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This chapter explores the emergence in recent decades of so-called ‘new essentialist’ theories of property which seek to re-establish the idea of property as thing-ownership. This particular chapter focuses on the work of the new essentialists operating from within the analytical jurisprudential tradition. It notes the highly abstract nature of much of this work: it seeks to abstract both from specific sets of property institutions and from different kinds of resources (personal possessions/productive resources; tangible/intangible property). It notes that this work tends to universalise some of the specific features of the property institutions of modern capitalist societies and, as a result, tends to naturalise private property in all resources and to legitimate the property status quo. This work also tends to be underlain by an implicit account of how our property system operates that is ideological and inaccurate.
This chapter looks at the ‘new essentialist’ theories of property that have emerged from within law-and-economics. It begins by looking at the perceived threat to private property rights in productive resources posed by the increasingly social nature of productive activity and the rise of the modern public corporation. In this context, it looks at the attempts by early exponents of law-and-economics to reconceptualise the public corporation as a (private) nexus of contracts; at the reconcentration of shareholdings in financial institutions; at the reassertion from the 1980s of shareholder primacy (in the new guise of ‘shareholder value maximisation’); and at the highly financialised nature of contemporary corporate governance. It moves on to critique the information-cost theory of property developed by Merrill and Smith, arguing that it too ignores the empirical realities of property and provides a deeply misleading and ideological account of how our property system actually works.
This chapter looks at a second feature of ‘capital’, one identified by the US Supreme Court in the case of SEC v Howey (1946) when it held that an ‘investment’ is, for the purposes of federal securities law, ‘an investment of money … with profits to come solely from the efforts of others’. It looks at the different ways it is possible for the owners of capital (‘investors’) to benefit from the efforts of others, focusing on the ownership of key productive resources (tangible and intangible) and of revenue rights linked to such ownership (like corporate shares), and on the ownership of revenue rights derived from debt (private and public). It moves on to look at the empirical data on the distribution of wealth, looking at its gender and racial as well as class dimensions, and at the growing concentration of wealth in the hands of a small, uber-wealthy minority, with particular focus on the distribution of financial property.
Why does the value of the wealth possessed by those at the top of the ‘rich lists’ vary so much from year to year? What do these fluctuations tell us about the nature of property in contemporary capitalism? Does contemporary property theory enable us fully to get to grips with the empirical realities of modern property? How is our property system implicated in the ‘polycrisis’ that we are currently experiencing?
This chapter looks at the difference between property considered to be wealth and property that is not, examining what has been called the ‘dual nature’ of property and the distinction drawn by some theorists between private property in personal possessions and private property in productive resources. As historians and anthropologists have shown, this is a distinction that has often been drawn in empirical reality. This prefaces a discussion of the nature of capital and of the historical emergence and content of the concepts of ‘capital’, ‘capitalist’ and ‘capitalism’. Capital, it is argued, is property which is ‘invested’ in search of a pecuniary return, hence the idea of ‘property-as-capital’.
This chapter opens by examining the importance of history and detailed empirical (‘thick’) research to conceptual and theoretical development. It goes on to argue that all the theories of property currently vying for supremacy can make a contribution to our understanding of property in contemporary capitalism, but that a social relational conception is indispensable to understanding property-as-capital. Disagreeing with those who argue there is no such thing as capitalism, it explores the nature of capitalism, arguing that it is distinguished by a particular, historically specific ‘logic of process’ – a logic which finds expression in all areas of social life; it has moral as well as economic dimensions. In recent decades, the operation of this logic has been extended and intensified and is, it is argued, one of the main sources of the polycrisis. The chapter concludes by looking briefly at the implications of the analysis offered by the book for change, seeking to identify, in a suggestive rather than systematic manner, a trajectory for reform.
This chapter explores the historical and material conditions of existence of the modern conception of property as private property and thing-ownership, linking them to the rise of capitalist social relations. It moves on to look at what an empirically grounded analysis of any specific set of empirically existing property/property institutions would involve, and at the role of law in constituting and safeguarding modern property and property rights. In this context, it focuses in particular on the intangible financial property forms that are now central to wealth and power, and whose value is based on expectations about future revenues. Against this backdrop, it explores the policy prioritisation of investor protection, the rise of the ‘new constitutionalism’ and ‘derisking’, the impact of these phenomena on democracy, and the gulf between neoliberal rhetoric and neoliberal practice.
This chapter looks at the historical development of ideas about property and property theory in modern capitalist societies. It begins by exploring the emergence and rise of the Blackstonian conception of property as ‘sole and despotic dominion’, before moving on to look at the rise in the late nineteenth and early twentieth centuries of the alternative idea of property as a bundle of rights and/or social relation and at the even more radical claim that property is a ‘conceptual mirage’ that has ‘disintegrated’. It then examines the recent re-emergence of neo-Blackstonian, ‘new essentialist’ conceptions of property as thing-ownership. Drawing on the work of historians and anthropologists, it notes the conceptual limitations and historical and cultural specificity of the very concepts of ‘property’ and ‘ownership’ as we understand them.
Amid the shift towards neoliberalism and the privatization of resources, this book provides a radical new lens to view property and property theory.
Boldly challenging the conventional theories of property law that have shaped our understanding for centuries, leading expert Paddy Ireland explores the rise and growth of new intangible property forms; the nature of ‘investment’ and of property-as-capital; and the empirical realities of modern property.
Raising broader questions about ownership in society, the author ignites a powerful conversation about the increasingly unequal distribution of wealth, forcing us to confront that our current property system bears considerable responsibility for the current ‘polycrisis.
This groundbreaking work will set the agenda for a new era in property theory.
