3.1 The Myriad Dimensions of Proprietary Interests

In order to even begin to chart just distributions, it is essential to map the myriad dimensions of proprietary interests.

There are, first, a finite set of entities that can be rights bearers, in other words who can exercise proprietary interests over things or who can be given the right to use or enjoy property. Depending on those rights bearers, we tend to describe the corresponding property relation in the following terms:

• The state as owner, which generally corresponds to state ownership, controlled economies, or the nationalization of industries;

• An individual, partnership, or legally chartered corporation, which usually corresponds to regimes of individual, personal, group, or private property;

• A collective (e.g. farmer coöperative; factory workers), which typically corresponds to collective property, collectivism, or coöperatives;

• The people owning in common, or what we often refer to today as “the common,” or in earlier times as “the commons.”

Notice that these different subjects can be on either side of the property equation, so that the state could have title to land and allow a private individual to use it; or the other way around, an individual could have title to land and allow the state to use it.

Second, there are different things that can be the object of property. Most legal regimes throughout history have differentiated between:

• Land and buildings (real estate)

• Movable or chattel property (goods, commodities, supplies)

• Personal possessions (clothes, bedding, food)

• Intangible property (intellectual property)

• Modes of production (equipment, tools)

• Financial property (stocks, bonds, bank accounts)

Notice here that there can be different proprietary regimes for and within each type of property. So, for instance, land could be owned by the state or a tribal nation, while the buildings on the land could be used or leased to private individuals; personal possessions could be assigned entirely to individuals, while modes of production could be the property of the collective.

Third, there are an assortment (bundle) of proprietary rights assigned to each of these subjects and kinds of property. So, for instance, with regard to land, there could be an assignment to different subjects of each of these interests:

• The decision who uses the land (use)

• The decision how the land is used (zoning)

• The decision how the revenue from the use of the land is distributed (enjoying the fruits)

• The decision who can improve or alter the land (improvements)

• The decision who can reap the rewards of these improvements

• The decision who has power to transfer or alienate these interests

• The decision who can assign these interests

• The decision who can adjudicate any disputes regarding these assignments

In their book Common, Dardot and Laval propose and discuss a similar list of these possible proprietary interests.²³⁴ The American Realists, much before them, showed us how these bundles of rights can be separated.

Fourth, and finally, it is important to emphasize that whoever gets to decide about how to interpret and resolve disputes about the different options listed above is determinative. The final arbiter is, de facto, the one with the real proprietary interest. If we decide, for instance, that it is a state supreme court that has the final say over property rights in the state, then that court is ultimately the arbiter of property relations. If it is a people’s council or open to popular democratic accountability, then the people ultimately have control over proprietary interests. The final decision-maker may ultimately have more power over the property framework than the entity who purportedly has the authority to allocate. This is why judicial review in the United States is, in the end, such a powerful tool for judges.