Vol. 10 No. 2 (February 2000) pp. 141-143.

WHOSE PROPERTY?: THE DEEPENING CONFLICT BETWEEN PRIVATE PROPERTY AND DEMOCRACY IN CANADA by Roy Vogt. Toronto, University of Toronto Press, 1999. 242pp. Cloth $50.00. ISBN 0-8020-4363-X. Paper $17.95.

Reviewed by Allan K. McDougall, Department of Political Science, University of Western Ontario.

Roy Vogt was a professor of economics and business ethics at the University of Manitoba prior to his death. His book, WHOSE PROPERTY?, was published posthumously. It presents Vogt's broad-ranging view of the challenges posed to democracy in contemporary capitalist society by our current definition of property rights. After deconstructing private property claims, Vogt poses a method to reconstruct property rights in a manner that transcended these challenges by reemphasizing the complex of rights imbedded in the early meaning of the term. Vogt starts with a brief description of property tenure in the common law tradition under feudalism, when claims to land and land use were defined through a number of complementary rights. Different persons or collectivities under the overarching right of the Crown held such claims. He then argues that that practice of segregating out a number of claims to the same physical property can be applied today by
focusing on aspects of property relationships such as: ownership, management rights, income or employment rights, and disposal rights. Such rights can be held by one as unitary property or by different persons, such as shareholders, managers and workers. This last case is then compared to the traditional inclusive control of land and/or productive resources in pre-capitalist times.

The emergence of capitalism saw the definition of the control of the productive capacity of property change from an inclusive set of rights to the private, exclusive right of an owner to manage, to reap the returns from, and to dispose of, that property. Vogt sees such exclusive and unitary right as the source of modern contradictions between capitalism and democracy in Canada. From that definitional shift, the author extends his analysis by recounting historical precedents in Canada that differed from the dogma of exclusive private property by references to state control of aspects of private property such as water and mineral rights. He then traces recent trends in the redistribution of property under family law before moving on to the redefinition of traditional property rights through claims to social
security benefits and the products of other state programs. In so doing he demonstrates how such claims are consistent with the earlier view of property rights as a bundle of claims to productive resources. He then concludes by arguing for a redefinition of rights to the productive capacity of property so that property became not only a resource to be deployed under capitalism but also a resource through which competing claims for enjoyment, employment, and income could be founded on customary use or past practice.

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Three case studies follow the historical analysis to illustrate the potential of the earlier concept of a bundle of property rights' to challenge recent claims to exclusive property. They are family law, aboriginal claims to communal property rights, and environmental protection and security. Each case follows the recent evolution of Canadian law and shows how values such as the right to support, claims to prior collective occupation, and the claim to the recognition of public priorities in the use of resources conflict with the notion of exclusive right to own and dispose of property.

In the first study, family property is distributed to reflect need, not private possession, and each spouse is seen as exercising claims to family property. In the second, aboriginal assumptions of property are contrasted with capitalist notions. Treaty negotiations reflect resolution the of these differences with an emphasis on the impact the recognition of aboriginal assumptions have had on the property concepts used by Canadian courts and legislatures (p. 87). Since the decision of the Supreme Court of Canada on the appeal of the Delgamuukw case from the British Columbia courts had not been released at the time of publication, the book is slightly dated. That decision changed the rules of evidence in a way that only bolsters Vogt's argument. The third case included growing recognition of consumer
protection, control on externalities of property use (such as the location of hydroelectric lines) and individual dependence on public goods (seen as a new form of property). These cases argue that a more inclusive approach to the definition of property would solve conceptual and regulatory problems in each field of law. With the cases offering the insight into the reconstruction of property rights, Vogt then addresses two broad areas of evolving legislative practice in Canada, the claims of workers and what he calls "new property" rights, following Charles Reich (1964). These include the rights to social benefits, health care and education. These claims for new property are placed neatly under the broad bundle of access to, and use of, resources found in the early common law view of property use and tenure.

In conclusion, Vogt's book distinguishes horizontal rights form vertical rights. The former include those components of access to property and its productive potential necessary to offer each individual the capacity to develop and enjoy some personal agency. Vertical rights, on the other hand, include those of ownership that would enable the deployment of resources productively in a capitalist environment. His goal at this point was to show, "how Canada might restructure property rights legally, constitutionally and organizationally to enrich the democratic character of our society, and in the process to provide greater justice and security for many citizens" (p. 198). His solutions include the advocacy of a more collective view of property, funding for groups advocating public concerns over the use of property, and the redistribution of ownership rights to include worker participation.

Overall, Vogt offers a well-constructed argument from a very interesting perspective, the advocacy of inclusive property rights. The argument is historically sound and the prescription does not require a new dogma, rather a reassertion of historical themes already extant in common law jurisdictions. His knowledge of Canadian constitutional and legal practice is sound. For an American reader, the mosaic of intergovernmental initiatives he traces have a significant

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history and are designed to meet many equalization issues found in both countries. The detail can make the last two chapters tough reading in places for those uninitiated in the nuances of Canadian federal-provincial fiscal relations, but Vogt's description is lucid and accurate. Otherwise, the style is very accessible and engaging. The thesis is provocative and productive. It offers a conceptual shortcut that circumvents the standoff between advocates of redistributive rights and the advocates of private property as seen through the lens of neo-liberal capitalism. It is not a legal text but it is set in the context of Canada's constitutional and legal
practice. It is a competent analysis of the potential inherent in older notions of claims to property and their adaptation to contemporary democratic needs in a capitalist order. For those concerned with questions of redistributive rights in the current political climate this book is a "must
read."

REFERENCE:

Reich, Charles. 1964. "The New Property." YALE LAW JOURNAL. 73: 733.


Copyright 2000 by the author.