What we mean by ‘property’ 35

5Does Hohfeld regard owners as having a claim-right to use the thing they own, or only a privilege? If only a privilege, is this consistent with Honore´’s conception of the right to use as one of the core incidents of ownership?

2.2. Private property, communal property, state property and no property

2.2.1. Introduction

If we revert for the moment to using ‘property rights’ as a loose portmanteau term meaning ‘property interests’, we can say that so far in this chapter we have been looking at property rights held by individuals (or more accurately legal persons, i.e. adult humans or legal constructs such as companies that have a legal personality separate from that of their human representatives). These are private property rights. However, individuals are not the only entities who can hold property rights. In some circumstances, property rights in things can be held by communities, i.e. groups of individuals identified by reference to a particular locality (for example, the residents of Camden) or by reference to membership of a particular class or ethnic or tribal group (for example, the Murray Islanders in Mabo v. Queensland (No. 2) (1992) 175 CLR 1, discussed in Chapter 4) or by reference to some other general defining characteristic. We can characterise these property rights as communal property rights. Equally possibly, the state may hold all the property rights in a thing, and allocate the use of the thing to particular citizens by administrative rather than property rules. We would characterise this as public or state property.

Classically, political and economic theory seeks to distinguish private, communal and state property rights, and to establish that a regime recognising only one of the three to the exclusion of the other two is by some measure or other superior.

There are well-recognised difficulties with such analyses. First, there are definitional inconsistencies. There is no consensus over what constitutes communal property and state property or (a separate issue) where the dividing line between the two falls. There is not even a clear line between private property and state property: is a state ruled by an absolute ruler who governs by the principle that all rights in things vest in him for the benefit of himself (in other words, the law enforces no rights in things other than his rights in things) a state property regime or a private property regime which vests all property rights in one person? Secondly, there are intermediate positions between the three absolutes, and it is arguably more accurate to describe the range of interests as a continuum rather than as three self-contained categories. Finally, regimes that recognise only one of the three to the exclusion of the other two exist only in the realm of fantasy.

In this chapter, we are concerned primarily with establishing the distinctions between no-property, communal property, state property and private property. In Chapter 3, we return to these distinctions when we consider the economic