Emerging Trends in The Social and Behavioral Sciences

The Public Nature of Private Property

Item

Title

The Public Nature of Private Property

Author

Becher, Debbie

Research Area

Social Processes

Topic

Property Rights

Abstract

American legal academics describe private property as a set of private rights. However, liberal ideas of private control poorly describe legal practices, and thus the bundle of rights is a misleading metaphor for private property. Indeed, social theorists have long understood that property is not the ownership of a thing or a set of individual rights, but a set of social agreements about what ownership entails. In the late twentieth and early twenty‐first century, constituents have expected governments to protect the value in their properties, not just their control over the resources. Property rules involve government intimately not only in creating value but also in determining who deserves which valuable resources.

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Identifier

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extracted text

The Public Nature of Private Property
DEBBIE BECHER

Abstract
American legal academics describe private property as a set of private rights. However, liberal ideas of private control poorly describe legal practices, and thus the
bundle of rights is a misleading metaphor for private property. Indeed, social theorists have long understood that property is not the ownership of a thing or a set
of individual rights, but a set of social agreements about what ownership entails. In
the late twentieth and early twenty-first century, constituents have expected governments to protect the value in their properties, not just their control over the resources.
Property rules involve government intimately not only in creating value but also in
determining who deserves which valuable resources.

THE EMERGENCE AND EXPANSION OF PRIVATE PROPERTY
AS A LIBERAL IDEAL
When American legal academics describe private property, they present a
liberal notion of property as a set of private rights. One of the first things
professors of law teach students in property classes is that legally, property is
not an object one owns. Rather, it is a bundle of rights that can be split among
many individuals or entities. These include rights to use, exclude others from
using, and transfer property. When government protects private property in
this way, it protects individual control over property; those with property
rights can do what they wish, as long as they do not interfere with others’ similar interests. By this definition, government seems no more than an arbiter of
agreements and conflicts among private parties, and thus the conception of
property as a set of rights comports well with a liberal or libertarian notion
of a restrained government. [See Radin (1993) for discussion of how theories
of government ally with positions on property.]
Although concerns for the public good undergird political theorists and
economists’ celebratory writing about private property, many of these scholars also describe the essential tenet of private property to be protection of
private entities’ control over resources. Classical and contemporary theorists
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

have argued that private initiative leads to public welfare. John Locke contended that the protection of private control over land benefitted the public,
for with security that one could reap the fruits of one’s harvest, men would
labor to plow, seed, and nurture their crops, and communities would benefit
from agricultural production. For Jeremey Bentham and other utilitarians,
the distribution of power to private parties to use and transfer their control over resources allows for efficient coordination, and thus much greater
overall welfare than any centralized mechanism of control could. Contemporary libertarians and law-and-economics scholars revere private rights as
the best solution to problems of coordination, such as of potential overuse of
land for cattle grazing or urban development (Ellickson, 1991; Epstein, 1985).
Economists such as Hernando de Soto (2000) endorse private property as
the key to economic development in countries that have lagged behind more
advanced capitalist democracies.
Like private property’s defenders, critics who attack it as damaging to the
public good describe the institution itself as protection for private control
over resources. Karl Marx and Ben Fowkes (1977 [1887]) and Max Weber,
Guenther Roth, and Claus Wittich (1978) harshly criticized the English
government’s violent expropriation of common lands, once accessible to
serfs, to transfer control to a few aristocratic recipients of private titles. They
lambasted the resulting inequalities in wealth accumulation as inimical
to the public good. Marx, of course, went further to argue that private
property in an industrial era led to the exploitation of laborers and that only
the abolition of private property and the treatment of property as public
would end such oppression. Alexis de Tocqueville and Henry Reeve (1835)
condemned the US government in the nineteenth century for unabashedly
rewarding private land speculation during westward expansion. Thorstein
Veblen (1945 [1923]) similarly faulted private property for allowing a class
of investors in early twentieth century American cities to extract rent from
poor tenants. Karl Polanyi (1944) also presented private property as the
antithesis of the public good. He interpreted the history of capitalism as
a “double movement” between private accumulation supported by the
institution of private property and public goods created by government’s
social regulatory policies. Polanyi extended Marx’s critique of private
property as the “commodification” of goods such as land and labor, goods
that have important social values other than their market price. Private
property, he argued, devalued and corrupted the social values in those
goods. David Harvey (1982) and John Logan and Harvey Molotch (1987)
brought this critique of commodification into the present with their attacks
on post-1970s governments’ unsavory alliances with private developers
and disrespect for the poor, who cannot possibly hope to own property
in areas that benefit from rising real estate prices. Thus, despite starkly

The Public Nature of Private Property

3

different normative positions on how and whether private property serves
public goods, defenders and critics share an understanding of what private
property actually is: protection of private control over scarce resources.
As privatization has proliferated across the globe, this liberal institution
seems to have become hegemonic. From its inception, the notion of private
property as a set of individual rights seemed foundational to liberal, capitalist democracies. As western European nations transitioned from feudalism to capitalism, they transferred the control of land from the crown to
private parties. In the late twentieth and twenty-first centuries, as eastern
European countries abandoned socialism, they have adopted private property rules to govern land, utilities, and oil. At the same time, Latin American countries have converted communal and national ownership of these
resources to private ownership. Private property is expanding even in the
most advanced capitalist countries, such as the United States, where publicly owned highways, prisons, and schools are being transferred to private
ownership and previously un-owned knowledge is becoming intellectual
property. These changes suggest a centuries-long shift from public, common,
or government-owned property to private property, and thus a transfer of
control from governments to private entities.
However, liberal ideas of private control poorly describe legal practices,
and thus the bundle of rights is a misleading metaphor for private property.
To be sure, in the American tradition called civic republicanism, political
and legal theorists have long proclaimed that private property creates and
enforces community responsibilities and entitlements (Lynd 1987). Most
recently, law professors calling themselves scholars of “progressive property” draw attention to their analyses of how American legal doctrine requires
greater demands on government than the ideas of an owner’s control or
private rights suggest (Alexander, Peñalver, Singer, & Underkuffler, 2009;
Singer, 2000; Underkuffler, 1996). Indeed, the aforementioned observations,
defenses, and critiques of private property shed inordinate focus on ownership, leading to inaccurate assumptions that when it protects private property
(as opposed to managing public property), government is responsible for no
more than protecting the private owner’s control. When sociologists and others observe property as practiced, it becomes clear that the word “private”
in private property hides governments’ intimate and varied involvement in
creating and maintaining the institution. The idea of rights has perpetuated
misunderstandings about the real-life institution of private property.
IN PRACTICE, PRIVATE PROPERTY IS “PRIVATE” IN NAME ONLY
Private property can often appear to exist without much state support,
deceiving observers into believing that government action is extremely

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

limited. In reality, however, states are intimately involved in and essential to
making and maintaining private property. Karl Marx and Max Weber drew
attention to how essential government coercion was to the transformation of
communal to private property, and historians of the early United States have
documented the enormous colonial and then federal military and administrative resources dedicated to settlement and propertization. Recently,
governments transitioning from socialism to capitalism or formalizing private property rights in effect create private property (de Soto, 2000; Verdery,
2003). Even today’s governments in advanced capitalist countries dedicate
significant executive and judicial resources to the tracking of property
interests, dispute settlement, and regulatory enforcement, and legislative
resources to the creation of those regulations. In addition, even the most
libertarian advocates for limited government confess that to make private
property viable, governments need to do more than protect private control.
For example, libertarian-leaning legal scholar Robert Ellickson (1993) admits
that cities with private real estate require government-built infrastructure for
utilities, sidewalks, and street lights. Infrastructure is necessary for private
owners’ enjoyment of their properties but impractical for those owners to
provide on their own.
Moreover, private property constantly changes, and the state articulates
and enforces those changes. For instance, in different times and places,
states allow different objects to be owned. Less than two centuries ago, it
was widely accepted in much of the United States that people could be
owned as property, as slaves, or as wives. Now, such a notion is practically
unimaginable, but conflicts rage over whether human organs, humans
(through surrogacy and adoption), pharmaceuticals, music, and software
can be owned, and if so, what ownership entails (Peñalver and Katyal, 2010;
Radin, 1996). Beyond what resources can be property, states also change
what entities or individuals they allow to own property, what uses they
allow and prohibit, how they enforce property rules, and how transfers can
be made (Carruthers and Ariovich, 2004). Meanings of private property are
always multiple, contested (Blomley, 2003), and changing (Carruthers and
Ariovich, 2004).
In many contexts, in fact, the line between public and private property is
extremely blurry. For the eighteenth century New York City government,
managing the property it owned, just as a fully private owner might
have, was one of its primary activities (Hartog, 1983). Historian Samuel
Bass Warner (1987) characterized nineteenth century Philadelphia as “the
private city” because of government’s intimate involvement in supporting
private economic development, particularly real estate growth. In the late
twentieth century, as postsocialist regimes formally shifted land from public
to private property, in practice they preserved many of the tenets of public

The Public Nature of Private Property

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property, and thus produced something new, what sociologist David Stark
(1996) tagged “recombinant property.” (Also see Verdery, 2003). In similar
ways, private property in previously colonized places actually looks much
more public than the formal name of private indicates (J. Comaroff & J. L.
Comaroff, 2006; Merry, 2000). Thus, in many cases, private property retains
elements of public property during its emergence.
The hybridity of public and private in so-called private property is also
found well beyond the early instantiations of private property. In the late
twentieth and early twenty-first century United States, the global standard
bearer for private property, new forms of public–private cooperation in property elude this easy classification. In the 1980s and 1990s, municipal governments developed innovative “public–private partnerships” to foment the
development of shopping malls, convention centers, sports arenas, and gambling centers—on formally public and private land. In these and other partnerships, governments contribute land, infrastructure improvements, and
tax and regulatory relief to projects constructed and largely controlled by private entities. For services needed outside of such large-scale developments,
governments have also created new forms of public–private coordination
to sustain property. Federal and local governments are instituting contracts,
vouchers, and subsidies for privately owned and operated schooling, housing, and prisons. In addition, new public/private entities have emerged with
legal powers to control properties. Business improvement districts that can
tax small neighborhoods for their services, land trusts that purchase property interests for community initiatives such as preservation, and cooperative housing associations are becoming more common and legally complex
(Geisler, 2000; Leavitt & Saegert, 1990).
Indeed, social theorists have long understood that property is not the ownership of a thing or a set of individual rights, but a set of social agreements
about what ownership entails. Instead of liberal entitlements, rights are any
claims that a community endorses as justified (Coleman, 1990). The history of
private property in particular involves complicated, ever-changing notions
about what exactly government is responsible for.
GOVERNMENTS ACTIVELY AFFECTING PROPERTY’S VALUE
CREATING VALUE
Recently, citizens demand that governments make and maintain properties’
value. Take the case of the most traditional form of property—real property
(property in land and buildings). Throughout the twentieth century United
States, it has become clearer that property is meaningful to its owners for
financial value, as much as for control or use of a thing. Thorstein Veblen

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

(1945 [1923]) noticed in the early twentieth century United States that
property in cities was becoming a source of rent, rather than of shelter
for owners. After the mid-twentieth century, as homeownership greatly
expanded and housing prices rose steadily, owning (and potentially selling a
home) became the single greatest source of wealth for the average American
family.
In the late twentieth and early twenty-first centuries, constituents have
expected governments to protect the value in their properties, not just
their control over the resources. Rather than simply protect their control
over land, owners expect governments to protect the value of their real
estate (Becher, 2014). Governments create and insure the value of their
properties, and have unabashedly enacted growth policies to meet those
demands. This shift in government policy over private property coincided
with broader changes in governments’ economic policies. In the aftermath
of World War II, the emergence of Keynesian economics, and the wake of
industrial decline, governments have taken responsibility for economic
growth (Habermas, 1975 [1973]), including policies that increase the value
of real estate (Bourdieu, 2005).
In the United States, some of local governments’ most important powers
are over real property (property in land and buildings) (Frug & Barron, 2008;
Valverde, 2012), and those powers have expanded to allow them to protect
properties’ value. In the early twentieth century, the US Supreme Court gave
local governments wide leeway to use their police (regulatory) and eminent
domain powers over real property. In Village of Euclid, Ohio v. Ambler Realty
Co., 272 U.S. 365 (1926), the court sanctioned local governments’ zoning controls. By the 1950s and 1960s, zoning was practically taken for granted across
the country, and its most important intended and realized consequence has
been the stabilization and growth of residential real estate prices. To the
extent that zoning and environmental regulations have drawn protests, the
opposition has been inspired by worries that instead of raising property
values, government was hurting them. For instance, a large debate over
“regulatory takings” concerns arguments about whether by taking property
value away, government in effect “takes” property. Thus, these protestors too
sanctioned the meaning of property as value, value government is responsible for protecting. In addition, when governments were unabashedly taking
property titles, the justification has been a protection of value. In Berman v.
Parker, 348 U.S. 26 (1954), the court allowed a city agency to take properties
in a wide area to eliminate “blight,” although individual properties in good
condition were sacrificed in the process. Local governments took advantage
of federal funding for slum clearance and urban renewal from 1949 to
1974 to acquire and demolish tens of thousands of properties in the hopes
of rebuilding and protecting neighboring properties from deteriorating.

The Public Nature of Private Property

7

Faced with fierce protests against the displacement of largely poor and
African-American residents and failures to rebuild clear areas and replace
low-cost housing units there or elsewhere, governments largely shelved
their eminent domain powers until the turn of the millennium. Governments seemed to have renewed their use of eminent domain for urban
redevelopment when the issue hit the news after the court handed down a
ruling in Kelo v. City of New London, 545 U.S. 469 (2005), which permitted a
local agency to take of over a hundred properties in the service of “economic
development.”
Local politicians have become fiercely determined to enact policies that
increase real estate prices. They join real estate developers in “growth
machines” that perpetuate such policies (Molotch, 1976). Constituents
sanction this policy direction, for they generally evaluate politicians by their
promises to provide growth and their success in doing so. Even those who
contest such policies as serving the rich and middle class expect government
to protect property’s value: they demand the protection of a different
kind of value—use value. The poor who cannot access financial capital to
grow expect governments to secure the value of shelter, community, and
sentiment in the land, buildings, and neighborhoods in which they have
property interests (Logan and Molotch, 1987). For example, in the wake of
Kelo, debates arose about US local governments’ use of eminent domain to
transfer properties from one private owner to another. Conflicts often pitted
those who demanded government to protect the use-values of property
for the poor against others who saw the need for government to create
exchange values, that is, to secure property prices. In other cases, where
conflict did not erupt, constituents supported eminent domain for new
private ownership, when doing so protected property value; by taking a
property of little value to its current owner and transferring it, government
could create a positive impact on neighbors’ use and exchange value (Becher,
2014).
In some of the instances of hybrids between public and private property
discussed previously, government’s contribution is value. Katherine Verdery
(2003) found that when formerly socialist Transylvania newly instituted private property in land in the 1990s, constituents forced the government to
make property economically valuable, not simply to protect control over title.
In the public–private partnerships US governments created to support urban
development, they contribute tax relief, infrastructure, and other forms of
in-kind and financial value to make projects happen. In part, these commitments of value give governments a crucial role in planning and a lasting stake
in projects, even when they are technically built on private land (Fainstein,
1995; Sagalyn, 2001; Zukin, 2010).

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

DISTRIBUTING VALUE
Property rules involve government intimately not only in creating value but
also in determining who deserves which valuable resources. The clearest
debate about the just or unjust desserts of private property has been between
promoters of free-market ideals and critics of private property. Libertarians
from Adam Smith to Friedrich Hayek argued that by protecting private
control over resources, government allows the deserving to accumulate
wealth to do so. Critics from Karl Marx to Karl Polanyi countered that
government simply uses private property as a veil to make its coerced
transfers of wealth from the deserving to the undeserving seem justified.
These critics draw attention to the original, and violent, establishment of
property rights, before government protects the more civil transfers of
property through market transactions.
In practice, governments make decisions about the distribution of property protections by establishing various and complicated legal doctrines and
executive policies about the origination of property rights. Rules about how
one establishes rightful claims over a property title provide one example.
Some of these government decisions are evident in the proffering of original
titles under existing governments. When the nineteenth century US government handed out its first titles, claims were made based on settlement and
homesteading, in other words by getting there first and staying and using a
property.
Present-day judicial doctrine provides significant guidance in how governments should adjudicate competing claims about the just distribution
of property. In the area of privately owned minerals, the legal “right of
capture” leads governments to recognize the claims of the first arriver as
justified, and still plays an important role in evaluating property claims.
Accordingly, owners of mineral rights to some extent establish claims that
will be backed up by courts by being the first among their neighbors to
extract the mineral (hard mineral deposit, oil, or gas) from underground.
Today’s “adverse possession” laws allow courts to transfer titles from
owners who have abandoned their properties to whomever arrived and
used them for some period of years. These laws demonstrate responsiveness
to claims to property based on the productive use of that property, rather
than simply the shuffling of some paper. These are just two of the many
legal doctrines proclaiming exactly how governments should make, and
then enforce, distributional decisions.
Other laws involve government in adjudicating who gets what in nonmarket transfers of property. Of course marriage and divorce laws largely determine rightful ownership and have changed drastically over time. Inheritance
laws guide government determinations of rightful ownership when those

The Public Nature of Private Property

9

with close ties to the deceased claim entitlements. What those laws say about
the distribution of property—what counts as a justified demand and who
can make it—vary significantly over time (Hartog, 2012) and cross-nationally
(Beckert, 2007).
Even the creation of infrastructure and other economic growth policies,
activities in which government often fails to make distributional decisions explicit, create very significant distributional consequences. Indeed,
governments’ various policies that create value, discussed in the section
previously, necessarily involve distributional choices, for governments
must decide where, when, and how many resources to dedicate for growth
and infrastructure. As mentioned earlier, critics point out that seemingly
universal growth policies actually lead governments to spend money on
infrastructure, services, and development in neighborhoods that will help
middle-class and wealthy owners and private developers, and take valuable resources away from renters and owners of properties in low-priced
neighborhoods.
There is an important similarity in all of government’s distributional
activities mentioned thus far. None of them focus on market transfer, the
ideal distributional action that private property makes possible and that
seems by definition to exclude government from involvement. It is often
assumed that market transfers are unbiased or fair in terms of distributional
consequences because the state is not making the distributional decisions
when they happen; instead, the state is protecting markets. In the aforementioned examples, government involvement in distribution is fairly exposed
because government is doing something other than protecting a market
transfer. Recent scholarship undermines that assumption, suggesting that
we need to look critically at governments’ distributional decisions not
only in nonmarket transfers but perhaps especially in market transfers.
Some of the most provocative research on property transfers today is being
completed by critics of government support for market transfers of property
as unjustified. This scholarship is most promising in its progress toward
reimagining possibilities for property rules. These critiques imagine regimes
of property with new (although largely based on traditional and indigenous
value systems) justifications for property claims (Tsing, 2005). In recent
years, charges of “global land grabs” have been made against multinational
companies for acquiring massive amounts of property in the global south
for natural resource extraction. In a critique of contemporary policy that
harkens back to Marx’s admonishment of the establishment of private property in land, today’s scholars and activists lambast national governments
and international agencies for their support of these transfers. They hope
that governments and international agencies will institute recognition of
property rights based on prior uses such as foraging or species preservation

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

over market purchases (Borras et al., 2011; Wolford, Borras, Hall, Scoones, &
White, 2013).
Researchers must uncover the complicated ways in which modern private
property serves public goods or interests. One of the simplest and enduring
questions is about how private property distributes resources. The question
“Who owns what?” can be one of the most challenging to answer, but
online records about land may change that. We also need to know how
publics (governments, social movements, and citizens) get owners what
they have. How do governments control property distribution through
rules and policies on contracts, privatization, inheritance, marriage and
divorce, regulation, and reparations or damage compensation? How do
changing laws restrict or expand private property rights—for instance,
by demarcating new forms of intellectual property or expanding governments’ civil forfeiture powers? How are social movements fomenting these
changes? Social scientists should track the strategies, successes, failures
and unintended consequences of movements targeting the state on the
right and the left. We should describe libertarian and neoliberal activism
in the name of liberal property rights as well as left-leaning anti-land
grab and squatters’ movements promoting alternative notions of resource
governance. Indeed, researchers should look even beyond government and
activists to citizens as publics: to research what property means in people’s
everyday lives, and how those understandings are contested. This research
into property-as-interpretation must attend to how people treat property
as value, including but not limited to market price. And some of the most
promising research will uncover bottom-up innovations in which everyday
understandings of property as public and private become realized legally in
new forms of tenure. We need to know about community land trusts and
cooperatives—entities that own increasing amounts of real property—and
about business improvement districts and land banks—entities that govern
increasing amounts of property. In these ways, researchers can expose how
emerging forms of interpretation and governance of property blend public
with private interests.
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Verdery, K. (2003). The vanishing hectare: property and value in postsocialist Transylvania.
Ithaca, NY: Cornell University Press.
Warner, S. B. (1987). The private city: Philadelphia in three periods of its growth (2nd ed.).
Philadelphia: University of Pennsylvania Press.
Weber, M., Roth, G., & Wittich, C. (1978). Economy and society: An outline of interpretive
sociology. Berkeley: University of California Press.
Wolford, W., Borras, S. M., Hall, R., Scoones, I., & White, B. (2013). Governing global
land deals: The role of the state in the rush for land. Development and Change, 44,
189–210.
Zukin, S. (2010). Naked city: The death and life of authentic urban places. New York, NY:
Oxford University Press.

DEBBIE BECHER SHORT BIOGRAPHY
Debbie Becher is an Assistant Professor of Sociology at Barnard College,
Columbia University. Her research links political culture to legal, urban, and
economic sociology through the study of property. She has published several
articles and a book, Private Property and Public Power on property takings and
is conducting research transfers of mineral rights for natural gas extraction.
She received her BA in Mathematics from the University of Virginia and her
MA and PhD in Sociology from Princeton University. Debbie teaches classes
on law, urban studies, and social theory.

The Public Nature of Private Property

13

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The Public Nature of Private Property
DEBBIE BECHER

Abstract
American legal academics describe private property as a set of private rights. However, liberal ideas of private control poorly describe legal practices, and thus the
bundle of rights is a misleading metaphor for private property. Indeed, social theorists have long understood that property is not the ownership of a thing or a set
of individual rights, but a set of social agreements about what ownership entails. In
the late twentieth and early twenty-first century, constituents have expected governments to protect the value in their properties, not just their control over the resources.
Property rules involve government intimately not only in creating value but also in
determining who deserves which valuable resources.

THE EMERGENCE AND EXPANSION OF PRIVATE PROPERTY
AS A LIBERAL IDEAL
When American legal academics describe private property, they present a
liberal notion of property as a set of private rights. One of the first things
professors of law teach students in property classes is that legally, property is
not an object one owns. Rather, it is a bundle of rights that can be split among
many individuals or entities. These include rights to use, exclude others from
using, and transfer property. When government protects private property in
this way, it protects individual control over property; those with property
rights can do what they wish, as long as they do not interfere with others’ similar interests. By this definition, government seems no more than an arbiter of
agreements and conflicts among private parties, and thus the conception of
property as a set of rights comports well with a liberal or libertarian notion
of a restrained government. [See Radin (1993) for discussion of how theories
of government ally with positions on property.]
Although concerns for the public good undergird political theorists and
economists’ celebratory writing about private property, many of these scholars also describe the essential tenet of private property to be protection of
private entities’ control over resources. Classical and contemporary theorists
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

have argued that private initiative leads to public welfare. John Locke contended that the protection of private control over land benefitted the public,
for with security that one could reap the fruits of one’s harvest, men would
labor to plow, seed, and nurture their crops, and communities would benefit
from agricultural production. For Jeremey Bentham and other utilitarians,
the distribution of power to private parties to use and transfer their control over resources allows for efficient coordination, and thus much greater
overall welfare than any centralized mechanism of control could. Contemporary libertarians and law-and-economics scholars revere private rights as
the best solution to problems of coordination, such as of potential overuse of
land for cattle grazing or urban development (Ellickson, 1991; Epstein, 1985).
Economists such as Hernando de Soto (2000) endorse private property as
the key to economic development in countries that have lagged behind more
advanced capitalist democracies.
Like private property’s defenders, critics who attack it as damaging to the
public good describe the institution itself as protection for private control
over resources. Karl Marx and Ben Fowkes (1977 [1887]) and Max Weber,
Guenther Roth, and Claus Wittich (1978) harshly criticized the English
government’s violent expropriation of common lands, once accessible to
serfs, to transfer control to a few aristocratic recipients of private titles. They
lambasted the resulting inequalities in wealth accumulation as inimical
to the public good. Marx, of course, went further to argue that private
property in an industrial era led to the exploitation of laborers and that only
the abolition of private property and the treatment of property as public
would end such oppression. Alexis de Tocqueville and Henry Reeve (1835)
condemned the US government in the nineteenth century for unabashedly
rewarding private land speculation during westward expansion. Thorstein
Veblen (1945 [1923]) similarly faulted private property for allowing a class
of investors in early twentieth century American cities to extract rent from
poor tenants. Karl Polanyi (1944) also presented private property as the
antithesis of the public good. He interpreted the history of capitalism as
a “double movement” between private accumulation supported by the
institution of private property and public goods created by government’s
social regulatory policies. Polanyi extended Marx’s critique of private
property as the “commodification” of goods such as land and labor, goods
that have important social values other than their market price. Private
property, he argued, devalued and corrupted the social values in those
goods. David Harvey (1982) and John Logan and Harvey Molotch (1987)
brought this critique of commodification into the present with their attacks
on post-1970s governments’ unsavory alliances with private developers
and disrespect for the poor, who cannot possibly hope to own property
in areas that benefit from rising real estate prices. Thus, despite starkly

The Public Nature of Private Property

3

different normative positions on how and whether private property serves
public goods, defenders and critics share an understanding of what private
property actually is: protection of private control over scarce resources.
As privatization has proliferated across the globe, this liberal institution
seems to have become hegemonic. From its inception, the notion of private
property as a set of individual rights seemed foundational to liberal, capitalist democracies. As western European nations transitioned from feudalism to capitalism, they transferred the control of land from the crown to
private parties. In the late twentieth and twenty-first centuries, as eastern
European countries abandoned socialism, they have adopted private property rules to govern land, utilities, and oil. At the same time, Latin American countries have converted communal and national ownership of these
resources to private ownership. Private property is expanding even in the
most advanced capitalist countries, such as the United States, where publicly owned highways, prisons, and schools are being transferred to private
ownership and previously un-owned knowledge is becoming intellectual
property. These changes suggest a centuries-long shift from public, common,
or government-owned property to private property, and thus a transfer of
control from governments to private entities.
However, liberal ideas of private control poorly describe legal practices,
and thus the bundle of rights is a misleading metaphor for private property.
To be sure, in the American tradition called civic republicanism, political
and legal theorists have long proclaimed that private property creates and
enforces community responsibilities and entitlements (Lynd 1987). Most
recently, law professors calling themselves scholars of “progressive property” draw attention to their analyses of how American legal doctrine requires
greater demands on government than the ideas of an owner’s control or
private rights suggest (Alexander, Peñalver, Singer, & Underkuffler, 2009;
Singer, 2000; Underkuffler, 1996). Indeed, the aforementioned observations,
defenses, and critiques of private property shed inordinate focus on ownership, leading to inaccurate assumptions that when it protects private property
(as opposed to managing public property), government is responsible for no
more than protecting the private owner’s control. When sociologists and others observe property as practiced, it becomes clear that the word “private”
in private property hides governments’ intimate and varied involvement in
creating and maintaining the institution. The idea of rights has perpetuated
misunderstandings about the real-life institution of private property.
IN PRACTICE, PRIVATE PROPERTY IS “PRIVATE” IN NAME ONLY
Private property can often appear to exist without much state support,
deceiving observers into believing that government action is extremely

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

limited. In reality, however, states are intimately involved in and essential to
making and maintaining private property. Karl Marx and Max Weber drew
attention to how essential government coercion was to the transformation of
communal to private property, and historians of the early United States have
documented the enormous colonial and then federal military and administrative resources dedicated to settlement and propertization. Recently,
governments transitioning from socialism to capitalism or formalizing private property rights in effect create private property (de Soto, 2000; Verdery,
2003). Even today’s governments in advanced capitalist countries dedicate
significant executive and judicial resources to the tracking of property
interests, dispute settlement, and regulatory enforcement, and legislative
resources to the creation of those regulations. In addition, even the most
libertarian advocates for limited government confess that to make private
property viable, governments need to do more than protect private control.
For example, libertarian-leaning legal scholar Robert Ellickson (1993) admits
that cities with private real estate require government-built infrastructure for
utilities, sidewalks, and street lights. Infrastructure is necessary for private
owners’ enjoyment of their properties but impractical for those owners to
provide on their own.
Moreover, private property constantly changes, and the state articulates
and enforces those changes. For instance, in different times and places,
states allow different objects to be owned. Less than two centuries ago, it
was widely accepted in much of the United States that people could be
owned as property, as slaves, or as wives. Now, such a notion is practically
unimaginable, but conflicts rage over whether human organs, humans
(through surrogacy and adoption), pharmaceuticals, music, and software
can be owned, and if so, what ownership entails (Peñalver and Katyal, 2010;
Radin, 1996). Beyond what resources can be property, states also change
what entities or individuals they allow to own property, what uses they
allow and prohibit, how they enforce property rules, and how transfers can
be made (Carruthers and Ariovich, 2004). Meanings of private property are
always multiple, contested (Blomley, 2003), and changing (Carruthers and
Ariovich, 2004).
In many contexts, in fact, the line between public and private property is
extremely blurry. For the eighteenth century New York City government,
managing the property it owned, just as a fully private owner might
have, was one of its primary activities (Hartog, 1983). Historian Samuel
Bass Warner (1987) characterized nineteenth century Philadelphia as “the
private city” because of government’s intimate involvement in supporting
private economic development, particularly real estate growth. In the late
twentieth century, as postsocialist regimes formally shifted land from public
to private property, in practice they preserved many of the tenets of public

The Public Nature of Private Property

5

property, and thus produced something new, what sociologist David Stark
(1996) tagged “recombinant property.” (Also see Verdery, 2003). In similar
ways, private property in previously colonized places actually looks much
more public than the formal name of private indicates (J. Comaroff & J. L.
Comaroff, 2006; Merry, 2000). Thus, in many cases, private property retains
elements of public property during its emergence.
The hybridity of public and private in so-called private property is also
found well beyond the early instantiations of private property. In the late
twentieth and early twenty-first century United States, the global standard
bearer for private property, new forms of public–private cooperation in property elude this easy classification. In the 1980s and 1990s, municipal governments developed innovative “public–private partnerships” to foment the
development of shopping malls, convention centers, sports arenas, and gambling centers—on formally public and private land. In these and other partnerships, governments contribute land, infrastructure improvements, and
tax and regulatory relief to projects constructed and largely controlled by private entities. For services needed outside of such large-scale developments,
governments have also created new forms of public–private coordination
to sustain property. Federal and local governments are instituting contracts,
vouchers, and subsidies for privately owned and operated schooling, housing, and prisons. In addition, new public/private entities have emerged with
legal powers to control properties. Business improvement districts that can
tax small neighborhoods for their services, land trusts that purchase property interests for community initiatives such as preservation, and cooperative housing associations are becoming more common and legally complex
(Geisler, 2000; Leavitt & Saegert, 1990).
Indeed, social theorists have long understood that property is not the ownership of a thing or a set of individual rights, but a set of social agreements
about what ownership entails. Instead of liberal entitlements, rights are any
claims that a community endorses as justified (Coleman, 1990). The history of
private property in particular involves complicated, ever-changing notions
about what exactly government is responsible for.
GOVERNMENTS ACTIVELY AFFECTING PROPERTY’S VALUE
CREATING VALUE
Recently, citizens demand that governments make and maintain properties’
value. Take the case of the most traditional form of property—real property
(property in land and buildings). Throughout the twentieth century United
States, it has become clearer that property is meaningful to its owners for
financial value, as much as for control or use of a thing. Thorstein Veblen

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

(1945 [1923]) noticed in the early twentieth century United States that
property in cities was becoming a source of rent, rather than of shelter
for owners. After the mid-twentieth century, as homeownership greatly
expanded and housing prices rose steadily, owning (and potentially selling a
home) became the single greatest source of wealth for the average American
family.
In the late twentieth and early twenty-first centuries, constituents have
expected governments to protect the value in their properties, not just
their control over the resources. Rather than simply protect their control
over land, owners expect governments to protect the value of their real
estate (Becher, 2014). Governments create and insure the value of their
properties, and have unabashedly enacted growth policies to meet those
demands. This shift in government policy over private property coincided
with broader changes in governments’ economic policies. In the aftermath
of World War II, the emergence of Keynesian economics, and the wake of
industrial decline, governments have taken responsibility for economic
growth (Habermas, 1975 [1973]), including policies that increase the value
of real estate (Bourdieu, 2005).
In the United States, some of local governments’ most important powers
are over real property (property in land and buildings) (Frug & Barron, 2008;
Valverde, 2012), and those powers have expanded to allow them to protect
properties’ value. In the early twentieth century, the US Supreme Court gave
local governments wide leeway to use their police (regulatory) and eminent
domain powers over real property. In Village of Euclid, Ohio v. Ambler Realty
Co., 272 U.S. 365 (1926), the court sanctioned local governments’ zoning controls. By the 1950s and 1960s, zoning was practically taken for granted across
the country, and its most important intended and realized consequence has
been the stabilization and growth of residential real estate prices. To the
extent that zoning and environmental regulations have drawn protests, the
opposition has been inspired by worries that instead of raising property
values, government was hurting them. For instance, a large debate over
“regulatory takings” concerns arguments about whether by taking property
value away, government in effect “takes” property. Thus, these protestors too
sanctioned the meaning of property as value, value government is responsible for protecting. In addition, when governments were unabashedly taking
property titles, the justification has been a protection of value. In Berman v.
Parker, 348 U.S. 26 (1954), the court allowed a city agency to take properties
in a wide area to eliminate “blight,” although individual properties in good
condition were sacrificed in the process. Local governments took advantage
of federal funding for slum clearance and urban renewal from 1949 to
1974 to acquire and demolish tens of thousands of properties in the hopes
of rebuilding and protecting neighboring properties from deteriorating.

The Public Nature of Private Property

7

Faced with fierce protests against the displacement of largely poor and
African-American residents and failures to rebuild clear areas and replace
low-cost housing units there or elsewhere, governments largely shelved
their eminent domain powers until the turn of the millennium. Governments seemed to have renewed their use of eminent domain for urban
redevelopment when the issue hit the news after the court handed down a
ruling in Kelo v. City of New London, 545 U.S. 469 (2005), which permitted a
local agency to take of over a hundred properties in the service of “economic
development.”
Local politicians have become fiercely determined to enact policies that
increase real estate prices. They join real estate developers in “growth
machines” that perpetuate such policies (Molotch, 1976). Constituents
sanction this policy direction, for they generally evaluate politicians by their
promises to provide growth and their success in doing so. Even those who
contest such policies as serving the rich and middle class expect government
to protect property’s value: they demand the protection of a different
kind of value—use value. The poor who cannot access financial capital to
grow expect governments to secure the value of shelter, community, and
sentiment in the land, buildings, and neighborhoods in which they have
property interests (Logan and Molotch, 1987). For example, in the wake of
Kelo, debates arose about US local governments’ use of eminent domain to
transfer properties from one private owner to another. Conflicts often pitted
those who demanded government to protect the use-values of property
for the poor against others who saw the need for government to create
exchange values, that is, to secure property prices. In other cases, where
conflict did not erupt, constituents supported eminent domain for new
private ownership, when doing so protected property value; by taking a
property of little value to its current owner and transferring it, government
could create a positive impact on neighbors’ use and exchange value (Becher,
2014).
In some of the instances of hybrids between public and private property
discussed previously, government’s contribution is value. Katherine Verdery
(2003) found that when formerly socialist Transylvania newly instituted private property in land in the 1990s, constituents forced the government to
make property economically valuable, not simply to protect control over title.
In the public–private partnerships US governments created to support urban
development, they contribute tax relief, infrastructure, and other forms of
in-kind and financial value to make projects happen. In part, these commitments of value give governments a crucial role in planning and a lasting stake
in projects, even when they are technically built on private land (Fainstein,
1995; Sagalyn, 2001; Zukin, 2010).

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

DISTRIBUTING VALUE
Property rules involve government intimately not only in creating value but
also in determining who deserves which valuable resources. The clearest
debate about the just or unjust desserts of private property has been between
promoters of free-market ideals and critics of private property. Libertarians
from Adam Smith to Friedrich Hayek argued that by protecting private
control over resources, government allows the deserving to accumulate
wealth to do so. Critics from Karl Marx to Karl Polanyi countered that
government simply uses private property as a veil to make its coerced
transfers of wealth from the deserving to the undeserving seem justified.
These critics draw attention to the original, and violent, establishment of
property rights, before government protects the more civil transfers of
property through market transactions.
In practice, governments make decisions about the distribution of property protections by establishing various and complicated legal doctrines and
executive policies about the origination of property rights. Rules about how
one establishes rightful claims over a property title provide one example.
Some of these government decisions are evident in the proffering of original
titles under existing governments. When the nineteenth century US government handed out its first titles, claims were made based on settlement and
homesteading, in other words by getting there first and staying and using a
property.
Present-day judicial doctrine provides significant guidance in how governments should adjudicate competing claims about the just distribution
of property. In the area of privately owned minerals, the legal “right of
capture” leads governments to recognize the claims of the first arriver as
justified, and still plays an important role in evaluating property claims.
Accordingly, owners of mineral rights to some extent establish claims that
will be backed up by courts by being the first among their neighbors to
extract the mineral (hard mineral deposit, oil, or gas) from underground.
Today’s “adverse possession” laws allow courts to transfer titles from
owners who have abandoned their properties to whomever arrived and
used them for some period of years. These laws demonstrate responsiveness
to claims to property based on the productive use of that property, rather
than simply the shuffling of some paper. These are just two of the many
legal doctrines proclaiming exactly how governments should make, and
then enforce, distributional decisions.
Other laws involve government in adjudicating who gets what in nonmarket transfers of property. Of course marriage and divorce laws largely determine rightful ownership and have changed drastically over time. Inheritance
laws guide government determinations of rightful ownership when those

The Public Nature of Private Property

9

with close ties to the deceased claim entitlements. What those laws say about
the distribution of property—what counts as a justified demand and who
can make it—vary significantly over time (Hartog, 2012) and cross-nationally
(Beckert, 2007).
Even the creation of infrastructure and other economic growth policies,
activities in which government often fails to make distributional decisions explicit, create very significant distributional consequences. Indeed,
governments’ various policies that create value, discussed in the section
previously, necessarily involve distributional choices, for governments
must decide where, when, and how many resources to dedicate for growth
and infrastructure. As mentioned earlier, critics point out that seemingly
universal growth policies actually lead governments to spend money on
infrastructure, services, and development in neighborhoods that will help
middle-class and wealthy owners and private developers, and take valuable resources away from renters and owners of properties in low-priced
neighborhoods.
There is an important similarity in all of government’s distributional
activities mentioned thus far. None of them focus on market transfer, the
ideal distributional action that private property makes possible and that
seems by definition to exclude government from involvement. It is often
assumed that market transfers are unbiased or fair in terms of distributional
consequences because the state is not making the distributional decisions
when they happen; instead, the state is protecting markets. In the aforementioned examples, government involvement in distribution is fairly exposed
because government is doing something other than protecting a market
transfer. Recent scholarship undermines that assumption, suggesting that
we need to look critically at governments’ distributional decisions not
only in nonmarket transfers but perhaps especially in market transfers.
Some of the most provocative research on property transfers today is being
completed by critics of government support for market transfers of property
as unjustified. This scholarship is most promising in its progress toward
reimagining possibilities for property rules. These critiques imagine regimes
of property with new (although largely based on traditional and indigenous
value systems) justifications for property claims (Tsing, 2005). In recent
years, charges of “global land grabs” have been made against multinational
companies for acquiring massive amounts of property in the global south
for natural resource extraction. In a critique of contemporary policy that
harkens back to Marx’s admonishment of the establishment of private property in land, today’s scholars and activists lambast national governments
and international agencies for their support of these transfers. They hope
that governments and international agencies will institute recognition of
property rights based on prior uses such as foraging or species preservation

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

over market purchases (Borras et al., 2011; Wolford, Borras, Hall, Scoones, &
White, 2013).
Researchers must uncover the complicated ways in which modern private
property serves public goods or interests. One of the simplest and enduring
questions is about how private property distributes resources. The question
“Who owns what?” can be one of the most challenging to answer, but
online records about land may change that. We also need to know how
publics (governments, social movements, and citizens) get owners what
they have. How do governments control property distribution through
rules and policies on contracts, privatization, inheritance, marriage and
divorce, regulation, and reparations or damage compensation? How do
changing laws restrict or expand private property rights—for instance,
by demarcating new forms of intellectual property or expanding governments’ civil forfeiture powers? How are social movements fomenting these
changes? Social scientists should track the strategies, successes, failures
and unintended consequences of movements targeting the state on the
right and the left. We should describe libertarian and neoliberal activism
in the name of liberal property rights as well as left-leaning anti-land
grab and squatters’ movements promoting alternative notions of resource
governance. Indeed, researchers should look even beyond government and
activists to citizens as publics: to research what property means in people’s
everyday lives, and how those understandings are contested. This research
into property-as-interpretation must attend to how people treat property
as value, including but not limited to market price. And some of the most
promising research will uncover bottom-up innovations in which everyday
understandings of property as public and private become realized legally in
new forms of tenure. We need to know about community land trusts and
cooperatives—entities that own increasing amounts of real property—and
about business improvement districts and land banks—entities that govern
increasing amounts of property. In these ways, researchers can expose how
emerging forms of interpretation and governance of property blend public
with private interests.
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MIT Press.
Singer, J. W. (2000). Entitlement: The paradoxes of property. New Haven, CT: Yale University Press.
Stark, D. (1996). Recombinant property in East European Capitalism. American Journal of Sociology, 101(4), 993–1027.
Tsing, A. L. (2005). Friction: An ethnography of global connection. Princeton, N.J.: Princeton University Press.
Underkuffler, L. (1996). Property: A special right. Notre Dame Law Review, 71(5),
1033–1058.
Valverde, M. (2012). Everyday law on the street: City governance in an age of diversity.
Chicago, IL: University of Chicago Press.
Veblen, T. (1945 [1923]). Absentee Ownership and Business Enterprise in Recent Times:
The Case of America. New York, NY: Viking Press.
Verdery, K. (2003). The vanishing hectare: property and value in postsocialist Transylvania.
Ithaca, NY: Cornell University Press.
Warner, S. B. (1987). The private city: Philadelphia in three periods of its growth (2nd ed.).
Philadelphia: University of Pennsylvania Press.
Weber, M., Roth, G., & Wittich, C. (1978). Economy and society: An outline of interpretive
sociology. Berkeley: University of California Press.
Wolford, W., Borras, S. M., Hall, R., Scoones, I., & White, B. (2013). Governing global
land deals: The role of the state in the rush for land. Development and Change, 44,
189–210.
Zukin, S. (2010). Naked city: The death and life of authentic urban places. New York, NY:
Oxford University Press.

DEBBIE BECHER SHORT BIOGRAPHY
Debbie Becher is an Assistant Professor of Sociology at Barnard College,
Columbia University. Her research links political culture to legal, urban, and
economic sociology through the study of property. She has published several
articles and a book, Private Property and Public Power on property takings and
is conducting research transfers of mineral rights for natural gas extraction.
She received her BA in Mathematics from the University of Virginia and her
MA and PhD in Sociology from Princeton University. Debbie teaches classes
on law, urban studies, and social theory.

The Public Nature of Private Property

13

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The Public Nature of Private Property
DEBBIE BECHER

Abstract
American legal academics describe private property as a set of private rights. However, liberal ideas of private control poorly describe legal practices, and thus the
bundle of rights is a misleading metaphor for private property. Indeed, social theorists have long understood that property is not the ownership of a thing or a set
of individual rights, but a set of social agreements about what ownership entails. In
the late twentieth and early twenty-first century, constituents have expected governments to protect the value in their properties, not just their control over the resources.
Property rules involve government intimately not only in creating value but also in
determining who deserves which valuable resources.

THE EMERGENCE AND EXPANSION OF PRIVATE PROPERTY
AS A LIBERAL IDEAL
When American legal academics describe private property, they present a
liberal notion of property as a set of private rights. One of the first things
professors of law teach students in property classes is that legally, property is
not an object one owns. Rather, it is a bundle of rights that can be split among
many individuals or entities. These include rights to use, exclude others from
using, and transfer property. When government protects private property in
this way, it protects individual control over property; those with property
rights can do what they wish, as long as they do not interfere with others’ similar interests. By this definition, government seems no more than an arbiter of
agreements and conflicts among private parties, and thus the conception of
property as a set of rights comports well with a liberal or libertarian notion
of a restrained government. [See Radin (1993) for discussion of how theories
of government ally with positions on property.]
Although concerns for the public good undergird political theorists and
economists’ celebratory writing about private property, many of these scholars also describe the essential tenet of private property to be protection of
private entities’ control over resources. Classical and contemporary theorists
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

have argued that private initiative leads to public welfare. John Locke contended that the protection of private control over land benefitted the public,
for with security that one could reap the fruits of one’s harvest, men would
labor to plow, seed, and nurture their crops, and communities would benefit
from agricultural production. For Jeremey Bentham and other utilitarians,
the distribution of power to private parties to use and transfer their control over resources allows for efficient coordination, and thus much greater
overall welfare than any centralized mechanism of control could. Contemporary libertarians and law-and-economics scholars revere private rights as
the best solution to problems of coordination, such as of potential overuse of
land for cattle grazing or urban development (Ellickson, 1991; Epstein, 1985).
Economists such as Hernando de Soto (2000) endorse private property as
the key to economic development in countries that have lagged behind more
advanced capitalist democracies.
Like private property’s defenders, critics who attack it as damaging to the
public good describe the institution itself as protection for private control
over resources. Karl Marx and Ben Fowkes (1977 [1887]) and Max Weber,
Guenther Roth, and Claus Wittich (1978) harshly criticized the English
government’s violent expropriation of common lands, once accessible to
serfs, to transfer control to a few aristocratic recipients of private titles. They
lambasted the resulting inequalities in wealth accumulation as inimical
to the public good. Marx, of course, went further to argue that private
property in an industrial era led to the exploitation of laborers and that only
the abolition of private property and the treatment of property as public
would end such oppression. Alexis de Tocqueville and Henry Reeve (1835)
condemned the US government in the nineteenth century for unabashedly
rewarding private land speculation during westward expansion. Thorstein
Veblen (1945 [1923]) similarly faulted private property for allowing a class
of investors in early twentieth century American cities to extract rent from
poor tenants. Karl Polanyi (1944) also presented private property as the
antithesis of the public good. He interpreted the history of capitalism as
a “double movement” between private accumulation supported by the
institution of private property and public goods created by government’s
social regulatory policies. Polanyi extended Marx’s critique of private
property as the “commodification” of goods such as land and labor, goods
that have important social values other than their market price. Private
property, he argued, devalued and corrupted the social values in those
goods. David Harvey (1982) and John Logan and Harvey Molotch (1987)
brought this critique of commodification into the present with their attacks
on post-1970s governments’ unsavory alliances with private developers
and disrespect for the poor, who cannot possibly hope to own property
in areas that benefit from rising real estate prices. Thus, despite starkly

The Public Nature of Private Property

3

different normative positions on how and whether private property serves
public goods, defenders and critics share an understanding of what private
property actually is: protection of private control over scarce resources.
As privatization has proliferated across the globe, this liberal institution
seems to have become hegemonic. From its inception, the notion of private
property as a set of individual rights seemed foundational to liberal, capitalist democracies. As western European nations transitioned from feudalism to capitalism, they transferred the control of land from the crown to
private parties. In the late twentieth and twenty-first centuries, as eastern
European countries abandoned socialism, they have adopted private property rules to govern land, utilities, and oil. At the same time, Latin American countries have converted communal and national ownership of these
resources to private ownership. Private property is expanding even in the
most advanced capitalist countries, such as the United States, where publicly owned highways, prisons, and schools are being transferred to private
ownership and previously un-owned knowledge is becoming intellectual
property. These changes suggest a centuries-long shift from public, common,
or government-owned property to private property, and thus a transfer of
control from governments to private entities.
However, liberal ideas of private control poorly describe legal practices,
and thus the bundle of rights is a misleading metaphor for private property.
To be sure, in the American tradition called civic republicanism, political
and legal theorists have long proclaimed that private property creates and
enforces community responsibilities and entitlements (Lynd 1987). Most
recently, law professors calling themselves scholars of “progressive property” draw attention to their analyses of how American legal doctrine requires
greater demands on government than the ideas of an owner’s control or
private rights suggest (Alexander, Peñalver, Singer, & Underkuffler, 2009;
Singer, 2000; Underkuffler, 1996). Indeed, the aforementioned observations,
defenses, and critiques of private property shed inordinate focus on ownership, leading to inaccurate assumptions that when it protects private property
(as opposed to managing public property), government is responsible for no
more than protecting the private owner’s control. When sociologists and others observe property as practiced, it becomes clear that the word “private”
in private property hides governments’ intimate and varied involvement in
creating and maintaining the institution. The idea of rights has perpetuated
misunderstandings about the real-life institution of private property.
IN PRACTICE, PRIVATE PROPERTY IS “PRIVATE” IN NAME ONLY
Private property can often appear to exist without much state support,
deceiving observers into believing that government action is extremely

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limited. In reality, however, states are intimately involved in and essential to
making and maintaining private property. Karl Marx and Max Weber drew
attention to how essential government coercion was to the transformation of
communal to private property, and historians of the early United States have
documented the enormous colonial and then federal military and administrative resources dedicated to settlement and propertization. Recently,
governments transitioning from socialism to capitalism or formalizing private property rights in effect create private property (de Soto, 2000; Verdery,
2003). Even today’s governments in advanced capitalist countries dedicate
significant executive and judicial resources to the tracking of property
interests, dispute settlement, and regulatory enforcement, and legislative
resources to the creation of those regulations. In addition, even the most
libertarian advocates for limited government confess that to make private
property viable, governments need to do more than protect private control.
For example, libertarian-leaning legal scholar Robert Ellickson (1993) admits
that cities with private real estate require government-built infrastructure for
utilities, sidewalks, and street lights. Infrastructure is necessary for private
owners’ enjoyment of their properties but impractical for those owners to
provide on their own.
Moreover, private property constantly changes, and the state articulates
and enforces those changes. For instance, in different times and places,
states allow different objects to be owned. Less than two centuries ago, it
was widely accepted in much of the United States that people could be
owned as property, as slaves, or as wives. Now, such a notion is practically
unimaginable, but conflicts rage over whether human organs, humans
(through surrogacy and adoption), pharmaceuticals, music, and software
can be owned, and if so, what ownership entails (Peñalver and Katyal, 2010;
Radin, 1996). Beyond what resources can be property, states also change
what entities or individuals they allow to own property, what uses they
allow and prohibit, how they enforce property rules, and how transfers can
be made (Carruthers and Ariovich, 2004). Meanings of private property are
always multiple, contested (Blomley, 2003), and changing (Carruthers and
Ariovich, 2004).
In many contexts, in fact, the line between public and private property is
extremely blurry. For the eighteenth century New York City government,
managing the property it owned, just as a fully private owner might
have, was one of its primary activities (Hartog, 1983). Historian Samuel
Bass Warner (1987) characterized nineteenth century Philadelphia as “the
private city” because of government’s intimate involvement in supporting
private economic development, particularly real estate growth. In the late
twentieth century, as postsocialist regimes formally shifted land from public
to private property, in practice they preserved many of the tenets of public

The Public Nature of Private Property

5

property, and thus produced something new, what sociologist David Stark
(1996) tagged “recombinant property.” (Also see Verdery, 2003). In similar
ways, private property in previously colonized places actually looks much
more public than the formal name of private indicates (J. Comaroff & J. L.
Comaroff, 2006; Merry, 2000). Thus, in many cases, private property retains
elements of public property during its emergence.
The hybridity of public and private in so-called private property is also
found well beyond the early instantiations of private property. In the late
twentieth and early twenty-first century United States, the global standard
bearer for private property, new forms of public–private cooperation in property elude this easy classification. In the 1980s and 1990s, municipal governments developed innovative “public–private partnerships” to foment the
development of shopping malls, convention centers, sports arenas, and gambling centers—on formally public and private land. In these and other partnerships, governments contribute land, infrastructure improvements, and
tax and regulatory relief to projects constructed and largely controlled by private entities. For services needed outside of such large-scale developments,
governments have also created new forms of public–private coordination
to sustain property. Federal and local governments are instituting contracts,
vouchers, and subsidies for privately owned and operated schooling, housing, and prisons. In addition, new public/private entities have emerged with
legal powers to control properties. Business improvement districts that can
tax small neighborhoods for their services, land trusts that purchase property interests for community initiatives such as preservation, and cooperative housing associations are becoming more common and legally complex
(Geisler, 2000; Leavitt & Saegert, 1990).
Indeed, social theorists have long understood that property is not the ownership of a thing or a set of individual rights, but a set of social agreements
about what ownership entails. Instead of liberal entitlements, rights are any
claims that a community endorses as justified (Coleman, 1990). The history of
private property in particular involves complicated, ever-changing notions
about what exactly government is responsible for.
GOVERNMENTS ACTIVELY AFFECTING PROPERTY’S VALUE
CREATING VALUE
Recently, citizens demand that governments make and maintain properties’
value. Take the case of the most traditional form of property—real property
(property in land and buildings). Throughout the twentieth century United
States, it has become clearer that property is meaningful to its owners for
financial value, as much as for control or use of a thing. Thorstein Veblen

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

(1945 [1923]) noticed in the early twentieth century United States that
property in cities was becoming a source of rent, rather than of shelter
for owners. After the mid-twentieth century, as homeownership greatly
expanded and housing prices rose steadily, owning (and potentially selling a
home) became the single greatest source of wealth for the average American
family.
In the late twentieth and early twenty-first centuries, constituents have
expected governments to protect the value in their properties, not just
their control over the resources. Rather than simply protect their control
over land, owners expect governments to protect the value of their real
estate (Becher, 2014). Governments create and insure the value of their
properties, and have unabashedly enacted growth policies to meet those
demands. This shift in government policy over private property coincided
with broader changes in governments’ economic policies. In the aftermath
of World War II, the emergence of Keynesian economics, and the wake of
industrial decline, governments have taken responsibility for economic
growth (Habermas, 1975 [1973]), including policies that increase the value
of real estate (Bourdieu, 2005).
In the United States, some of local governments’ most important powers
are over real property (property in land and buildings) (Frug & Barron, 2008;
Valverde, 2012), and those powers have expanded to allow them to protect
properties’ value. In the early twentieth century, the US Supreme Court gave
local governments wide leeway to use their police (regulatory) and eminent
domain powers over real property. In Village of Euclid, Ohio v. Ambler Realty
Co., 272 U.S. 365 (1926), the court sanctioned local governments’ zoning controls. By the 1950s and 1960s, zoning was practically taken for granted across
the country, and its most important intended and realized consequence has
been the stabilization and growth of residential real estate prices. To the
extent that zoning and environmental regulations have drawn protests, the
opposition has been inspired by worries that instead of raising property
values, government was hurting them. For instance, a large debate over
“regulatory takings” concerns arguments about whether by taking property
value away, government in effect “takes” property. Thus, these protestors too
sanctioned the meaning of property as value, value government is responsible for protecting. In addition, when governments were unabashedly taking
property titles, the justification has been a protection of value. In Berman v.
Parker, 348 U.S. 26 (1954), the court allowed a city agency to take properties
in a wide area to eliminate “blight,” although individual properties in good
condition were sacrificed in the process. Local governments took advantage
of federal funding for slum clearance and urban renewal from 1949 to
1974 to acquire and demolish tens of thousands of properties in the hopes
of rebuilding and protecting neighboring properties from deteriorating.

The Public Nature of Private Property

7

Faced with fierce protests against the displacement of largely poor and
African-American residents and failures to rebuild clear areas and replace
low-cost housing units there or elsewhere, governments largely shelved
their eminent domain powers until the turn of the millennium. Governments seemed to have renewed their use of eminent domain for urban
redevelopment when the issue hit the news after the court handed down a
ruling in Kelo v. City of New London, 545 U.S. 469 (2005), which permitted a
local agency to take of over a hundred properties in the service of “economic
development.”
Local politicians have become fiercely determined to enact policies that
increase real estate prices. They join real estate developers in “growth
machines” that perpetuate such policies (Molotch, 1976). Constituents
sanction this policy direction, for they generally evaluate politicians by their
promises to provide growth and their success in doing so. Even those who
contest such policies as serving the rich and middle class expect government
to protect property’s value: they demand the protection of a different
kind of value—use value. The poor who cannot access financial capital to
grow expect governments to secure the value of shelter, community, and
sentiment in the land, buildings, and neighborhoods in which they have
property interests (Logan and Molotch, 1987). For example, in the wake of
Kelo, debates arose about US local governments’ use of eminent domain to
transfer properties from one private owner to another. Conflicts often pitted
those who demanded government to protect the use-values of property
for the poor against others who saw the need for government to create
exchange values, that is, to secure property prices. In other cases, where
conflict did not erupt, constituents supported eminent domain for new
private ownership, when doing so protected property value; by taking a
property of little value to its current owner and transferring it, government
could create a positive impact on neighbors’ use and exchange value (Becher,
2014).
In some of the instances of hybrids between public and private property
discussed previously, government’s contribution is value. Katherine Verdery
(2003) found that when formerly socialist Transylvania newly instituted private property in land in the 1990s, constituents forced the government to
make property economically valuable, not simply to protect control over title.
In the public–private partnerships US governments created to support urban
development, they contribute tax relief, infrastructure, and other forms of
in-kind and financial value to make projects happen. In part, these commitments of value give governments a crucial role in planning and a lasting stake
in projects, even when they are technically built on private land (Fainstein,
1995; Sagalyn, 2001; Zukin, 2010).

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

DISTRIBUTING VALUE
Property rules involve government intimately not only in creating value but
also in determining who deserves which valuable resources. The clearest
debate about the just or unjust desserts of private property has been between
promoters of free-market ideals and critics of private property. Libertarians
from Adam Smith to Friedrich Hayek argued that by protecting private
control over resources, government allows the deserving to accumulate
wealth to do so. Critics from Karl Marx to Karl Polanyi countered that
government simply uses private property as a veil to make its coerced
transfers of wealth from the deserving to the undeserving seem justified.
These critics draw attention to the original, and violent, establishment of
property rights, before government protects the more civil transfers of
property through market transactions.
In practice, governments make decisions about the distribution of property protections by establishing various and complicated legal doctrines and
executive policies about the origination of property rights. Rules about how
one establishes rightful claims over a property title provide one example.
Some of these government decisions are evident in the proffering of original
titles under existing governments. When the nineteenth century US government handed out its first titles, claims were made based on settlement and
homesteading, in other words by getting there first and staying and using a
property.
Present-day judicial doctrine provides significant guidance in how governments should adjudicate competing claims about the just distribution
of property. In the area of privately owned minerals, the legal “right of
capture” leads governments to recognize the claims of the first arriver as
justified, and still plays an important role in evaluating property claims.
Accordingly, owners of mineral rights to some extent establish claims that
will be backed up by courts by being the first among their neighbors to
extract the mineral (hard mineral deposit, oil, or gas) from underground.
Today’s “adverse possession” laws allow courts to transfer titles from
owners who have abandoned their properties to whomever arrived and
used them for some period of years. These laws demonstrate responsiveness
to claims to property based on the productive use of that property, rather
than simply the shuffling of some paper. These are just two of the many
legal doctrines proclaiming exactly how governments should make, and
then enforce, distributional decisions.
Other laws involve government in adjudicating who gets what in nonmarket transfers of property. Of course marriage and divorce laws largely determine rightful ownership and have changed drastically over time. Inheritance
laws guide government determinations of rightful ownership when those

The Public Nature of Private Property

9

with close ties to the deceased claim entitlements. What those laws say about
the distribution of property—what counts as a justified demand and who
can make it—vary significantly over time (Hartog, 2012) and cross-nationally
(Beckert, 2007).
Even the creation of infrastructure and other economic growth policies,
activities in which government often fails to make distributional decisions explicit, create very significant distributional consequences. Indeed,
governments’ various policies that create value, discussed in the section
previously, necessarily involve distributional choices, for governments
must decide where, when, and how many resources to dedicate for growth
and infrastructure. As mentioned earlier, critics point out that seemingly
universal growth policies actually lead governments to spend money on
infrastructure, services, and development in neighborhoods that will help
middle-class and wealthy owners and private developers, and take valuable resources away from renters and owners of properties in low-priced
neighborhoods.
There is an important similarity in all of government’s distributional
activities mentioned thus far. None of them focus on market transfer, the
ideal distributional action that private property makes possible and that
seems by definition to exclude government from involvement. It is often
assumed that market transfers are unbiased or fair in terms of distributional
consequences because the state is not making the distributional decisions
when they happen; instead, the state is protecting markets. In the aforementioned examples, government involvement in distribution is fairly exposed
because government is doing something other than protecting a market
transfer. Recent scholarship undermines that assumption, suggesting that
we need to look critically at governments’ distributional decisions not
only in nonmarket transfers but perhaps especially in market transfers.
Some of the most provocative research on property transfers today is being
completed by critics of government support for market transfers of property
as unjustified. This scholarship is most promising in its progress toward
reimagining possibilities for property rules. These critiques imagine regimes
of property with new (although largely based on traditional and indigenous
value systems) justifications for property claims (Tsing, 2005). In recent
years, charges of “global land grabs” have been made against multinational
companies for acquiring massive amounts of property in the global south
for natural resource extraction. In a critique of contemporary policy that
harkens back to Marx’s admonishment of the establishment of private property in land, today’s scholars and activists lambast national governments
and international agencies for their support of these transfers. They hope
that governments and international agencies will institute recognition of
property rights based on prior uses such as foraging or species preservation

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

over market purchases (Borras et al., 2011; Wolford, Borras, Hall, Scoones, &
White, 2013).
Researchers must uncover the complicated ways in which modern private
property serves public goods or interests. One of the simplest and enduring
questions is about how private property distributes resources. The question
“Who owns what?” can be one of the most challenging to answer, but
online records about land may change that. We also need to know how
publics (governments, social movements, and citizens) get owners what
they have. How do governments control property distribution through
rules and policies on contracts, privatization, inheritance, marriage and
divorce, regulation, and reparations or damage compensation? How do
changing laws restrict or expand private property rights—for instance,
by demarcating new forms of intellectual property or expanding governments’ civil forfeiture powers? How are social movements fomenting these
changes? Social scientists should track the strategies, successes, failures
and unintended consequences of movements targeting the state on the
right and the left. We should describe libertarian and neoliberal activism
in the name of liberal property rights as well as left-leaning anti-land
grab and squatters’ movements promoting alternative notions of resource
governance. Indeed, researchers should look even beyond government and
activists to citizens as publics: to research what property means in people’s
everyday lives, and how those understandings are contested. This research
into property-as-interpretation must attend to how people treat property
as value, including but not limited to market price. And some of the most
promising research will uncover bottom-up innovations in which everyday
understandings of property as public and private become realized legally in
new forms of tenure. We need to know about community land trusts and
cooperatives—entities that own increasing amounts of real property—and
about business improvement districts and land banks—entities that govern
increasing amounts of property. In these ways, researchers can expose how
emerging forms of interpretation and governance of property blend public
with private interests.
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DEBBIE BECHER SHORT BIOGRAPHY
Debbie Becher is an Assistant Professor of Sociology at Barnard College,
Columbia University. Her research links political culture to legal, urban, and
economic sociology through the study of property. She has published several
articles and a book, Private Property and Public Power on property takings and
is conducting research transfers of mineral rights for natural gas extraction.
She received her BA in Mathematics from the University of Virginia and her
MA and PhD in Sociology from Princeton University. Debbie teaches classes
on law, urban studies, and social theory.

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