For the parcelling of land into real estate is not, as we might be tempted to suppose, a simple geometrical affair. Real estate is a complex historical product of interaction between human beings, legal and economic institutions, and the physical environment. The space of real estate as such is thus opposed to physical, geometrical, and even geographic space. The unique character of real estate as the human space par excellence has been eloquently summarized by Rousseau:
The first person who, having fenced a plot of ground, took it into his head to say this is mine and found people simple enough to believe him, was the true founder of civil society.
There are many theories concerning the origin of real estate. What we
might call the Rousseau-Hobbes theory asserts that real estate arises when
raw land is fenced and these fences are secured and policed via
state power. A more liberal view would assert that real estate is a function
of trust, mutual respect, existence of neighborly habits, and similar informal
social institutions. On the first view real estate is ontologically dependent
on police and state power; on the second view it is ontologically dependent
on certain customs and habits which might have existed even prior to the
existence of the state.
The Importance of Landed Property
The fundamental importance of landed property, as opposed to other types of property, flows from the fact that, without land, it is difficult (perhaps impossible) to obtain credit, and without credit it is difficult for nations and regions to develop. Land constitutes the most fundamental type of security, a feature which turns on its non-perishability and on the fact that it cannot be easily stolen, lost, destroyed, or counterfeited.
The foundational role of land and of real estate in general --including
buildings-- is dictated also by the fact that all societies and all human
activities --not excluding sleep and death-- take up space, a resource
whose utilization is standardly subject to the pressure of demand by other,
competing users. Moreover, all societies and all human activities manifest
a spatial organization which varies systematically from culture to culture
and from age to age. There is only one space, which we all must share,
and compete with each other for the use of --each of us, in contrast, has
his own time. You and I can compete for the use of a given volume of space
in a way that we cannot compete for the use of a given stretch of time.
Stretches of space, moreover, can be embellished, can be added to and improved
upon, in a fashion which again does not apply to stretches of time. Stretches
of space can, above all, be bought and sold.
The Need for a General Ontological Framework
Our analysis of land and real estate differs from existing investigations in the following sense. It does not begin by addressing normative or political or legal or economic issues pertaining to different institutions of landed property across the globe. Rather, we seek to use the tools of ontology to answer the question of what landed property is. More precisely, since we do not wish to presuppose that there is only one answer to this question which could be applied to all cultures and times, our investigation seeks to provide a general ontological framework within which different institutions of landed property (and of landed non-property) can be contrasted and compared.
To be sure, existing analyses of property downright ignore the ontological
dimension of property. Consider the first few sentences of Andrew Reeve's
highly informative survey article on the philosophical dimensions of property:
Property undoubtedly has a central place in arrangements surrounding social life, a place so central that some writers have claimed that it is impossible to imagine anything which could be called a society without some property institution. A moment's thought suggests that property is a key element of an economic system, a major concern of the legal system, and a focus of political dispute.(1)
This passage neatly captures the different perspectives from which property is typically analyzed: political, legal, or economic. The sort of question which an ontological analysis of landed property promotes is conspicuously rare: What is a land parcel? What is the difference between a land parcel and raw land? What is the difference between owning and possessing? These foundational questions are ignored, and others (no doubt important) questions are given preference: What is the justification of property rights? What are the economic implications of this or that system of landed property? It is our thesis the latter set of questions can be better understood after the former set of question is analyzed.
Those rare studies which have attempted to free the analysis of property from the strictures of the political or legal or economic concerns, have nevertheless been unable to develop a full-blown ontology of landed property. First of all, these attempts do not distinguish sufficiently (sometimes they do not distinguish at all) between landed property and other types of property. But also, these attempts fail in that they fall squarely within the very limits they try to expand. For example, Honore's analysis of ownership (Honore, 1961) is still concerned with the concept of property as it is found in highly developed legal systems.
The general, ontological framework that we favor also provides a neutral vocabulary for the discussion of normative and evaluative issues and for unprejudiced and unblinkered comparison of different institutional and cultural arrangements. Many cultural differences regarding the treatment and conceptualization of space have never been analyzed scientifically. Rather, such differences are presented as picturesque and somewhat amusing tidbits. Edward T. Hall, for example, discusses interesting differences between Western nations and their respective psychologies of space.(2) There are, he tells us, huge differences between British, German, and French cultures regarding for example notions of intrusion, privacy, and order. Hall uses these differences in an attempt to explain different habits regarding the volume at which people speak, their patterns of eye movement, their tones of voice when talking on the phone, their policies regarding behavior on the threshold of offices or homes, and many other curiosities.(3)
Such superficial differences in the ways in which different cultures divide, categorize, and conceive space, point to more profound differences in underlying spatial ontologies. Recent developments in geographic information science and in other disciplines of cognitive science have begun to show how the tools of ontology can be applied to a number of different aspects of the spatial dimension of human experience.
Investigations dealing in non-trivial fashion with issues of comparative
law, specifically dealing with issues of landed property, do of course
exist in the literature. But such legal approaches to our problem fail
too, for two distinct reasons. First, they overlook the cognitive and ontological
dimensions of landed property. Second, comparative legal approaches are
focused overwhelmingly on pragmatic interests of lawyers; they therefore
tend to underestimate theoretical distinctions and similarities; very rarely
do we encounter the attempt to establish a general theory of the institutions
compared. Most commonly legal comparative analyses are carried out with
forensic goals; they are comparable to travel guides, designed to allow
a lawyer from one culture to gain some vicarious familiarity with the legal
institutions and practices of another.
The Ontology of Land
In attempting to construct a general ontology of land and real estate we confront familiar issues pertaining to the nature of rights in general and of property rights in particular. But we also encounter hitherto unnoticed questions relating to the identity conditions of land parcels and associated entities. We shall attempt to show that these and related questions can usefully be addressed via the methods developed by ontologists in other fields.
Bentham has eloquently expressed the metaphysical nature of property:
There is no image, no painting, no visible trait, which can express the relation that constitutes property. It is not material, it is metaphysical; it is a mere conception of the mind.(4)
Yet, in spite of the obvious metaphysical import of property, few metaphysical
analyses of property, and even fewer metaphysical analyses of landed
property, have ever been attempted. When does a given land parcel begins
to exist? When is a given land parcel, at some given time, genuinely identical
with what is putatively the same land parcel at another time? How are our
answers to this and similar questions affected by the possibility of physical
change in the land itself, by political changes in the corresponding or
surrounding cultures, by change in occupancy of the land or in the claims
made upon it by others? Some of these issues, at least, have analogs in
more traditional philosophical issues pertaining to questions related to
the ontological status of works of art and other cultural entities, personal
identity, to ontological versus epistemological vagueness, to questions
of identity across possible worlds, etc.; some of them belong to a new
territory of the ontology of legal entities.
Landed Property and Sorites Paradoxes
The ancient Sorites paradoxes shed light upon a highly complex philosophical issue: vagueness. The earliest Sorites paradoxes, attributed to Eubulides of Miletus, consisted of puzzles aimed at showing how difficult it is to fix a crisp boundary between the state of affairs whereby something is properly described in one way, and that state of affairs in which this description is no longer adequate. For example, with Eubulides, is a man with one hair in his head a bald man? If yes, then is a man with two hairs in his head a bald man? If yes, what about a man with three hairs, four hairs, and so on until we have a man with two million hairs. At what point does the man stop being bald? The solution to this paradox involves appealing to sophisticated metaphysical and logical investigations.(5) Baldness is said, then, to be a vague concept, insofar as it is not clear when someone is bald and when someone is not bald. There are many other concepts which are vague as well, such as maturity, intentionality (of actions), happiness, etc.
Landed property is affected by vagueness in hitherto unexplored ways. First, the concept of a property right in general --but more so (as shall become clear) in the case of landed property in particular-- is itself a vague concept. It is not clear when some state affairs whereby someone has the capacity to interact with an object (a land-parcel, for example) is properly characterized as illustrating someone holding a right, or merely holding power over the thing. An important difference between property and possession turns on the distinction between rights and powers, as we shall see below. And this distinction is itself vague; after all, when does a mere power become a right is often difficult to establish.
Second, vagueness affects the very collection of rights which constitute a property right. That is, how many --and which-- rights must a person have in relation to a given land parcel, in order to be considered the owner of the parcel. Say a person holds the right to use, to enjoy the usufruct, and the right to subdivide a given land parcel, does this person owns the parcel? Complex cases in which many rights over land parcel are in the hands of one single person, yet he does not own it can be better understood as instances of Sorites paradoxes.
Third, some legal-technical concepts of 'land' are vague; houses, animals,
rights themselves, and other entities can sometimes be considered real
estate, in the legal sense. The crucial element in deciding whether something
counts as 'land' or not is whether or not the object can be moved or not.
The distinction between movables and immovables is itself vague; there
are, strictly speaking, no immovable objects. Of course, from the legal
perspective it is convenient, perhaps even necessary, to stipulate that
certain objects are immovable, land being the paradigmatic example. Yet,
the stipulatory, conventional nature of the distinction between movables
and immovables points in the direction of the vagueness of the distinction.
On the Nature of Landed Property
Our goal, therefore, is to apply ontological methods to the comparative study of policies of land ownership, registration, and demarcation around the globe in order to provide a comprehensive understanding of land and landed property.
The space of landed property is, as we have called it, human space. Real estate is a product of deliberate or intentional activity of human beings.(6) Regarding this aspect, parcels of real estate are indeed similar to works of art. Moreover, the familiar distinction between aesthetically pleasing natural objects such as sea shells and butterflies on the one hand and works of art on the other, maps rather neatly onto that distinction between bare physical land and real estate. Both works of art and real estate are the result of human intervention: in the case of works of art it is creativity which sparks the human intervention; in the case of landed property it is socio-economic needs.
The most primitive relationship between human beings and land (and for that matter, between human beings and things in general) is that of power (dominion, faculty, authority over). It is for the sake of the resulting power over land that social groups become sedentary, that wars are fought, and that nations are built. Of course, we can also have power over other things which are not land, such as toothbrushes, guitars, books, pets, and so on; but, in principle, nations are not built, and wars are not fought, and nomadic way of life is not abandoned, for the sake of power over these sorts of entities.
Property can in first approximation be conceived, a la Hohfeld, after the model of a bundle of sticks, each stick signifying a particular right, a right to use, to possess, to sub-divide, to rent, to build upon, to enjoy the usufruct from, and so on. An owner can, in certain cases, give away specific rights, or see these rights removed, divided, or amended by the force of others. Dealing with landed property in which the sticks have dwindled or been transformed in this fashion can be a very complex matter.(7)
It is important to point out, however, that the property right itself is in no way affected by the dwindling of the rights (or powers) that make up the property right. As Reinach has eloquently put it:
If property were a sum or unity of rights, it would be reduced by the alienation of one of these rights, for a sum necessarily disappears with the disappearance of all its parts. But we see that a thing continues to belong to a person in exactly the same sense, however many rights he may want to alienate; it makes no sense at all to speak of a more or less with respect to belonging. The nuda proprietas in no way means that the owning "springs back to life" once the rights transferred to other persons have been extinguished; the thing rather belongs to the owner in the interval in exactly the same sense as before and after... This is the essential necessity which underlies the so-called "elasticity" or "residuarity" of property and which can hardly be reasonably considered as an "invention" of the positive law.(8)
Each of the sticks that make up the property right can, in principle
at least, be the object of negotiations independently of the remaining
sticks in the general cluster, and whatever the outcome of such negotiations,
the property right remains --ontologically speaking-- intact. Someone can
give away some of the sticks without giving away the property over the
thing in question. Thus it is not uncommon, particularly in jurisdictions
(such as that of Japan, for example) affected by strict policies of rent
control, to see cases in which someone has given away virtually all sticks
in the bundle (in this case to a tenant with extensive and well-secured
rights) except the residual property right over the thing itself. This
is a peculiar situation, insofar as someone who has given away all or most
of the sticks seems to be in no relation with, to hold no power over, the
thing in question. What is the point of holding someone to be the owner
of a thing, if that someone has no substantive right over the thing, and
cannot use, sell, sub-divide, or possess it? Antarctica is, incidentally,
a somewhat analogous case in the plane of international law: its parts
are owned by separate nations, yet these separate nations are not allowed
to exploit the corresponding parcels of land in any way, since only scientific
research is permitted by treaty. (The Moon is, at this writing, subject
to similar treatment.)
The Special Case of Property Rights in Land
It is not just in the case of land that property rights are properly to be conceived as a complex, structured bundle. But two interconnected reasons explain why it is specially in the case of landed property that problems pertaining to the distribution of sticks are so important. First, some of the sticks (or rather: some of the negotiations relating to the sticks) make practical sense only in relation to landed property. Although the owner of, say, a painting, has strictly speaking the right to sub-divide it, it seems unlikely that he will ever seek to exercise this right. It seems similarly odd to suppose that someone might give away the right to use a washing machine or toothbrush for long periods of time while retaining title to the goods in question. In most such cases it seems that when someone gives away a specific stick from the bundle then he is actually giving away the full right of property over the object in question. Second, it is primarily in landed property cases where these maneuvers are commonly carried out, precisely because there are here more sticks in the bundle. And --because of what we have pointed out as the central economic importance of land-- it is only in these cases that corresponding complex legal institutions have grown up in reflection of the different dimensions of rights involved.
Consider, for example, my property right over a watch: it is easy to see that the bundle of sticks which comprise this property right, can only with difficulty --and even then still only partially-- dwindle or be transformed. Can we meaningfully talk about subdividing, or building upon a watch, or harvesting the usufruct from? What purpose is served by giving away the possession or the use of a watch while maintaining ownership over it? The age-old aphorism "in movable goods possession presupposes property" is, under this light, quite accurate. Most of the sticks in the bundle of rights which constitute landed property are much more varied and complex than in relation to other types of property. Leasing, time-sharing, owning shares in a social club, borrowing, sub-dividing, using as collateral, and many other practices are examples which demonstrate the range of possibilities here.
An important reason for the differences between landed property and
other types of property turns on the special character of the object itself
over which the property right applies. The idea of a parcel of land is,
as we shall see, in greater need of clarification than is, say, that of
a watch or lawnmower. The metaphysics of real estate must provide an account
not only of the precise make-up of the bundle of sticks which comprises
a property right in general, and of the structure of that rather problematic
entity which is a parcel of land, but it must also provide an account of
the interplay between these two --and this in such a way as to do justice
to different human cultures.
The Nested Hierarchy of Land
A further reason for the special character of landed property as against other sorts of property turns on the existence of neighbors. My land borders your land which, in turn, borders someone else's land. Where land is brought within a system of landed property this standardly involves a whole network of persons and a corresponding partitioning of the land in such a way that the property each person owns is anchored to the property of his neighbors, in a reciprocal fashion that is peculiar to landed property.
Another peculiarity of landed property turns on the phenomenon of spatial nesting. This is illustrated in the simplest case by the renting of parts or jurisdictions within a larger whole, for example of apartments within a building. More complicated nesting occurs when whereby the simple relation of ownership between a person and a thing in a Hobbesian state of nature becomes transformed into a relationship involving what might be a nested hierarchy of distinct institutions. For a complete account of our subject-matter must deal also with the role of (local, regional, national) government agencies at different levels, each of which is responsible for one or more aspects of the land or property within the corresponding jurisdiction.
Erik Stubkjaer presents an interesting study of what he calls the "socio-economic spatial units" (SEU) relevant to Danish law. He distinguishes four main types of SEU.
1) A jurisdiction, of which the prototype is the nation or state.
2) A place, exemplified by towns, market-places, squares and similar entities.
3) A region, exemplified by areas which are delineated, for example, in view of scientific research.
4) A district, exemplified by an area within which a public administrative body is to fulfill its function.(9)
All four of these categories have in common the fact that in each case the SEU is defined in terms of a power relation of some sort to a person or group of persons. Moreover, they also share the fact that SEUs are not physical entities, they rather are, as Stubkjaer echoing Frank suggests, "non-physical properties of an area which can be moved without any movement of material"(10) Note that real property is distinguished from other SEUs, however, in the fact that it cannot be (easily) moved. Later he claims "SEUs are not areas, they are SEU precisely because they are determined by a societal as well as physical reality". Stubkjaer considers, moreover, that real estate is a SEU:
A real property has an area, it covers a section of the surface of the Earth, but the essence of the real property is the relation between the owner and the land: the domination, the cultivation, the base for living [the power, in our terms]. Furthermore, without a society a person would hold land in possession rather than own it.(11)
As the case of Poland clearly shows that political and administrative
SEUs are spatial shadows cast on the surface of the earth by human activities
of certain special sorts. Parcels of landed property in contras are such
as to overlap with real segments of the earth and thus enjoy real physical
properties. They can move in certain special circumstances such as earthquakes,
but then only if there is genuine movement of material.
Different Sorts of Power Over Land
It is clear that the owner of the land has some power over it: it is not clear, however, exactly in what this power consists. Other familiar powers over land come to mind, such as, for example, the power that the state has over land, even when that land is privately owned, or those powers over land arising from someone having leased a given parcel of land. It is not always easy to distinguish between these powers, insofar as they have traditionally been viewed as belonging to the subject-matters of separate disciplines. Morris Cohen, echoing Montesquieu has put it succinctly:
Property and Sovereignty, as every student knows, belong to entirely different branches of the law. Sovereignty is a concept of political or public law and property belongs to civil or private law. This distinction between public and private law is a fixed feature of our law-school curriculum.(12)
The distinction between public and private law is so ingrained in contemporary academic culture that our project of treating powers over land on an equal footing, regardless of whether they arise in the public or private spheres, will raise eyebrows in certain circles. If we are right, however, then the foundations of real estate lie as much in the dimension of (different kinds of) power over land as they do in the physical dimension of land itself. Hence a general ontology of real estate will require in turn a general theory of all of the specific powers that can obtain in different cultures.
Let us, then, focus upon that fundamental feature of landed property: which is power over the land --and leave aside, for the moment at least, contingent and a posteriori distinctions between powers or dominions of different sorts. Moreover, the standard distinction between public and private law will then be inconvenient for our purposes for two reasons.
First, it is anachronistic, for such a wedge between the two realms does not do justice to the state of affairs in earlier times. In feudal Europe, for example, the distinction between powers over land that arose from sovereignty and powers that arose from property simpliciter was not clear at all. In fact, the very separation of sovereignty from property is of importance for our purposes, not least because it helps us to understand those cultures in which this separation has not yet taken place. The inseparability of landed property from some form of what we now would call public rights is acknowledged by Morris Cohen, for the case of medieval England: "Ownership of the land and local political sovereignty were [in this period] inseparable".(13) Legold, King of Belgium, owned Congo. Otto Brunner has analyzed the cases of Austria and Germany at length:
In Germany, as we like to say, the modern state developed at the level of the individual territories, not at the level of the empire. German constitutional historians trace these territories back to the late twelfth century, with the appearance of the territorial lord or prince (the "princepts terrae" or "dominus terrae")... A territorial prince's lordship, originally a complex of diverse rights joined together in the hands of a lord, gradually became a unified whole. Beginning around the fifteenth century, the prince developed a unitary governmental power that transformed the medieval territorium into the "territorial state" of the sixteenth century.(14)
The complex of diverse rights that the medieval prince had was composed of rights that we nowadays would consider to belong some to the sphere of public and some to the sphere of private law. These rights we are here calling powers, in tune with our attempt to get at the root of the issues; the term 'right' is in more need of clarification than is the term 'power'; but more importantly, in different eras and in different cultures what has been understood for property is more accurately described as a 'power' than as a 'right'. (Rights, for example, indicate some sort of reciprocal relation whereby other person has a corresponding duty, which is not always present in all cultures or at all times.)
Second, such a sharp distinction between the public and the private spheres hinders the understanding of those non-Western ontologies of landed property in which this distinction plays little or no role. (To this issue we shall devote a section below.)
In fact, a tension between unbridled allodialism on the one hand and the tendency towards some form of (Marxist) abolition of private property is visible in most cultures and in most eras. A general ontology of land and real estate can help to ease and understand this tension. Brendan Edgeworth, regarding the tension between allodialism and extreme governmental interference over privately owned land in Anglo-Australian jurisprudence, has stated the following:
The feudal imagery of English constitutional theory postulated the sovereign
as the only true public person. As Michael Walzer describes it, "All other
men and women [are] private, limited in their function, dependent, members
of the body politic only because of the unifying role of the king" Ordinary
citizens, or, rather, subjects as they are more accurately and conventionally
termed in monarchical constitutional theory, are analogously in the sphere
of property law, mere "tenants" holding of a superior lord. The French
phrase captures the condition perfectly -- Nulle terre sans signeur,
no land is without an overlord.(15)
On the Distinction Between Rights and Powers
The distinction between a right and power needs to be analyzed further. This is a difficult distinction, and some have even suggested that there is no difference between these two concepts, or at least that the one must be defined in terms of the other. Ockham, Spinoza, and Hobbes (and perhaps Locke too), among many others, are all examples of this view. The convenience of our strategy regarding our preference for 'powers' over 'rights' should already be clear, particularly in light of the comparative approach we espouse. But a further theoretical consideration must emphasize the fact that this is indeed a necessary move.
One of the most enlightening and valuable discussions of rights is Alan R. White's.(16) White tells us that rights and powers are different in many respects (ad in so doing he expresses his disagreement with the previous authors mentioned). White puts forth six rather convincing arguments in support of his thesis that powers and rights are indeed different --"both within and without the law".(17) Most of White's arguments hover around the idea that rights, unlike powers, need to be justified, and it is upon this issue that e wish to focus. White tells us that
the notion of power goes with those of ability and of authority; while the notion of right goes with those of entitlement and justification. To ask what gives you the power to V is to ask what enables or authorizes you to V; to ask what gives you the right to V is to ask you what entitles you to V. Being given the length of X may enable, but cannot sensibly entitle, you to discover or calculate the length of Y... Unlike rights, powers can be great or feeble, failing or increasing, effective or ineffective. Rights need a justification, whereas powers can be arbitrary.(18)
There are many occasions in which having a power over a thing and having a right over that same thing overlap (occasions in which the two faculties are almost indiscernible). Our thesis, however, is that powers tend to be physical, whereas rights are more frequently based on more abstract constructs. The physicality of powers explains why their holders are prone to advertise, threaten, and even use physical force in order to protect these powers. White, too, embraces this view, and he explains this difference rather eloquently:
A power is a bit of control over others, while a right is a bit of freedom from the control of others. Sovereigns seek powers, while slaves seeks rights. There is a sort of hierarchy with powers at the top and rights at the bottom.(19)
Rights are, necessarily, a social construction, whereas powers are not. (Strictly speaking, our investigation is concerned with property powers, and not with property rights. Moreover, the expression 'property rights', were we to press this issue hard enough, would be mistaken, insofar as there are only property powers, whatever ensuing rights being always ancillary to the powers.)
A recent attempt to apply orthodox ontological tools to the analysis of unorthodox entities is carried out by John Searle in his The Construction of Social Reality.(20) Searle opposes brute facts to institutional facts. Brute facts are those facts which exist independently of human conventions. Institutional facts are characterized by the fact that, as a consequence of human convention, some power is being given, taken away, or in some way transformed. Searle does not distinguish between rights and powers; as a matter of fact, whenever he speaks of powers in the realm of institutional facts he really means right in our sense. After all, having a power, in our sense, is typically a matter of brute facts. Searle claims, in any case, that the primitive term in the creation of social reality is power (rights). This insight is extremely valuable, and in our case it constitutes the cornerstone of our analysis of landed property.
Real and Personal Rights
The first building block in the ontology of real estate is constituted by the distinction between real and personal rights. In spite of the differences between institutions of property rights, some characteristics of property rights in general are shared by each and every culture where property rights exist at all. Thus, a property right always relates a person (or group of persons) to a thing (or group of things). An ancient but still valuable usage divides all rights into 'real' and 'personal'. Personal rights, also known as obligations, relate one person to another person; examples of rights of this sort are common: the right of an employer to demand work from his employee, the right of a bank to demand payment from a debtor, and so on. Real rights, in contrast, relate a person to a thing. Property rights are, it should be clear, the paradigmatic example of real rights, but other real rights would include rights of possession, and rights over goods securing obligations.
But to say that a real right links a person to a thing is slightly misleading.
Part of what is involved in this relation is a special sort of link between
this person and the rest of the universe of persons. If someone owns, say,
a watch, then everybody else is required by law and custom to respect the
exclusive rights of the watch-owner. In contrast to personal rights, other
persons are here not required to do anything in particular, but merely
to refrain from acting in certain ways. This brings forth an additional
peculiarity of landed property, insofar as the relevant requirement to
refrain from acting is in certain cultures substantially weakened: the
rest of the community is in some cases more and in some cases less strictly
required to abstain from violating the corresponding rights of owners.
Squatters everywhere, and agricultural workers in nations which have embraced
agrarian reforms attest vividly to this fact, as also do rights of way
(servitudes), bridlepath rights, and similar institutions. The usual rigid
exclusion rights that landowners have over their land parcels are in many
cases limited when they keep these land parcels idle; we shall investigate
the implication of such phenomena in the context of a discussion of the
agrarian reform. reforms attest vividly to this fact, as also do rights
of way (servitudes), bridlepath rights, and similar institutions. The usual
rigid exclusion rights that landowners have over their land parcels are
in many cases limited when they keep these land parcels idle; we shall
investigate the implication of such phenomena in the context of a discussion
of agrarian reform.
The concept of a thing [Sache] in no way coincides with that of a bodily object, even if positive enactments would restrict it to this. Everything which one can "deal" with, everything "usable" in the broadest sense of the word, is a thing: apples, houses, oxygen, but also a unit of electricity or warmth, but never ideas, feelings or other experiences, numbers, concepts, etc.(21)
Things are easily divided into movable and immovable. Land is the quintessential immovable thing. The term 'real estate' then refers precisely to those immovable things which are the objects of (real) rights.
But, is land really immovable? For lawyers and legal scholars, this question must surely seem absurd, and they will answer it without hesitation in the affirmative. From a more sophisticated ontological perspective, however, matters are here not so clear. For there is a range of types of immovable things, a treatment of which will shed light upon the fictional nature of legal (positive) immovability.
The standard classification of immovables stipulates four types:
1) Immovables by nature; the paradigmatic examples of which are land-parcels, edifices (including buildings), and plants adhering to the soil.
2) Immovables by destination; here the best examples are agricultural machinery, animals associated to cultivation, and so on. These are all movable things that the law 'immobilizes' in order to account for the strict relationship of dependence in which these objects stand to other objects which are deemed immovables by nature.(22)
3) Immovables by the object to which they are applied; this category pertains to rights. This is a bold fiction of the law, for as Planiol points out "rights, being incorporeal are, strictly speaking neither movables nor immovables. They are not tangible. They take up no room".(23) A classification of rights into movable and immovable can therefore be made only by attending to the object to which the right applies. If the right applies to an immovable thing, then the right is deemed immovable, if the right applies to a movable thing then the right is deemed movable.
4) Immovables by declaration; finally, the immovables by declaration are the most fictional of all immovable things, insofar as their immovability is just a consequence of an individual's wish. Someone may, for example, just declare some specific good to be immovable (for example, someone may declare artwork in her own house to be an immovable). There are stark differences from country to country in the way that immovables by declaration are provided for and dealt with.
As can be clearly seen, the extent to which the immovability of these objects depends on legal fictions varies considerably in these four general cases. But it is hardly ever admitted that even in the case of land there is an element of fiction involved in its putatively immovable nature, and even in those rare cases where this element is indeed admitted, it is not further investigated. Planiol, for example, refers to the immovable by nature as follows:
Strictly speaking, there is nothing which is absolutely immovable. Even the elements which compose the soil, rocks, sand, minerals, may be displaced. When a canal is dug, when lots are leveled it is the soil which is transported. In America, engineers have displaced large buildings without demolishing them. In Paris, the fountain du Palmier on the Place du Châtelet was set back in its entirety to permit the opening of the Boulevard de Sebastopol. But the law does not envisage the possibility of movement with the same rigor as mechanics. The law holds those things to be immovable [by nature] which are immovable in a durable and habitual manner and whose function is to be immovable, even if they may be displaced, in some cases, by extraordinary means.(24)
Land moves, too, of course, with the movement of the earth (and our
ontology of land must take account of this fact if it is to do justice
to the extension of property rights in land to the moon and distant planets).
Land Parcels As Multi-Layered Entities
A land-parcel is not a simple two-dimensional region delineated on the surface of the earth: it is a three-dimensional solid which includes points above and below the ground level. A land-parcel can deviate from simple two-dimensionality also in the following sense: land is multi-layered in the sense that there are ontologically distinguishable aspects of what is, from a geometrical point of view identically the same territory. Thus there are layers of geology, of archeology, of history and pre-history, of ecology, of rights of way, and so on, and the state can own (or have property rights in) some or all of these layers even in those circumstances where a private person is the ostensible owner of the plot of land simply conceived.
The specification of the height and depth of the three-dimensional solid differs again from culture to culture. In the United States, for example, the owner of a given parcel of land in fact (and in law) owns a cone-shaped portion of land projecting from the center of the earth and reaching as far as the ear can hear. In other places these determinations are effected in different ways. One of the specific prerogatives which the state has in Latin America is that it owns the whole of the subsoil in the country, no matter who owns the surface of the land. If someone owns a land-parcel, and finds gold some few inches below the ground, this gold becomes the property of the state. Of course, this presents us with the problem of determining how to fix a boundary between the surface and the subsoil. It seems odd, to say the least, that a hand-made hole of merely a few inches constitutes a penetration in the state's exclusive property. Note, too, that the problem, faced by even developed institutions of property law, of providing a clear demarcation of the boundary between soil and subsoil (as also between soil and aerial space), is analogous to the problem of drawing a line between territorial and extraterritorial waters. The latter, however, is similar in turn to the problem of providing a clear demarcation between neighboring land-parcels or between neighboring political jurisdictions. The former is an issue for collective resolution or fiat, the latter is a case for reciprocal negotiations between the parties involved. Collective fiat decisions can be made where no other parties are competing for the use of the space involved (as in the case, for example, of the sky above our heads).
At the one extreme, a land parcel is a well-demarcated volume of land
with a maximal set of known, determinate property rights which are assigned
to a given individual (or group), and which are well-respected on all sides.
At the opposite extreme a land parcel is a zone, with one or more focal
points or focal areas at which customary rights are more or less firmly
assigned to some group, clan, or family (perhaps also to some local king,
baron or tribal chief); these loci are then surrounded by penumbral
areas in which the group's willingness to defend their rights, and outsiders'
propensity to acknowledge them, declines in rough proportion to the distance
from the focal points or centers. Most real-world cases fall between these
Registration of Land (Cadastral and Mercantile Registration)
The third building block in the ontology of real estate relates to the issue of registration. The registration of land is of immense importance for the ontological analysis of landed property in particular, whereas the previous two aspects we have analyzed (the division of rights and the division of objects) were important for property in general. There are two important issues that a registry must establish: the exact boundaries of a parcel, and the chain of successive transactions dealing with the relevant property right (or some one or more of its constituent sticks). In many cultures these two services are carried out by one single registry; in other cultures the corresponding institution is only concerned with recording the boundaries of land parcels in what then is known as a cadastral registry. This may be centralized, as in continental European countries, or widely dispersed (privatized) as in the United States. The growth of the cadastral boundary systems standardly involves not only the reciprocal establishment of boundary lines between pairs of neighbors, but also, and hand in hand therewith, the development of nested administrative boundaries of successively larger also with a system of nested at scales (sub-divisions, neighborhoods, parishes, villages, counties, states, etc.).
The registry that is concerned with documenting the legal history of the transactions affecting each piece of land (the traditio) is known as the registry of deeds, or mercantile registry. Some cultures --above all Bedouin and gypsy cultures but also some sedentary aboriginal and tribal groups-- do not have cadastral or deeds registration at all. (Some of these cultures do not even have the institutions of buying and selling landed property. What they do have is an issue to be addressed later.)
Registration affects landed property in two different ways. First, it serves as an aid to knowledge, both in establishing who owns a given parcel of land and in establishing where a given parcel ends and another begins. Second, registration has an ontological effect, for the existence of a system of registration alters the institution of land itself, its status and structure. The first function of registration contributes to avoiding and resolving legal disputes, especially boundary-disputes. The second function is little understood and has to do with the ontological notion of dependence. Crudely put, some entities (planets, deserts, rocks) exist independently of human conventions and stipulations, while others (the international Date Line, the American Constitution, NATO, the pound sterling) exist only in virtue of (are ontologically dependent upon) sometimes highly complex systems of cognitive acts, beliefs, and expectations on the part of human beings
A land parcel, too, is an instituted entity of this latter sort, and a land parcel with cadastral and mercantile registration is an entity of a different type from what is putatively the same parcel of land without these supporting agencies (as Wyoming, as a constituent state of the federal union is an of a different type from the corresponding non-administered tract of land). A land-parcel in the presence of a defective or unstable or contested registry is likewise a different entity again.
When land is bought, the registry of deeds presents not only who the seller bought the land from, but also how the latter acquired that property, and so on until the original granting of deeds (or some similar act or deed) is reached. Each transaction which affects the property in question must be registered. Highly efficient methods for keeping track of the succession of transactions that take place are of crucial importance, particularly when land serves as warranty or collateral for other obligations, and when account has to be taken of the possibility of fraudulent behavior.
The chronology of all the transactions concerning property in land must go back as far as the first granting of ownership by the state (or emperor, king, etc.). A chain of ownership cannot be left dangling in midair, as it were, because each claim of ownership has to be referable back to a certification of origin. This is a sort of axiom of foundation in the theory of landed property. (Incidentally, it is only with respect to claims of property in land that such a certification must be capable of being made. Regarding movable things, in contrast, the age-old axiom "possession presupposes property" settles the scores.)
Anyone can claim to have a right over a given parcel of land by demonstrating
that there was at some point a mistake in that typically long chain of
transactions, and that therefore the land was wrongly sold, gifted, inherited,
and so on.
A host of problems faced by many individual nations concerning their
slow domestic growth, as well as problems faced collectively by nations
concerning international credit allocation, arise at least partially from
the absence of a method for analyzing and evaluating differences in the
treatment of landed property. The metaphysics of real estate should help
us in the design of such a method. Some of the specific advantages that
this new branch of applied philosophy can yield include the development
of a spatial interlingua for knowledge-and-data-exchange in the domain
of land and landed property. The sophisticated categorial systems with
which metaphysicians are familiar should help reveal the deficiencies and
the advantages of different systems of landed property, and therefore it
should be crucial in the identification and resolution of structural inefficiencies
currently endemic in the work of domestic and international credit institutions.
Moreover, the metaphysics of real estate should lead to new insights concerning
the necessary and universal characteristics of a philosophically viable
theory of landed property.
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7. 7 Another metaphor applied to property rights refers to them as 'elastic', so then when all the rights are possessed by the same person, the property right is inflated, and it deflates as these individual rights are given away.
15. 15 Brendan Edgeworth, "Tenure, Allodialism, and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared After Mabo V. Queensland", Anglo-American Law Review 23 (1994) pp. 413-414.
20 John R. Searle, The Construction of Socail Reality, New York: Free Press, 1995