Editing Property (section)

==Issues in property theory==

=== Principle ===
The two major justifications are given for the original property, or the [[homestead principle]], are effort and scarcity. [[John Locke]] emphasized effort, "mixing your labor"<ref>{{cite web |url=http://www.constitution.org/jl/2ndtr05.htm |title=John Locke: Second Treatise of Civil Government: Chapter 5 |access-date=14 May 2015 |url-status=dead |archive-url=https://web.archive.org/web/20150613041353/http://www.constitution.org/jl/2ndtr05.htm |archive-date=Jun 13, 2015 |website=Constitution.org }}</ref> with an object, or clearing and cultivating virgin land. [[Benjamin Tucker]] preferred to look at the [[Telos (philosophy)|telos]] of property, i.e., what is the purpose of property? His answer: to solve the scarcity problem. Only when items are relatively scarce concerning people's desires, do they become property.<ref>{{cite web |url=http://www.zetetics.com/mac/libdebates/ch6intpr.html |title=Intellectual Property {{!}} Copyright and Patent in Benjamin Tucker's periodical Liberty |first=Wendy |last=McElroy |date=11 May 2008 |access-date=14 May 2015 |url-status=dead |archive-url=https://web.archive.org/web/20080706115752/http://www.zetetics.com/mac/libdebates/ch6intpr.html |archive-date=6 July 2008 }}</ref>  For example, hunter-gatherers did not consider land to be property, since there was no shortage of land.  Agrarian societies later made arable land property, as it was scarce. For something to be economically scarce, it must necessarily have the "exclusivity property"—that use by one person excludes others from using it. These two justifications lead to different conclusions on what can be property. [[Intellectual property]]—incorporeal things like ideas, plans, orderings and arrangements (musical compositions, novels, computer programs)—are generally considered valid property to those who support an effort justification, but invalid to those who support a scarcity justification, since the things don't have the exclusivity property (however, those who support a scarcity justification may still support other "intellectual property" laws such as [[Copyright]], as long as these are a subject of [[contract]] instead of government arbitration). Thus even ardent [[propertarian]]s may disagree about IP.<ref>{{cite web |url=http://praxeology.net/anticopyright.htm |title=Molinari Institute – Anti-Copyright Resources |access-date=14 May 2015 |website=Praxeology.net}}</ref> By either standard, one's body is one's property.

From some [[anarchism|anarchist]] points of view, the validity of property depends on whether the "property right" requires enforcement by the State. Different forms of "property" require different amounts of enforcement: [[intellectual property]] requires a great deal of state intervention to enforce, ownership of distant physical property requires quite a lot, ownership of carried objects requires very little. In contrast, requesting one's own body requires absolutely no state intervention. So some anarchists don't believe in property at all.

Many things have existed that did not have an [[owner]], sometimes called the [[commons]]. The term "commons," however, is also often used to mean something entirely different: "general collective ownership"—i.e. [[common ownership]]. Also, the same term is sometimes used by [[Statism|statists]] to mean government-owned property that the general public is allowed to access ([[public property]]). Law in all societies has tended to reduce the number of things not having clear owners. Supporters of property rights argue that this enables better protection of scarce resources due to the [[tragedy of the commons]]. At the same time, critics say that it leads to the 'exploitation' of those resources for personal gain and that it hinders taking advantage of potential [[network effects]]. These arguments have differing validity for different types of "property"—things that are not scarce are, for instance, not subject to the [[tragedy of the commons]]. Some apparent critics advocate general collective ownership rather than ownerlessness.

Things that do not have owners include: [[idea]]s (except for [[intellectual property]]), [[seawater]] (which is, however, protected by anti-pollution laws), parts of the [[seafloor]] (see the [[United Nations Convention on the Law of the Sea]] for restrictions), gases in [[Earth's atmosphere]], animals in the wild (although in most nations, animals are tied to the land. In the [[United States]] and [[Canada]], wildlife is generally defined in statute as property of the State. This public ownership of wildlife is referred to as the North American Model of Wildlife Conservation and is based on The Public Trust Doctrine.<ref>{{cite web |url=http://joomla.wildlife.org/index.php?id=171&option=com_content&task=view |title=The North American Model of Wildlife Conservation and Public Trust Doctrine |url-status=dead |access-date=2012-08-19 |archive-url=https://web.archive.org/web/20120119010211/http://joomla.wildlife.org/index.php?id=171&option=com_content&task=view |archive-date=2012-01-19 |website=The Wildlife Society }}</ref>), celestial bodies and outer space, and land in [[Antarctica]].

The nature of children under the [[age of majority]] is another contested issue here. In ancient societies, children were generally considered the property of their parents. However, children in most modern communities theoretically own their bodies but are not regarded as competent to exercise their rights. Their parents or [[legal guardian|guardians]] are given most of the fundamental rights of control over them.

Questions regarding the nature of ownership of the body also come up in the issue of [[abortion]], [[drugs]], and [[euthanasia]].

In many ancient legal systems (e.g., early [[Roman law]]), religious sites (e.g. [[temple]]s) were considered property of the [[God]] or gods they were devoted to. However, [[religious pluralism]] makes it more convenient to have sacred sites owned by the [[spiritual body]] that runs them.

[[Intellectual property]] and air ([[airspace]], [[no-fly zone]], pollution laws, which can include tradable [[emissions trading|emissions rights]]) can be property in some senses of the word.

Ownership of land can be held separately from the ownership of rights over that land, including sporting rights,<ref>{{cite web |url=http://www.basc.org.uk/media/2001_definition_of_sporting_rights.pdf |title=Definition of sporting rights |website=BASC |access-date=2007-12-31 |url-status=dead |archive-url=https://web.archive.org/web/20080227003852/http://www.basc.org.uk/media/2001_definition_of_sporting_rights.pdf |archive-date=2008-02-27 }}</ref> [[mineral rights]], development rights, [[air rights]], and such other rights as may be worth segregating from simple land ownership.

=== Ownership ===
{{Main|Ownership}}
Ownership laws may vary widely among countries depending on the nature of the property of interest (e.g., firearms, real property, personal property, animals). Persons can own property directly. In most societies [[Juristic person|legal entities]], such as [[corporations]], [[Trust law|trusts]] and nations (or governments) own property.

In many countries women have limited access to property following restrictive inheritance and family laws, under which only men have actual or formal rights to own property.

In the Inca empire, the dead emperors, considered gods, still controlled property after death.<ref>Mckay, John P. , 2004, "A History of World Societies". Boston: Houghton Mifflin Company</ref>

=== Government interference ===
In 17th-century [[England]], the legal directive that nobody may enter a home (which in the 17th century would typically have been male-owned) unless by the owner's invitation or consent, was established as common law in Sir [[Edward Coke]] 's "[[Institutes of the Lawes of England]]". "For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge]." It is the origin of the famous dictum, "an Englishman's home is his castle".<ref name= "Pitt">{{cite web |title=An Englishman's home is his castle |url=https://www.phrases.org.uk/meanings/an-englishmans-home-is-his-castle.html |website=Phrases.org.uk |access-date=6 December 2018}}</ref> The ruling enshrined into law what several English writers had espoused in the 16th century.<ref name=" Pitt"/> Unlike the rest of Europe the British had a proclivity towards owning their own homes.<ref name=" Pitt"/> British Prime Minister [[William Pitt, 1st Earl of Chatham]] defined the meaning of castle in 1763, "The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter."<ref name=" Pitt"/>

That principle was carried to the United States. Under U.S. law, the principal limitations on whether and the extent to which the State may interfere with property rights are set by the Constitution. The [[Takings clause]] requires that the government (whether State or federal—for the 14th Amendment's due process clause imposes the 5th Amendment's takings clause on state governments) may take private property only for a public purpose after exercising due process of law, and upon making "just compensation." If an interest is not deemed a "property" right or the conduct is merely an intentional tort, these limitations do not apply, and the doctrine of [[sovereign immunity]] precludes relief.<ref>See, for example, "[[United States v. Willow River Power Co.]]" (not a property right because the force of law not behind it); "[[Schillinger v. the United States]]," 155 U.S. 163 (1894) (patent infringement is a tort, not taking of property); "Zoltek Corp. v. United States", 442 F.3d 1345 (Fed. Cir. 2006).</ref> Moreover, if the interference does not almost completely make the property valueless, the interference will not be deemed a taking but instead a mere regulation of use.<ref>" Penn Central Transportation Co. v. City of New York", 438 U.S. 104 (1978).</ref> On the other hand, some governmental regulations of property use have been deemed so severe that they have been considered "[[regulatory taking]]s."<ref>See ''United States v. Riverside Bayview Homes'', 474 U.S. 121 (1985).</ref> Moreover, conduct is sometimes deemed only a nuisance, or another tort has been held a taking of property where the conduct was sufficiently persistent and severe.<ref>''United States v. Causby'', 328 U.S. 256 (1946).</ref>