This two part series looks at the state of property rights under the current legislative scheme in New Zealand. Particularly I address attempts to suggest that the passage of Acts such as the Crown Minerals Act and the Resource Management Act have not significantly altered the common law concept of property rights and the claim that William Blackstone himself conceded that property rights were subject to the legislature. I argue against these theses. In Part I, I will look at the concept of a property right drawing from Blackstone, John Locke and Ed Feser paying particular attention to the context Blackstone wrote in.
What is a Property Right?
Property rights are often described as “a bundle of rights.” This bundle includes the full or limited right to access, use, assign, exclude others from and destroy property. William Blackstone, judge, jurist and professor of law who authored one of the most influential texts, Commentaries on the Laws of England, on the classical views of the common law and its principles, grounded the legal right to property in a moral right that exists antecedent to the state. His infamous statement at the beginning of his chapter “Of Property, in General” certainly seems to bear this out,
There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.
This theme of property rights being paramount is found in other parts of his writings. In “Of The Absolute Rights Of Individuals” Blackstone identified property rights as “The third absolute right, inherent in every Englishman, … which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” [Emphasis added]
The latter part of this quote has been used by some to suggest that what Blackstone really meant to say was that one can use one’s land as one see’s fit provided one does not breach any laws of the land. I certainly have heard this in class from my Professors and it is prevalent enough to be left standing on Wikipedia,
…the phrase is often presented without taking into account the greater context of Blackstone’s thought on the subject of property. Blackstone likely offered the statement as a rhetorical flourish to begin his discussion, given that even in his age, individual property rights were not sole and absolute. Property owners must rely on the enforcement powers of the state, in any event, for the realization of their rights.
Now I agree that the greater context must always be taken into account when chopping a few sentences out of a greater text, so let us do precisely this. Blackstone suggests that property rights are limited “only by the laws of the land”; to ascertain what he meant by this we must read the very next paragraph,
So great moreover is the regard of the law for private property, that it will not authorise the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.
So qualified, we can see that although Blackstone describes property rights as absolute rights of people, it is clear from the context that by ‘absolute’ he means a right a person has in the state of nature, that is, a right that exists antecedent to any state recognition. He does not mean ‘absolute’ in the sense of never being able to be overridden but likewise he does not have in mind the notion that the passage of any law, no matter its impact on the landowner, is compatible with property rights; what he is getting at is more limited than that.
Blackstone suggests that property rights can be encroached for the public good provided that, public good is understood as “the protection of every individual’s private rights”, “the legislature alone” authorises it by law and the owner is compensated. Elsewhere in the same text he suggests that necessity might be a further option. A person in need “may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor.”
Ed Feser elaborates on the idea of necessity or “absolute distress”,
the starving man in the woods who takes food from a cabin, or a window washer who grabs a flagpole to break his fall from a building, or someone fleeing robbers who can only escape by running through someone else’s back yard. … if some resource (say, the only remaining source of water in an area stricken by drought) became “absolutely necessary … to save the community or part of it from extinction,” then any individual who had heretofore privately owned that resource would have an obligation in justice to relinquish it.”
The author of the Wikipedia quote was not wrong when he or she said that “even in [Blackstone’s] age, individual property rights were not sole and absolute.” It is true that the landowner’s rights were traditionally, at common law, subject to the rights of others. For example, lessees, easement holders, mortgagees held rights in another’s land. Tortious liabilities such as actionable nuisance, the doctrines of support and waste, etc are examples of the ability of others to dictate what a landowner does with his or her land. These restrictions were tied up with fact that every person has the right to enjoy his or her property, hence, the exercise of enjoying one’s property (or exercising one’s property rights) was limited by the degree it prevented another from enjoying theirs.
Blackstone did not consider property rights to simply be legal rights. As I have stated a few times thus far, he grounded the legal right to property in a moral right that exists antecedent to the state,
There is indeed some difference among the writers on natural law concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title;—a dispute that savours too much of nice and scholastic refinement. However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seizing to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. 
He appealed to John Locke’s polemic against absolute monarchy, which sets out the locus classicus for the justification of property rights. Locke argued that human beings have a series of rights antecedent to the existence of civil government, that is, they exist whether or not the state acknowledges them. A just state will protect and recognise these rights. One such right is the right to property. Locke argued that people own their own bodies and as such their own labour. When one mixes one’s labour with previously unowned land one acquires a right to this land subject to the proviso that one leaves “enough and as good … for others.”
Feser has argued that Locke’s proviso is mistaken and that an initial acquisition of the sort Locke refers to cannot be unjust. If one mixes one’s labour with and gains ownership of, a parcel of previously unowned land then one acquires a property right to it. This acquisition, in turn, gives one the right to assign it to others. Given this, Locke’s proviso is unnecessary. Assignees of such land acquire the property rights along with the land. Unless another can establish that the initial acquisition was unjust or there has been an unjust transfer at some point in the chain of ownership, the landowner’s property rights must be respected.
Whilst the right may not be absolute, a prima facie property right exists. If one takes possession of previously unoccupied land and mixes one’s labour with it or one obtains ownership of such land via a just transaction then, prima facie, one has rights over this land. The burden then falls on the taker to justify taking,
That we do in fact, in everyday life, put the burden of proof on the denier of claims to property is evidenced by the presumption that exists in law that the possessor of a holding is the rightful owner of it. This reflects our intuitive sense of justice in holdings. It is only (egalitarian) philosophers who—bizarrely—put the burden on the possessor to prove that we shouldn’t expropriate his holdings. Such philosophers are reminiscent of the epistemological skeptic who challenges you to prove you’re not dreaming, or are not a brain in a vat, or whatever—as if it were such strange logical possibilities, rather than the commonsense belief in the external world, that had the presumption in their favor!
In Property Rights: Blackstone, Locke and the Legislative Scheme Part II, I turn to the extent of the landowners rights, the relationship of property rights to legislative controls, looking at the CMA, RMA and recent judgments. I critique the notion that property rights remain untouched by these controls by highlighting the shift from posterior to prior restraint, I conclude by placing the argument through the lens of Blackstone’s qualifications on the absolute right to property.
 William Blackstone “Of Property, in General” in George Sharswood (ed) Sir William Blackstone, Commentaries on the Laws of England in Four Books (J.B. Lippincott Co, Philadelphia, 1893) Vol 1, Bk 2, Ch 1.
 Blackstone “Of The Absolute Rights Of Individuals”, above n 1, Vol 1, Bk 1, Ch 1, s 139.
 “Blackstone and Property Jurisprudence” in William Blackstone accessed at 17 February 2010.
 Blackstone, above n 1.
 Edward Feser “Classical Natural Law Theory, Property Rights, and Taxation” (2010) 27 Social Philosophy and Policy 21-52, 38.
 William Blackstone “Chapter 1: Of Property, In General” in Sharswood, above n 6, Vol 1, Bk 2, Ch 1, s 9.
 John Locke Two Treatises of Government (1690) Peter Laslett (ed) (Cambridge University Press, Cambridge, 1967), Second Treatise, Ch 5.
 Ibid s 27.
 Edward Feser “There is no such thing as an Unjust Initial Acquisition” (2005) Social Philosophy and Policy 58-59.
 Ibid 11.