Property

Types of property

By nature. Corporeal or tangible property, land, buildings, goods; and incorporeal or intangible property, debts, shares, patents, copyright and trademarks. The growth of the second is one of the largest economic changes of the last century.

By use. Consumption property, personal effects and dwellings; and productive property, the means of production, land, factories, machinery. The distinction is central to socialist analysis, since it is productive property, not personal effects, that socialism proposes to socialise.

By holder. Private property, held by an individual or a legal person; common property, held by a defined community with regulated access, such as village grazing land, forests and tanks; public or state property; and open access resources belonging to nobody.

The distinction between common and open access is worth making because it is regularly confused. Elinor Ostrom's work showed that commons managed by their user communities under rules that the community makes and enforces can be sustained over long periods, and that the assumption that shared resources are inevitably destroyed conflates a managed commons with an unmanaged free-for-all.

Property and social structure

It determines stratification

Who owns productive property is, in Marx's analysis, the fundamental social division, as [Marx: Theory of Social Class and Social Conflict] sets out. Even on a non-Marxist account, ownership of land in an agrarian society decides income, security, credit, marriage prospects, political influence and standing.

It shapes the family

Property is the reason the joint family held together where it did, and partition is what divided it. Rules of inheritance decide who counts as family for the purpose that matters most, and Engels's argument in [Theories of the Origin of the Family] is that the monogamous family itself arose to secure legitimate heirs.

It structures caste and gender

Access to land was historically restricted by caste, and the exclusion of women from effective inheritance was general. Both have changed by legislation, and the change is a good test of the argument in [Law and Social Change]: the Hindu Succession Act 1956 and its amendment in 2005, which made daughters coparceners by birth in a joint family, altered rights on paper immediately, while the practice of daughters relinquishing claims in favour of brothers has changed far more slowly.

It is the basis of political power

The connection between landholding and political influence in rural India is direct, and it is why land reform was understood at independence as a political programme and not only an economic one.

Property in Indian social history

Four changes are worth naming, because they show property being remade by law.

Colonial settlements. The revenue settlements introduced under colonial rule reorganised rights in land and created intermediaries with rights that had not previously existed in that form.

Abolition of intermediaries and land ceilings. After independence, legislation abolished intermediary tenures and imposed ceilings on holdings, with results that varied greatly between states.

The constitutional change. The right to property was originally a fundamental right; it was removed from that Part by the Constitution (Forty-fourth Amendment) Act 1978 and now stands as a constitutional right, and no person may be deprived of property save by authority of law. The change is a striking instance of a society deliberately lowering the constitutional protection of property in order to make redistribution possible.

Recognition of forest rights. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 recognised individual and community rights that had been exercised for generations without legal recognition, which is a clear case of law catching up with an existing social fact.

A worked example

A field in a village is recorded in the name of a man who died in 2010.

His sons occupy it and treat it as theirs. His daughter has a legal share under the law as amended in 2005 and has not asserted it, because doing so would breach the norm that a daughter takes nothing after her marriage. A tenant has cultivated it for twenty years and has rights under tenancy legislation. The village grazes cattle on it after harvest, an arrangement nobody wrote down and everybody observes. The state taxes it and can acquire it on terms.

Ask who owns the field and the question dissolves. Five parties hold different sticks in the bundle, two of them by social rule rather than by law, and the legal position and the social position do not coincide.

The daughter's position is the sociologically interesting one. She has a right the law gives her and a norm that prevents her using it, and which prevails depends on things a statute cannot reach: whether she is dependent on her brothers, whether she must return to the village, and what asserting the claim would cost her socially. This is [Law and Social Change] in one field, and it is the best illustration in Module I of the gap between a legal right and a social reality.

What property is NOT

Not a thing. It is a relationship about a thing.

Not natural. It is created and defined by society, and what may be owned differs completely between societies and over time.

Not absolute. Every legal system limits it: by taxation, by compulsory acquisition, by planning, by tenancy protection and by the rights of others.

Not identical with possession. A tenant possesses without owning; an owner may own without possessing.

Not confined to tangible things. Intangible property is now a large part of what is owned in an advanced economy.

Quick revision

1. Property is a relation between people about a thing, not between a person and a thing; it requires exclusion and therefore requires society.
2. It is a bundle of rights: possession, use, fruits, exclusion, disposal, destruction. The sticks can be held by different people over one object.
3. Types: corporeal and incorporeal; consumption and productive; private, common, state and open access.
4. Common is not open access: Ostrom showed that community-managed commons with rules can be sustained.
5. Property determines stratification, shapes the family and inheritance, structures caste and gender, and underlies political power.
6. Indian changes: colonial revenue settlements; abolition of intermediaries and ceilings; the Forty-fourth Amendment 1978 removing property from the fundamental rights; the Hindu Succession Act 1956 as amended in 2005; and the Forest Rights Act 2006.
7. A legal right in property may be defeated by a social norm: the daughter who does not claim her share.

Test yourself

1. Why is property described as a relation between persons rather than between a person and a thing? Because ownership consists in the exclusion of others, and exclusion is meaningless without other people and a rule they observe. A person alone can possess an object but cannot own it. Property therefore exists only because a society recognises and enforces the claim, which is why what may be owned, by whom and on what terms differs completely between societies and changes over time.

2. Explain property as a bundle of rights and give a consequence. Ownership comprises separable rights: possession, use, enjoyment of the fruits, exclusion of others, disposal and destruction. Because they are separable, different people may hold different rights over one object: a tenant has possession and use, the landlord the income and power of disposal, the state powers of taxation and acquisition, a neighbour an easement. It follows that asking who owns a thing is often the wrong question, and that legislation can redistribute rights without transferring the object.

3. Distinguish common property from open access. Common property is held by a defined community whose members have regulated access under rules the community makes and enforces, such as village grazing land, tanks and forests. Open access resources belong to nobody and are open to all comers without rules. Ostrom's work showed that managed commons can be sustained over long periods, so the claim that shared resources are inevitably destroyed applies to open access rather than to a genuine commons.

4. How does property structure social inequality in India? Ownership of productive property, above all land, determines income, security, access to credit, marriage prospects, political influence and social standing. Access to land was historically restricted by caste, and women were in practice excluded from inheritance. Both restrictions have been altered by law, notably the Hindu Succession Act 1956 as amended in 2005, but the practice of daughters relinquishing their shares shows that the social distribution changes far more slowly than the legal one.

5. What does the Forty-fourth Amendment tell a sociologist? That the society deliberately reduced the constitutional protection of property in order to make redistribution legally possible. The right to property, originally a fundamental right, was removed from that Part in 1978 and now stands as a constitutional right subject to authority of law. It is a clear instance of the rules constituting property being altered to change the distribution of social power, and it shows that property is a political arrangement rather than a natural fact.