Property – Part 1


One of the consequences of being a wills and trusts attorney for many years is becoming profoundly aware of the legal concept of “property”.  Most people think of property as things that are owned – money, home, car, stocks and bonds or gold.  But those things are the subjects of property.  Property itself is a powerful notion; an idea, not a thing.

Jeremy Bentham thought of property as a legally protected “expectation of being able to draw such or such an advantage from the thing in question”.  Felix Cohen summarized property as something with a label on it that says “To the world:  Keep off unless you have my permission, which I may grant or withhold.  Signed:  Private Citizen.  Endorsed:  The State”.

Private property is a fundamental, constitutional freedom in America.  Historically, there was controversy among thinkers as to the justification for private property (vs. “communal property”).  The issue has long been settled.  Private property is a good, just, moral institution.  Five theories justifying it are:  (1) Occupation – possession of a thing justifies legal protection; (2) Labor – a person has a moral right to own something he produces or acquires through his own labor; (3) Contract – private property is a contract between individuals and the community; (4) Social Utility – law should promote the maximum fulfillment of human needs and aspirations and legal protection of private property does that; and (5) Natural Rights – natural law dictates the recognition of private property.

The law of private property guarantees your War Chest and all that’s in it.  Next week, we’ll probe further into what property really means to you and your family.


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