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.