. This can be seen to involve both destruction and alienation of the self.

6. The right (immunity) to security

This is the assurance that a person will remain the owner of their property and will not be forced to give it up without adequate recompense. We can see how this is applied if we look at the example of compensation for wrongful death, which can be seen as recompense for the expropriation to the next of kin or relatives of the deceased. It is compensation for the interest that they had in his body and any income he might have produced through his labour.

7. The rights (power) of transmissibility

This is the power to transfer ownership/one's property rights in the thing to another person. This can be done in any one of a number of ways, such as by simply giving the thing away, through its sale or, at death, to one's successors through a will. Applied to the body, it would be the power to transfer our rights regarding our bodies to another by delegating proxies to take vital decisions for us regarding our bodies. We already do this on a small scale every time we abdicate some aspect of control or decision‐making to others, as when patients seek medical treatment. Given that they often have only limited knowledge of the different treatments for whatever ails them, they may defer to the advice of the doctor as to which is the most appropriate. A radical implementation of the power to transfer one's rights would be the power to enslave oneself and hand over not some but all of one's rights, thereby losing the liberty to be the author of one's own life (for further reading, see box).

8. The right (immunity) to absence of term

This is the owner's right to an indeterminate length of ownership. It is an immunity from the expiration, without justifiable reasons, of one's rights regarding the property. Long‐lived rights are characteristic of property, because what we now call property rights have evolved specifically to deal with things that are long‐lasting, such as land, buildings and personal possessions. These things may even outlive their owner. To the individual, however, what can be more long‐lived than their own body? And they would certainly want their rights of ownership to last as long as they do.

9. The duty to prevent harm (disability)

This is the duty of the owner not to use the property in a way that harms other members of society. In addition, Honoré maintains that the owner must also prevent others from using his property in a way that harms others. To paraphrase an oft‐used example, “I may place my knife anywhere I like but not in your chest”. Equally I may not use my body in a way that harms others, such as the use of physical violence towards them.

10. The liability to execution

This incident recognises the legal responsibility of owners regarding their debts. They are accountable for these and may be liable to have their property seized in payment for them. Although it is perhaps not immediately obvious, this does apply to the body. We are all aware of the threat of bailiffs if a debt remains unpaid. We can settle the debt in a variety of ways, most frequently either by paying with money or by having certain items of non‐cash property taken away from us (such as televisions, furniture, our house). Although we no longer have a debtor's prison in the UK, individuals can still be imprisoned for contempt of court if they refuse to make payments or pay fines following a court order. When this happens, it is clear that the non‐payment of debts does involve the seizing of our bodies.

11. The incident of residuarity (liability)

The last incident I wish to comment on is the incident of residuarity. This recognises that sometimes rights of ownership either expire or may be abandoned. Should this happen, the corresponding rights become vested in or are exercisable by someone else. In certain circumstances this “someone else” may be the state. In relation to the self, this expiration of rights seems, most notably, to occur at death. Here our rights with regard to the self must necessarily cease, as we can no longer be deemed capable of possessing any rights. The rights regarding our body then become vested in another—usually our next of kin. However, some of the rights may become vested in the state, as when a coroner's post‐mortem is required.

In this paper, I set out to place the human body in a coherent property framework. I did this because a property framework can help to identify the issues that divide us in the new commercial climate in which the body and human tissue exist. Specifically, I have used Honoré's theory of ownership. Other theories could have been used, but Honoré's is better and more complete in and of itself, and its Wittgensteinian heritage makes it an open, adaptable and meaningful tool. This flexibility also lends itself more aptly to considerations of the body as property. It might be, as I would argue, that all of Honoré's incidents are applicable to the human body in the manner set out above, but on this theory it is not incumbent upon everyone to agree fully with way in which the incidents are applied in this paper. The “family resemblance” model accounts for and can deal with such differences, allowing for the body to still be considered as property within the theory.

In addition, the paper aims to establish that if self‐ownership consists in our having “full liberal ownership of our bodies”, and if having full ownership consists in our holding most of the elements of ownership, then we can be said to be self‐owners if we can be shown to hold most of these incidents with regard to our bodies. An analysis of Honoré's incidents of ownership shows that the rights, duties and other elements required to give an account of ownership are indeed applicable to the human body. If this is right, then if we are to escape or evade the conclusion that the body is property, arguments strong enough to defeat Honoré's incidents are required. The provision of such arguments is conspicuously absent from the work of those who insist on treating the body as if it (a) is not, (b) could not be and (c) should not be property.

So it seems that when it comes to my body, I can say, with the support of the most complete theory of property that we have, that “I own that” or “that is my property”. We can each claim to have “full liberal ownership of our bodies”, and to have property rights in our own bodies. This also raises, at least, the strong presumption that we own our body's separated parts and products. The implications of this are far‐reaching, extending from simple rights of control over my person to the right to sell my body parts to the right to self‐enslavement. They may also include the theses that we own our sperm and eggs, and also our embryos, fetuses and children, too. While exploring the nature of these hard cases lies outside the scope of this paper and is a job for another occasion, I fully accept that it is because of these hard cases that the applications of Honoré's incidents as I have set them out may be somewhat controversial. However, it seems to me that a society which truly values individual liberty would not shy away from such consequences and the ensuing responsibilities which stem from the “full liberal ownership of our bodies” that each of us ought to be entitled to.

Editorial introduction to ‘Ownership’ by A. M. Honoré (1961)

Antony (Tony) M. Honoré was born in London in 1921 but was brought up in South Africa. He served in the British Army during the Second World War and was severely wounded in the Battle of El Alamein in 1942. After the war, he continued his studies at New College, Oxford, and he has lived and taught in Oxford for well over half a century, holding fellowships at several Oxford colleges. From 1971 to 1988, he was Regius Professor of Civil Law and a Fellow of All Souls College in Oxford. He is internationally known for his work on ownership, legal causation, and Roman law.

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Article Contents

I. introduction, ii. the challenges of centering social relations in private law theory, iii. justifying and delimiting interpersonal responsibilities—potential thomistic guidance, iv. servitudes law: future land-users and non-right holders, v. conclusions.

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Specifying Interpersonal Responsibilities in Private Law: Property Perspectives

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Rachael Walsh, Specifying Interpersonal Responsibilities in Private Law: Property Perspectives, The American Journal of Jurisprudence , Volume 68, Issue 2, October 2023, Pages 141–151, https://doi.org/10.1093/ajj/auad013

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Recognizing Wrongs reflects an ongoing challenge within private law theory: once an ideal of interpersonal responsibility and accountability is recognised at private law’s centre, how are these dimensions of private law to be developed in a manner that does not unduly undermine systemic predictability and clarity? This article responds to this challenge from the perspective of property law and theory. It suggests that inspiration as to the kinds of core unifying values that could clarify private law’s obligational dimensions can be found in varied sources, including in Thomistic property thinking, with opportunities for identifying and developing interpersonal responsibilities already existing in property doctrine, for example in the law of servitudes. As we face urgent sustainability challenges, with their strong inter-generational dimensions, the article argues that scholars should think afresh about the need to clarify the moral basis of interpersonal responsibilities in respect of property, with the Thomistic focus on human sustenance providing one candidate for reasoning about ownership obligations.

In Recognizing Wrongs , Goldberg and Zipursky approach tort law in a manner that resonates strongly with contemporary theoretical approaches to property law, signaling a degree of convergence within private law theory around two key principles: 1) the significance of private law’s relational context; 2) the significance of incremental common law reasoning in articulating and clarifying private law’s relational dimensions. Goldberg and Zipursky echo prominent schools of thought within property theory in emphasizing tort law’s role in establishing duties and responsibilities that facilitate appropriate interpersonal recognition, respect, and accountability. As they put it, “[t]ort law is all about recognizing wrongs. It is equally about recognizing each other. Each of us has a claim on others, just as others have claims on each of us. In this respect, tort law stands both to reinforce and revise an important dimension of social life—the dimension sometimes expressed through the idiom of civil society.” 1 The impact of this approach for judges is significant, as it charges them with delineating and delimiting interpersonal responsibilities in the private law sphere. Goldberg and Zipursky recognize this impact, for example noting, “[j]udges deciding common-law cases are empowered and obligated to decide the dimensions of duties, rights, and responsibilities, and they do so in part by consulting their own understanding of what the law, properly understood, expects of us and what we expect of one another.” 2

In the development and application of property law, judges are accustomed to setting and policing the parameters of property’s “individual” and “social” aspects through common law reasoning. 3 In theorizing about property law, scholars across various schools of thought have long recognized property’s relational dimensions and its socially embedded nature. 4 In particular, “progressive property” theorists identify a plurality of incommensurable values implicated in law-making and adjudication in respect of property, which necessitate complex, contextual balancing by judges, legislators, and administrators. 5 Social obligations, social relations, obligations of attentiveness, and human flourishing have variously been advanced as concepts and values that can guide this process and assist in delimiting the interpersonal responsibilities created by property relations. 6

In practical terms, these concepts seek to both structure and explain complex common law reasoning about the limits of private ownership, and about the duties that are appropriately owed in respect of the possession and use of external things. However, critics have identified the weight placed by such theories on ex post judicial decision-making as a threat to the stability of property as a legal and social institution. 7 In responding to this criticism, progressive property theories have struggled to articulate clear criteria that could assist judges in achieving reasonable predictability concerning the scope and content of property’s “social aspect.” 8 Progressive property has faced challenges in demonstrating how to reconcile the management of plural, incommensurable property values in legal adjudication with the need to avoid excessive destabilization. 9 These challenges are equally likely to confront a tort theory such as that developed by Goldberg and Zipursky that places relationships and obligations, and an ideal of interpersonal responsibility and accountability in respect of such relationships and obligations, at its center. How are judges to articulate and develop these dimensions of private law in a manner that does not undermine systemic predictability and clarity within private law?

To enrich these overlapping debates in property theory and tort theory about private law’s social and relational dimensions, this article revisits Thomistic ideas about the function and moral justification of individual possession of external things. The aim is not to advocate for any rigid application of Thomistic property thinking, or for any direct translation of that theory into contemporary private law theory. Any such endeavor ought to be approached very cautiously given the wholly different social and economic context in which Aquinas wrote and the theological dimensions of his broader theory of law. 10 More modestly, I suggest that inspiration as to the kinds of core unifying values that could clarify the dimensions of interpersonal responsibilities in private law can be found in varied sources, including in Thomistic property thinking.

Such guidance could inform efforts in property theory, and in other branches of private law theory, to explain the basis and content of our interpersonal obligations. From a practical perspective, it could illuminate doctrinal rules that have heretofore eluded coherent explanation, allowing for more structured, predictable reasoning in the application and development of private law. At a general level, I seek to initiate further scholarly discourse on the spaces that already exist in incrementally developed common law doctrines for exploring the relationship between private law doctrine and theory—for examining how existing doctrine can be better understood through new theoretical lenses; and for exploring how doctrine can better ground and contextualize private law theory.

Part 1 briefly maps the “progressive property” theory landscape and the critiques levied against it, particularly in respect of stability and predictability and the challenges of balancing and weighing incommensurables in the context of a pluralistic understanding of property’s values. Part 2 revisits Aquinas’s limited justification for private possession of material resources, focusing on how his moral justification for human control of external things—human capacity and entitlement to use material resources for sustenance—in turn sets parameters for judicial reasoning about the limits of legitimate private possession of external things. Part 3 assesses the potential benefits of that approach as a means of structuring practical reasoning in the property context. Finally, Part 4 begins the project of mapping this approach “in action” by examining common law rules that require easements and covenants (‘servitudes’) to be tethered to, and to “accommodate” or “touch and concern,” identifiable land, suggesting that these doctrines could be more coherently understood and developed as legal vehicles for protecting land’s ability to secure human sustenance into the future.

The “Statement of Progressive Property” published in 2009 created a manifesto or charter for the “progressive property” school of thought. 11 Amongst other principles, it argued that greater attention should be paid to the social relations shaped by property, and to the values it serves. Furthermore, those values should be recognized as “plural and incommensurable,” and as capable of generating interpersonal obligations relevant to judgments about the interests that should be recognized in law as property entitlements. 12 The Statement contended that rational choices amongst values based on reasoned, contextual deliberation are required, drawing upon, “critical judgment, tradition, experience, and discernment.” 13 It further argued that property law should facilitate all individuals in acquiring the resources needed for full social and political participation, and more broadly should, “establish the framework for a kind of social life appropriate to a free and democratic society.” 14 In the years following the Statement’s publication, a range of other property scholars published research that adopted, applied, and developed the broad tenets set out in the Statement. 15

Professor Alexander assumes that collectively we have to be able to get every compromise between aspects of human flourishing correct, and that if we cannot make an appropriate ex ante decision, we must reserve decisions until they can be made ex post. This ignores the benefits of simple ex ante baselines. 18

Smith identifies significant scope for ad hoc decision-making in the progressive property approach, arguing, “if nothing is decided ‘up front and across the board’ and in particular if owners’ exclusion rights have no presumptive force, one’s imagination is the only limit.” 19

Progressive property theorists have responded to this criticism, with for example Alexander arguing, “value pluralism is reconcilable with both rational choice and rule-of-law values such as consistency.” 20 He contends that the accommodation of incommensurable values is to be arrived at through practical reasoning that is “intensely and inevitably fact dependent,” 21 involving an ongoing process of “fitting and refitting until a sense of complementarity … is achieved.” 22 However, this response leaves the predictability critique levied against progressive property theories largely intact, since it makes property’s social aspect the subject of continuous negotiation in the context of both public and private law disputes. While progressive property theorists argue that property standards can generate relatively stable outcomes, 23 in practice standard-based doctrines in property law often generate the kinds of ad hoc , under-reasoned decisions feared by Smith, with “takings” law, or constitutional property law, a prime example. 24 This ambiguity can create space for an activist approach on the part of judges that advances a particular agenda in respect of the relative importance of property’s individual and collective dimensions. 25 Equally, it can facilitate highly deferential judicial approaches to the decisions of political branches of government on that key question. 26 Either way, doctrinal ambiguity tends to impede clear judicial accountability on the appropriate extent of interpersonal responsibilities in respect of property.

This perspective from property begs the question of where scholars can look in attempting to clarify the complex reasoning process that is undertaken by judges in adjudicating upon private law’s relational dimensions. The next part considers the potential of one under-explored source of ideas about those dimensions.

Thomistic thinking about property has the potential to spark reflection and trigger new directions within private law theory. This is particularly the case in the property context as scholars attempt to move beyond recognizing the principle of property’s social aspect towards developing sharper evaluative criteria for determining the scope of property’s social aspect. Perhaps most significantly, Aquinas’s approach encourages scholars to assess property problems in light of the core function of material resources, namely sustaining the life of all humans. Thomistic thinking about property has its roots in a dramatically different social and legal context and lacks a secular foundation, features that weigh strongly against direct application or revival in a contemporary context. 27 Furthermore, Aquinas’s engagement with property issues is for the most part partial and indirect. 28 However, notwithstanding these caveats, Aquinas’s approach to private possession of external things may offer theorists some fresh perspectives on how to delimit, in a more concrete way, interpersonal responsibilities in private law.

The first core question that Aquinas addresses in relation to property is whether it is natural for man to possess external things. He determines that it is, reasoning, “God has supreme dominion over all things; and, according to His providence, He has ordained certain things for the support of man’s body. For this reason man has a natural dominion over things with regard to the power to make use of them.” 29 In this way, he determines that the law of nature prescribes a foundational right for humans to use material goods for sustenance, which is rooted in the natural human inclination for self-preservation. To that end, it is natural for humans to use and manage such resources. Aquinas roots the natural dominion of humans over external things in their “reason and will,” which allow them to make use of such things for their own advantage. 30 Thus, the use of the earth’s resources to support human sustenance is morally justified.

Two things pertain to man with regard to external things. One is the power to procure and dispose of them; and, in this regard, it is lawful for man to possess property. Indeed, this is necessary to human life, for three reasons. First, because everyone is more diligent in procuring something for himself than something which belongs to all or many; for each one, avoiding labour, would leave to someone else [the procuring of] that which was to belong to all in common, which is what happens where there is a multitude of servants. Second, because human affairs are conducted in a more orderly manner if each man is responsible for the care of something which is his own, whereas there would be confusion if everyone were responsible for everything in general. Third, because a more peaceful state of things is preserved for mankind if each is contented with his own. Hence we see that quarrels arise more frequently between those who hold property in common and where there is no division of the things possessed. The other thing which pertains to man with regard to external things is their use. In this respect man ought to hold external things not as his own, but as common: that is, in such a way that he is ready to share them with others in the event of need. 31

Possession is a legitimate and necessary means of ensuring the “good administration” of external things, with that function of possession also setting the limits of justifiable private possession. 32 In particular, legitimate private possession is contingent upon the continuing availability of external things for the use of those in need. As Hallebeek puts it, “[t]he power to care for and exchange external goods may be appropriated, but their use must remain common.” 33 In this way, property has a built-in relational dimension. Private possession is a legal tool for encouraging efficient and stable land-use, which helps to best achieve human sustenance through material resources. However, its limits are set by that fundamental goal, which imposes obligations on possessors in respect of non-possessors in need of basic material sustenance.

Aquinas goes beyond simply recognizing the principle of limited property rights and attempts to fill those limits with content. In this way, he seeks to define the extent of the interpersonal obligations and responsibilities that flow from private possession of external things. From the perspective of contemporary private law theory, which has generally struggled to concretize the social aspects of private law relations, this is a potentially useful aspect of Aquinas’ work on property. He distinguishes between resources that a person needs for his or her survival and for the survival of any dependents, resources that a person needs to meet genuine responsibilities, and other privately-held resources. 34 All property held by an individual beyond what it is necessary for the survival of himself and his dependents is subject to claims based on the absolute necessity of other people, because such absolute need trumps any property rights secured by human law. Where one’s resources are not needed by another person for basic survival, they can be possessed as of right (in accordance with the particular rules set down by human law concerning the distribution of property) insofar as they are necessary to maintain oneself and one’s dependents in a way of life that has been reasonably adopted. 35 Anything an individual possesses that can be classed as being “in superabundance” must be given to the poor. 36

These limits are necessary to ensure that human laws allowing private possession of property do not impede the material sustenance of all persons through the use of external things. 37 As Finnis explains, “beyond a certain point, what was commonly available but was justly made private, for the common good, becomes again, in justice, part of the common stock.” 38 The latter category involves possessions that, as matter of justice, must be made available where needed by others for material sustenance. 39 In practical terms, this means that while the distribution of resources is ordinarily a matter for the property owner, 40 Aquinas regards theft as permissible in cases of urgent need. 41 In addition, anyone can take property from another on behalf of a needy individual. 42 However, Aquinas’ understanding of material sustenance is minimalist, rooted in the social and economic context in which he wrote. In identifying redistributive obligations and exceptions to theft, Aquinas focuses on ensuring equality of access for all persons to material resources urgently required for basic physical sustenance. 43

As well as highlighting the instrumental and qualified nature of the justification for private possession, Aquinas draws an important distinction between the institutional decision to allow private possession for efficiency reasons and resulting individual claims over material resources. For Aquinas, the systemic decision to allow individual possession of external things does not freeze a particular distribution of such things. As a matter of practical reason, it may be deemed prudent within a community to allow private possession to secure the various instrumental benefits identified by Aquinas. Furthermore, given the basic need for human sustenance, it may be deemed necessary to ensure that no groups can be categorically excluded from the possibility of accessing that system, for example through legal rules limiting the categories of individuals who are permitted to possess property. 44 However, those system-level decisions do not determine the appropriate degree of protection for individual possession of external things in particular contexts. Rather, strength of protection for individual possession must be calibrated bearing in mind the need for all humans (including non-possessors) to access the material resources needed for their sustenance.

As Dougherty puts it, according to Thomistic thinking on property, “[i]f the use or consumption of a good could serve the purpose of promoting the political or moral good of society, then the society would be duty-bound to provide the legal guidance necessary to effectuate that outcome.” 45 Legal rules in respect of property must be designed in light of the function and moral justification for private possession, namely securing human sustenance. On this issue, Finnis contends suggests “[r]easonable choice of such rules is to some extent guided by the circumstances of a particular society, and to some extent ‘arbitrary.’” 46 The rules of property law should be derived from, and delimited by, the identification of private possession as ordinarily an efficient means of ensuring human sustenance. This process of derivation and delimitation involves complex, incremental reasoning by judges and other public actors about the appropriate scope of property’s social aspect in different relational contexts.

From an institutional perspective, who should have primary responsibility for undertaking this complex reasoning about moral duties and responsibilities—should that analysis take place within private law, falling to be applied primarily by judges and by individuals, or should it occur in the public law domain, in the formulation of legislative and/or administrative restrictions on the exercise of private law rights? Putting the question another way, is Aquinas’ moral justification of private possession in terms of human sustenance significant as a potential touchstone for individual and judicial decision-making in the private law context, or as a normative basis for public law delimitations of property rights, or both?

On these questions, progressive property has tended not to distinguish between the relative suitability of public and private law contexts for applying its principles. 47 As was already noted, translating Aquinas’ thinking on property—partial as it is, and rooted in an entirely different social and economic context—to current modes of law-making and application is highly contested. 48 However, the likely contemporary public law impact of viewing property’s function through the Thomistic lens seems fairly straightforward. Private possession’s moral justification in terms of facilitating long-term human sustenance would tend to support public law interventions designed to realize that aim. Those could include environmental protection measures that better preserve the earth’s resources, thereby facilitating human sustenance on a sustainable basis. They could also include redistributive measures ranging from taxation to more targeted measures such as rent controls through which governments ensure that all individuals have access to the material resources that are necessary for their sustenance.

However, the private law impact of using the Thomistic justification for private ownership to structure judicial reasoning is less obvious. In the next section, I begin to explore this potential impact through one doctrinal case-study. I map existing servitudes doctrines that require judges to adjudicate bearing in mind not just the interests of immediate beneficiaries of the servitudes, but also the interests of future land-users. These doctrines extend the traditional relational dimension of property law beyond the right-holder and duty-bearer at a particular moment in time, thereby introducing a forward-looking dimension into judicial analysis in the private law context. I suggest that the Thomistic lens offers private law scholars a new perspective on these legal rules, showing how they are aimed at preserving land for the sustenance of future generations of land-users.

Doctrinal rules in property law are predominantly interpreted as focused on relations between right-holders and duty-holders in respect of external things, with the subject of those legal relations (often real property) treated as of secondary importance in both normative and analytical terms. 49 However, some property rules demonstrate a focus on land itself as a relevant factor in structuring and administering property law relations. Where this arises, the object-focus of property law rules has tended to be explained, without much detailed analysis, in terms of protecting the economic value of land into the future, for example by preventing overburdening of land or excessive fragmentation of rights in respect of land. 50 In this way, property’s social aspect is generally framed in rule-design terms as a mechanism for enhancing the efficient use of land. The human and social value of that enhanced efficiency has tended not to be emphasized.

Drawing inspiration from Aquinas, another plausible explanation for these rules is that they facilitate land’s core function of securing the material sustenance of all human beings. They can be understood as sites within the adjudication process wherein judges engage in incremental, multi-faceted reasoning about property’s relational dimensions, with those dimensions extending in temporal terms to unidentified future land-users and to non-right-holders who may need to access or use the land for urgent and basic material sustenance.

Various common law doctrines could be analyzed here. For example, the doctrines of waste and adverse possession have long been understood to require judges to reason about the legal status of current land-use in ways that protect the land’s value and use into the future. 51 However, this article turns to doctrine that has received less scholarly attention, namely rules that govern how property rights can be created as between landowners (usually neighbors) to control the use of land. This category of rights is often referred to as “servitudes” (in English and Irish legal terminology, easements and covenants). Servitudes are sometimes characterized as “private planning control” and as legal techniques that enhance the utility of land. 52 Many jurisdictions are now adapting easements and covenants to achieve environmental conservation objectives.

Significantly, the legal rules that govern the recognition and enforceability of servitudes require that such rights must benefit the land as such rather than merely conferring personal benefits on the holder of the property right in question. As Gordley points out, this is also a feature of the equivalent rules in many civilian legal systems, which require evidence of some “advantage” to the land related to the property rights that control the use of the land. 53 These definitional criteria determine whether the right in question is recognized as proprietary in nature, rather than merely personal—i.e., they are principles that assist courts in policing the property/contract boundary in private law. At the heart of these rules is the idea that enduring rights in respect of the use of land must enhance the use of the land over time, rather than merely conferring a personal benefit on the immediate beneficiaries (and potentially their successors in title). However, both in scholarship and in judicial reasoning, lawyers have struggled to define these criteria and to specify their function, prompting characterization of the law of servitudes variously as a “wilderness” 54 and a “murky subject.” 55

What do we know about what these criteria entail? In English and Irish law, easements must be tethered to land. That is, they cannot exist “in gross,” but rather only in respect of identified benefited and burdened land. As French puts it, “[r]ights that are attached to the ownership and enjoyment of a dominant tract are enforceable as easements; personal interests in, or the right to use the land of another not incident to possession of land are not.” 56 In contrast to the dephysicalized, abstract nature of most contemporary legal reasoning about property rights, 57 in this respect the law of easements retains a strong focus on the material fact of attachment to land. That material fact influences judicial reasoning in identifying such rights as property rights.

More abstractly, easements must benefit (“accommodate”) land in terms of its ordinary use and enjoyment. Famously in Re Ellenborough Park , 58 Lord Greene MR held that it was not sufficient for the legal identification of an easement to show that a right benefiting the dominant tenement increased the value of that property. Rather, to qualify as an easement, it must also be shown that the right relates to the normal use and enjoyment of that property. In applying this test, courts consider what constitutes the “ordinary use and enjoyment” of property of a particular type and the appropriate balance between optimizing the current and future use of land. 59 Various common law tests for the implied acquisition of easements (for example, on grounds of necessity 60 or the rule in Wheeldon v. Burrows 61 ) have also included consideration of the ‘necessity’ of an argued-for easement for the use and enjoyment of the land in question. Overall, the case-law interpreting and applying these requirements in the law of easements has been criticized for a lack of clarity in respect of the purpose of the requirements, and their scope. 62

In respect of covenants, the original common law definition is found in Mayor of Congleton v. Pattison , which holds that a covenant touches and concerns the land if it “affect[s] the nature, quality or value of the thing demised, independently of collateral circumstances; or if it affected the mode of enjoying.” 63 In P & A Swift Investments v Combined English Stores Group Plc , the equivalent requirement that covenants must “touch and concern” the benefited land was explained in similarly broad terms: the right “must either affect the land as regards mode of occupation, or it must be such as per se, and not merely from collateral circumstances, affects the value of the land.” 64 Like the easements rules in respect of “accommodation,” the “touch and concern” requirement has been criticized as unclear, and as creating the potential for excessive judicial discretion to be exercised in gatekeeping in respect of covenants. 65

How have these judicially-imposed constraints on “neighborhood agreements” in respect of the use of land been characterized in functional terms? Most commonly, these requirements are justified in terms of the economic need to avoid overburdening land with unreasonable obligations owed to other landowners that endure into the future. As French puts it, the restrictions on servitudes advance “both fairness and marketability concerns.” 66 The translation of these concerns into legal rules that gate-keep by controlling the types of agreements that are recognized as creating servitudes primarily aims to preserve the salability and general alienability of land, thereby protecting its economic value. Related purposes identified for these requirements include limiting the number of potential claimants with whom negotiation would be required to extinguish a servitude and avoiding the information costs that would be associated with, for example, untethered easements, particularly absent strong recording or registration systems for such rights. 67

However, other rationales have been articulated for these servitudes rules that resonate more closely with the Thomistic focus on private possession’s function of enabling human sustenance. For example, Rose offers an explanation of the requirement that servitudes enhance the value of land in terms of mediating property’s social dimension, arguing “the value constraint is a reminder that a property regime is ‘in rem,’ affecting not only the immediate owners but also the world around them – and the rest of the world may have something to say about their costs and benefits.” 68 Similarly, Gordley characterizes the restrictions imposed on servitudes through judicial reasoning as a means of ensuring fairness to both current and future land-users. 69 Reichmann focuses on the need to protect the autonomy of future generations of land-users against enduring obligations with feudal overtones. 70 Gray and Gray suggest that the requirement in English law that such rights are “tethered” to land serves an ecological purpose as well as ensuring the ongoing marketability of land. As they put it, “[t]he confinement of user to the dominant owner (and his agents or invitees) may, in some circumstances, serve the ecologically important purpose of protecting fragile land from excessive and damaging traffic.” 71

Adding to these alternative explanations for judicially-imposed constraints on servitudes, the requirements that servitudes are “tethered to” and “accommodate” or “touch and concern” land can be understood through the Thomistic lens as creating spaces for judges for reason about the potential impact of enduring property rights on the long-term ability of the land to secure human sustenance. Crucially, the Thomistic perspective demands consideration of the impact of the recognition of private rights on the opportunities for sustenance of all those in need, not merely those who enjoy the use of the benefited and burdened land (either currently or in the future). The interests of both future land-users, and current and future groups who may be marginalized through exclusion from land-use, are factored into incremental, contextual reasoning about the types of private land-use agreements that can be appropriately given enduring legal effect.

As was noted previously, Aquinas’ recognition of entitlements to access resources that are privately possessed by others was narrowly focused on facilitating urgent and basic material sustenance for all persons. However, even at this basic level, his approach introduces a novel relational dimension, and a new temporal dimension, into judicial reasoning about the kinds of private agreements in respect of the use of land that should be given the status of in rem rights. It brings greater specificity to the societal/community dimension that has long been recognized to be embedded within the ‘touch and concern’ and ‘accommodation’ requirements in servitudes law. 72 More broadly, it resonates with the current trend in private law theory towards recognition of private law’s relational and social dimensions as centrally significant. It demonstrates that private law theories focused on the socially embedded, relational nature of legal rules can be grounded in values that can direct incremental, contextual judicial reasoning about the quality of the interpersonal relations that legal rules foster.

Thomistic thinking on property is not suitable for any straightforward transposition into our responses to today’s property problems. Its non-secular basis and its narrow focus on basic physical needs, as well as its embeddedness in a wholly different social, economic and legal structure, all augur against such attempts. 73 However, that does not mean that the framing and focus that Aquinas brought to questions about the scope of our interpersonal responsibilities in respect of material resources is unworthy of consideration by contemporary private law theorists. Given the persistence of ambiguity in both judicial and scholarly reasoning about how to justify and specify the scope of our interpersonal responsibilities in the private law context, all potential sources of guidance should be considered, at whatever level of detail is appropriate. Thomistic thinking on the importance of private possession as a means of efficiently ensuring human sustenance has the potential to refresh and redirect scholarly reflection on the relative extent of property’s individual and social dimensions.

Furthermore, it provides a new lens through which to approach and understand the complex processes of incremental common law reasoning through which core doctrinal areas of private law are articulated and developed. These processes can generate doctrines that appear illusive or confusing, but can in certain respects be illuminated by attempts to theorize their relational dimensions through new perspectives, as illustrated by the brief exploration of the law of servitudes in this article. Deploying the Thomistic perspective on property in the context of the law of servitudes opens a new way of understanding oft-cited goals of property law, such as the need to preserve the economic value of land, to protect the autonomy of future owners, and to safeguard the future use and enjoyment of land. Those goals can be understood, in terms that chime well with a relational, accountability-focused approach to private law, as operationalizing property’s moral function of securing human sustenance on a basis of equality of entitlement to the means of survival.

More generally, the process of re-analyzing servitudes rules through the Thomistic lens shows the value of integrating private law theory and doctrine in attempting to clarify the interpersonal responsibilities that are implicated by private law. It illustrates the potential dividends for tort law and theory of the approach advocated by Goldberg and Zipursky, as well as the challenges that their approach presents for future work that aims to apply it in different tort law contexts. Theory can help us to understand otherwise unfathomable aspects of legal doctrine, bringing order and logic to apparently haphazard legal rules. In turn, a doctrinal grounding helps private law theorists to develop concepts that are connected to law “in action,” generating more realistic and workable theories that can in fact facilitate the better operation of private law rules. However, an approach to private law such as that advocated by Goldberg and Zipursky that focuses on the role of judges in articulating and applying interpersonal responsibilities, and in holding individuals to account in respect of those responsibilities, needs to offer guidance in respect of that complex reasoning process. That is a difficult task, as demonstrated by property theory’s experience with specifying interpersonal obligations. However, it is scholarly work that offers future returns for both doctrine and theory: generating better justified and more coherent doctrine; and more realistically framed and practically operational private law theory.

John C.P. Goldberg and Benjamin C. Zipursky, Recognizing Wrongs (Boston: Harvard University Press, 2020), 350.

Ibid., 363.

For analysis of judicial approaches to this tension in property law, see e.g., Peter M. Gerhart, Property Law and Social Morality (Cambridge: Cambridge University Press, 2014); Rachael Walsh, Property Rights and Social Justice: Progressive Property In Action (Cambridge: Cambridge University Press, 2020).

On this recognition, see Jane Baron, “The Contested Commitments of Property,” Hastings Law Journal 61 (2010): 917-67.

See e.g., Gregory S. Alexander, Property and Human Flourishing (Oxford: Oxford University Press, 2018); Eduardo M. Peñalver, “Land Virtues,” Cornell Law Review 94 (2009): 821-88.

See e.g., Gregory S. Alexander, “The Social Obligation Norm in American Property Law,” Cornell Law Review 94 (2009): 745-819; Joseph W. Singer and Jack M. Beermann, “The Social Origins of Property,” Canadian Journal of Law & Jurisprudence 6 (1993): 217-48; Joseph W. Singer, “Democratic Estates: Property Law in a Free and Democratic Society,” Cornell Law Review 94 (2009): 1009-62; Alexander, Property and Human Flourishing ; Peñalver, “Land Virtues.”

Henry E. Smith, “Mind the Gap: The Indirect Relationship between Ends and Means in American Property Law,” Cornell Law Review 94 (2009): 959-89.

A. M. Honoré, “Ownership,” in Oxford Essays in Jurisprudence (First Series), ed. A.G. Guest (Oxford: Oxford University Press, 1961), 144–45.

See e.g., Joseph W. Singer, “Property as the Law of Democracy” Duke Law Journal 63 (2014): 1287-1335, on the importance of predictability in property law from a progressive perspective.

On these limits on the potential for transposition of Aquinas’s property thinking, see Rachael Walsh, “Property, Human Flourishing, and St. Thomas Aquinas: Assessing a Contemporary Revival,” Canadian Journal of Law and Jurisprudence 31 (2018): 197-222, Rachael Walsh, “Progressive Property’s Thomistic Turn: Connecting Human Sustenance and Human Flourishing,” forthcoming in Handbook on Property Law and Theory , ed. Chris Bevan (Cheltenham: Edward Elgar, 2023).

Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer, Laura S. Underkuffler, “A Statement of Progressive Property,” Cornell Law Review 94 (2008): 743-44.

Ibid., 744.

See, e.g., John A. Lovett, “Progressive Property in Action: The Land Reform (Scotland) Act 2003,” Nebraska Law Review 89 (2011): 739-818; Timothy M. Mulvaney, “Progressive Property Moving Forward,” California Law Review 102 (2014): 295-373; Christopher K. Odinet, “Of Progressive Property and Public Debt,” Wake Forest Law Review 51 (2016): 1101-62; Zachary Bray, “The New Progressive Property and the Low Income Housing Conflict,” Brigham Young University Law Review 4 (2012): 1109-63.

See notably, Smith, “Mind the Gap.”

See, e.g., Alexander, “The Social Obligation Norm.”

Smith, “Mind the Gap,” 968.

Ibid., 981.

Alexander, Property and Human Flouishing , 4.

See, e.g., Joseph W. Singer, “The Rule of Reason in Property Law,” U.C. Davis Law Review 46 (2013): 1389; Marc Poirier, “The Virtue of Vagueness in Takings Doctrine,” Cardozo Law Review 24 (2003): 175.

See, e.g., J. Peter Byrne, “Ten Arguments for the Abolition of the Regulatory Takings Doctrine,” Ecology Law Quarterly 22 (1995): 90-91; Walsh, Property Rights and Social Justice .

See, e.g., the resurgence of a more absolutist level protection for property rights in the U.S. Supreme Court’s decision in Cedar Point Nursery v. Hassid 595 U.S. (2021).

See, e.g., the highly deferential approach adopted by the Irish Supreme Court in adjudicating upon constitutional challenges to legislative and administrative decisions that interfere with property rights, discussed in Walsh, Property Rights and Social Justice .

For detailed exploration of this features of Thomistic property thinking, see Walsh, “Progressive Property’s Thomistic Turn.”

Jan Hallebeek, “Thomas Aquinas’ Theory of Property,” Irish Jurist 22 (1987): 100-101.

Summa theologiae , IIaIIae 66: 1 ad 1. All references to Summa Theologiae are to the translation by RW Dyson, Aquinas: Political Writings (Cambridge: Cambridge University Press, 2002).

IIa IIae 66: 1 resp . On this point, see also A.M. Crofts, O.P., Property and Poverty (Dublin: Irish Rosary Office, 1948), 25.

IIaIIae 66: 2, resp .

Maurice Barbier, “Pouvoir et Propriété Chez Thomas D’Aquin: La Notion de Dominium,” Revue des Sciences philosophiques et théologiques 94 (2010): 663, 667.

Hallebeek, “Thomas Aquinas’ Theory of Property,” 106.

John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 191.

Ibid., 193.

On superabundance, see also Rev. Edward Cahill, S.J., The Framework of Christian State—An Introduction to Social Science (Dublin: M.H. Gill & Sons Ltd, 1932), 558.

Finnis adopts a similar approach in Natural Law and Natural Rights , saying: “[t]he point, in justice, of private property is to give the owner first use and enjoyment of it and its fruits (including rents and profits), for it is this availability that enhances his reasonable autonomy and stimulates his productivity and care. But beyond a reasonable measure and degree of such use for his and his dependants’ or co-owners’ needs, he holds the remainder of his property and its fruits as part (in justice if not in law) of the common stock.” John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980), 173.

Ibid., 173.

IaIIae 66: 2 ad 2. O’Rahilly argued that Aquinas’s teaching on superflua indicates that “there is a quantitative limit to what can be covered by the property-rights of any individual” and that the community as a whole can lay claim to what goes beyond that limit. Alfred O’Rahilly, “St. Thomas’s Theory of Property,” Studies 9 (1920): 348.

Finnis argues that this discretion is not unfettered—an individual’s judgment of his/her needs and the needs of any dependents must be practically reasonable. Finnis, Aquinas , 194.

IIaIIae 66: 7 resp .

IIaIIae 66: 7 ad 3 .

On the urgency dimension and the basic type of need that Aquinas is concerned with, see Walsh, “Property, Human Flourishing, and St Thomas Aquinas”, 219-20.

Such rules are often captured through institutional guarantees for private ownership, which are present for example in the German and Irish Constitutions. See Article 14(1) of the German Basic Law and Article 43(1) of the Irish Constitution.

Richard J. Dougherty, “Catholicism and the Economy: Augustine and Aquinas on Property Ownership,” Journal of Markets and Morality 6 (2003): 491.

Finnis, Natural Law and Natural Rights , 286.

For discussion, see Walsh, “Property, Human Flourishing, and St Thomas Aquinas,” 216-7.

Ibid., 221-2.

See W. N. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law J ournal 23 (1913): 16-59; and W. N. Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 26 (1917): 710-70. For analysis, see, e.g., Albert Kocourek, “The Hohfeld System of Fundamental Legal Concepts,” Illinois Law Review 15 (1920): 24-39, Joseph W. Singer, “The Legal Rights Debate in Analytical Jurisprudence,” Wisconsin Law Review 6 (1982): 975-1060; Simon Douglas and Ben MacFarlane, “Defining Property Rights,” in Philosophical Foundations of Property Law , ed. James E. Penner and Henry E. Smith (Oxford: Oxford University Press, 2013), 219-43.

See, e.g., Jeffrey E. Stake, “Toward an Economic Understanding of Touch and Concern,” Duke Law Journal 1988 (1988): 925-74; Ben W.F. Depoorter and Francesco Parisi, “Fragmentation of Property Rights: a Functional Interpretation of the Law of Servitudes,” Global Jurist Frontiers 3 (1) (2003) https://doi.org/10.2202/1535-1653.1081 .

See, e.g., Jill M. Fraley, “A New History of Waste Law: How a Misunderstood Doctrine Shaped Ideas About the Transformation of Law,” Marquette Law Review 100 (2017): 861-921, and “Finding Possession: Labor, Waste and the Evolution of Property,” Capital University Law Review 39 (2011): 51-83.

See Carol M. Rose, “Servitudes, Security, and Assent: Some Comments on Professors French and Reichman,” Southern California Law Review 55 (1982): 1409.

James R. Gordley, “Servitudes” Global Jurist Frontiers 3 (1) (2003) https://doi.org/10.2202/1535-1653.1080 .

Depoorter and Parisi, “Fragmentation of Property Rights.” On the complexity of servitudes law, see Susan F. French, “Towards a Modern Law of Servitudes: Reweaving the Ancient Strands,” Southern California Law Review 55 (1982): 1265.

Uriel Reichman, “Towards a Unified Concept of Servitudes” Southern California Law Review 55 (1982): 1179. For an argument in favor of the destabilizing effect of the “touch and concern” argument, see Gregory S. Alexander, “Freedom, Coercion, and the Law of Servitudes,” Cornell Law Review 73 (1988): 897.

French, “Towards a Modern Law of Servitudes,” 1267.

See Kenneth Vandevelde, “The New Property of the Nineteenth Century: The Development of the Modern Concept of Property,” Buffalo Law Review 29 (1980): 325-67.

[1955] E.W.C.A. Civ 4.

Stake, “Toward an Economic Understanding of Touch and Concern”.

The Irish Property Registration Authority describes the common law position in respect of easements of necessity as follows: “A right of way of necessity as understood under Irish Law is one implied into the grant of a tenement to provide the grantee with a means of access to that tenement over the lands of the grantor where there is no other available access.” See https://www.prai.ie/registration-of-easements-and-profits-a-prendre-acquired-by-prescription-under-section49a/#:∼:text=Easement%20of%20Necessity,is%20no%20other%20available%20access (last visited 24 th May 2022).

(1879) L.R. 12 Ch. D. 31.

See, e.g., Rose, “Servitudes, Security, and Assent,” noting the “vagueness and circularity” of the touch and concern rule (1409). See also French, “Towards a Modern Law of Servitudes,” referring to the meaning of the touch and concern requirement as “elusive” (1271).

(1808) 103 E.R. 725.

[1989] A.C. 632.

Susan F. French, “Servitudes, Reform and the New Restatement of Property: Creation, Doctrines, and Structural Simplification,” Cornell Law Review 73 (1988): 940.

French, “Towards a Modern Law of Servitudes,” 1290.

Ibid., 1286-7. See also Rose, “Servitudes, Security, and Assent,” on the notice function of various judicial constraints on servitudes.

Carol M. Rose, “Servitudes,” in Research Handbook on the Economics of Property Law , ed. Kenneth Ayotte & Henry E. Smith (Cheltenham: Edward Elgar, 2011), 296-325.

Gordley, “Servitudes.”

Uriel Reichmann, “Judicial Supervision of Servitudes,” The Journal of Legal Studies 7 (1978): 139-64.

Kevin Gray and Susan Gray, Elements of Land Law , 5 th ed. (Oxford: Oxford University Press, 2009), 606.

See, e.g., Rose, “Servitudes”; Lawrence Berger, “A Policy Analysis of Promises Respecting the Use of Land,” Minnesota Law Review 55 (1970): 167-235.

Walsh, “Property, Human Flourishing,” and “Progressive Property’s Thomistic Turn.”

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Classical Liberalism and the Public-Private Division

• First Online: 22 September 2018

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• Chris Berg 4  

Part of the book series: Palgrave Studies in Classical Liberalism ((PASTCL))

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This chapter provides a survey of classical liberal thought as it applies to privacy. Classical liberalism is a political philosophy that focuses on the rights of individuals protected by limited, democratic government under the rule of law and the market economy. The chapter surveys the key ideas underlying classical liberalism as they relate to questions about privacy: individualism, individual rights, property rights, and limited government. The chapter then looks at how three classical liberal authors—John Stuart Mill, Jeremy Bentham, and Benjamin Constant—conceived the role of privacy in their political and philosophical frameworks. Finally, the chapter explores the general dichotomy between the public and private domains, and how classical liberalism understands the significance of the private domain.

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See for instance Karl Marx, “On the Jewish Question,” (1843).

Tibor R. Machan, Classical Individualism: The Supreme Importance of Each Human Being (London and New York: Routledge, 2003), 14.

John Locke, Two Treatises of Government (London: Awnsham Churchill, 1689).

John Stuart Mill, On Liberty (New Haven and London: Yale University Press, 1982). I discuss some of the division between the natural rights and utilitarian approach to freedom of speech in Chris Berg, In Defence of Freedom of Speech: From Ancient Greece to Andrew Bolt , Monographs on Western Civilisation (Melbourne; Subiaco, WA: Institute of Public Affairs and Mannkal Economic Education Foundation, 2012).

The classic statement of this ‘bundle’ of property rights is A.M. Honoré, “Ownership,” in Oxford Essays in Jurisprudence , ed. A.G. Guest (Oxford: Oxford University Press, 1961).

John Kekes, “The Right to Private Property: A Justification,” Social Philosophy and Policy 27, no. 1 (2010).

Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).

Ludwig von Mises, Liberalism: The Classical Tradition (Indianapolis: Liberty Fund, 2005), 52.

F.A. Hayek , The Road to Serfdom , The Definitive Edition ed. (Chicago and London: University of Chicago Press, 2007), 148.

Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (New York and London: Harper & Brothers, 1942); Kenneth E. Boulding, Evolutionary Economics (Beverly Hills, CA: Sage Publications, 1981).

Chris Berg, “Regulation and Red Tape in a Small Open Economy: An Australian Overview,” SSRN (2017).

For a discussion on estimating the costs of this resource reallocation see Clyde Wayne Crews, “Tip of the Costberg: On the Invalidity of All Cost of Regulation Estimates and the Need to Compile Them Anyway, 2017 Edition,” Working Paper (2017).

Gary Banks, “Tackling the Underlying Causes of over-Regulation: An Update,” in Australian Regulatory Reform Evolution (Canberra, 2006).

Bruno Leoni, Freedom and the Law , The William Volker Fund Series in the Humane Studies (Princeton, NJ: Van Nostrand, 1961).

Ibid., 134.

See for instance John Gray, Mill on Liberty: A Defence (London and New York: Routledge, 2014); Alexander Brown, “J.S. Mill & Violations of Good Manners,” Philosophy Now , no. 76 (2009); Jonathan Riley, Mill on Liberty , ed. Tim Crane and Jonathan Wolff, Routledge Philosophy Guidebooks (London and New York: Routledge, 1998).

Jonathan Wolff, “Mill, Indecency and the Liberty Principle,” Utilitas 10, no. 1 (1998).

Eric A. Posner, Law and Social Norms (Cambridge and London: Harvard University Press, 2009), 221.

Miran Božovič, ed. Jeremy Bentham: The Panopticon Writings , Wo Es War (London and New York: Verso, 1995).

This is in large part because of the outsized role Bentham’s Panopticon plays in Michel Foucault, Discipline and Punish: The Birth of the Prison , trans. Alan Sheridan (New York: Vintage Books, 1977).

Colin Tyler, “Jeremy Bentham on Open Government and Privacy,” Journal of Information Ethics 26, no. 1 (2017).

See also David Lieberman, “Bentham’s Jurisprudence and Democratic Theory,” in Bentham’s Theory of Law and Public Opinion , ed. Xiaobo Zhai and Michael Quinn (Cambridge: Cambridge University Press, 2014).

Jeremy Bentham, The Works of Jeremy Bentham (Constitutional Code) , vol. 9, Published under the Superintendence of His Executor, John Bowring (Edinburgh: William Tait, 1838–1843), 303.

Cited in Tyler, 125.

Benjamin Constant, “The Liberty of Ancients Compared with That of Moderns,” in Constant: Political Writings , ed. Biancamaria Fontana, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1988).

Principles of Politics Applicable to All Governments , trans. Dennis O’Keeffe (Indianapolis: Liberty Fund, 2003), 361.

Ibid., 242.

Ibid., 444–45.

Cited in Steven K. Vincent, Benjamin Constant and the Birth of French Liberalism , ed. Anthony J. La Vopa, Suzanne Marchand, and Javed Majeed, Palgrave Studies in Cultural and Intellectual History (New York: Palgrave Macmillan, 2011), 103.

Friedrich Hayek, The Constitution of Liberty: The Definitive Edition (Taylor & Francis, 2013), 209.

Rui Zhu, “Distinguishing the Public from the Private: Aristotle’s Solution to Plato’s Paradox,” History of Political Thought 225, no. 2 (2004).

Jean Bethke Elshtain, Public Man, Private Woman: Women in Social and Political Thought , Second edition (Princeton: Princeton University Press, 1993), 45. See also Susan Moller Okin, Women in Western Political Thought (Princeton: Princeton University Press, 1979).

Carol Hanisch, The Personal Is Political (2006).

Judith A. Swanson, The Public and the Private in Aristotle’s Political Philosophy (Ithaca: Cornell University Press, 1994).

Duncan Kennedy, “The Structure of Blackstone’s Commentaries,” Buffalo Law Review 28 (1978); “The Stages of the Decline of the Public/Private Distinction,” University of Pennsylvania Law Review 130 (1982).

Ayn Rand, The Fountainhead (London: Penguin Books, 2014).

Steven Horwitz, Hayek’s Modern Family: Classical Liberalism and the Evolution of Social Institutions (Palgrave Macmillan US, 2015).

Stephanie Coontz, Marriage, a History: How Love Conquered Marriage (London: Penguin Publishing Group, 2006), 118.

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Tyler, Colin. “Jeremy Bentham on Open Government and Privacy.” Journal of Information Ethics 26, no. 1 (2017): 112.

Vincent, Steven K. Benjamin Constant and the Birth of French Liberalism . Palgrave Studies in Cultural and Intellectual History. Edited by Anthony J. La Vopa, Suzanne Marchand, and Javed Majeed. New York: Palgrave Macmillan, 2011.

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Zhu, Rui. “Distinguishing the Public from the Private: Aristotle’s Solution to Plato’s Paradox.” History of Political Thought 225, no. 2 (2004): 231–42.

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Berg, C. (2018). Classical Liberalism and the Public-Private Division. In: The Classical Liberal Case for Privacy in a World of Surveillance and Technological Change. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-96583-3_2

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Harris Ownership and Property Oxford Classical Dictionary

2021, Oxford Classical Dictionary

Those who owned property in the Greek world enjoyed all the basic rights and duties recognized in all legal systems. They had the right to security against arbitrary confiscation and theft, the right to enjoy the fruits, the right to alienate, the right to manage, and the right to pass on their property to their heirs. Their property could also be seized by the state as a penalty or to pay for fines or by private lenders in satisfaction of debts or other obligations. Property could be owned by private individuals, by private groups, by the state or by subdivisions of the state. In certain cases women had the right to own property, but their rights might be restricted by law. Most Greek communities only allowed citizens to own land unless they obtained permission to acquire land from the Assembly.

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This article is dedicated to Roman heritage in developing a legal concept of land property in the system of civil law. The author studies the origins of land property rights in the main sources of Roman law, especially, the Theodosian and Justinian&#39;s Codes, the Ecloga and Farmer&#39;s Law. Particular attention is paid to the Byzantine influence on the Old Russian law

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