The Need to Constantly Revisit Our Understanding of ‘Ownership’

‘Ownership’: an open-ended term

Debates on ownership as a legal institution seem to be either very policy-oriented, being the outcome of philosophical and political discussion, or very dogmatic, resulting from a pre-set, rigid and rather formalist legal framework. The word ‘ownership’, written as an English term, is almost close to being pointless. The meaning of the word ‘ownership’ depends upon the linguistic, social, political and legal context in which the term is used. I can ‘own’ a management process when I am a manager of a group of people, but I can also ‘own’ my house, like I can ‘own’ data. In all of these cases, the meaning of the word ‘ownership’ is different. Added to this complexity is the fact that, when discussing legal questions in English, the terminology which is being used necessarily takes place against the background of English law. This is especially problematic in property law, as in this area, the Common Law and the Civil Law tradition show quite significant divergence. Where the Civil Law tradition assumes that ownership is unitary, cannot be fragmented, is absolute in extent and time, the Common Law includes time elements. This is, for example, the case with a leasehold estate. The Common Law also has a non-absolutist, more relative view of ownership, for example, when it uses the doctrine of relativity of title or looks at the world around us through the lens of trust law, with its parallel common law and equitable entitlements. So, uncertainty about the true meaning of the English word ‘ownership’ (as, I should add, the word ‘assets’) abounds, reinforced by differing philosophical approaches and, more generally, by what we now call property theories. Still, English has become the prevailing academic language for discussing legal developments from a comparative perspective, as seen at the roundtable, even though all participants had a strong Civil Law background.

Novel and recurrent challenges

Caroline Cauffman, co-director of MEPLI, opened the roundtable with welcoming words, after which the research project ‘Revocable Properties’ was presented by Antoni Vaquer (University of Lleida). This was followed by the roundtable, which I had the pleasure of chairing. Speakers were Héctor Simón (University of Rovira i Virgili), Maria Amalia Blandino (University of Cádiz), Agustín Parise (Maastricht University) and Vaquer. The roundtable ended with a plenary discussion and final remarks by Bram Akkermans (Maastricht University).

 The background to the discussions was the traditional Civil Law approach to ownership, focusing on questions such as: does ownership, in addition to being traditionally a right ‘against the world’, also entail duties and serve a social and today also an ecological function, does our understanding of ownership change when we look at it from the perspective of digital assets, and does ownership really have to be infinite? Does all of this result in a paradigm shift? These were the very fundamentals discussed during the roundtable. Blandino examined the social function of ownership, more particularly analysing how ownership changes under the pressure of a housing crisis; Parise focused on the ecological impact as to how ownership should be perceived, arguing that we see a paradigm shift from first an historically duplex, then a liberal, followed by a social to now an ecological function, focusing on the role which owners have in preserving the environment. Moreno explained the concept of temporary ownership, as laid down in the Catalan Civil Code. He distinguished this form of ownership from donation with reversion on term and trusteeship subject to a term (fideicommissum). In the case of temporary ownership, title is split over time, so the title holder has full ownership for a limited period. Taking into account these paradigm shifts in ownership, Vaquer discussed how entitlement to digital property could be categorised as a new form of ownership, particularly from the perspective of mortis causa transmission of Bitcoins.

The roundtable showed that debates about what we mean by ownership, a question which we always need to ask at the crossroads of political philosophy and socio-economic demands, cannot but be revisited regularly to avoid the choices which were once made becoming petrified, thus preventing necessary adaptation.