One often wonders what possesses theorists on property. Some of them seriously believe (or want us to believe) that property is 'entirely the work of law', that there was no property before laws were made. Furthermore, they may contend that 'property is nothing but a basis of expectation'. Well, this may be true in some sense, that is, in some sense of basis and in some sense of expectation. A basis of expectation need not be legal, to be sure, but may also be social (in a nonlegal, factual-modal way) or normative when one's own or other people's argumentation in terms of norms (or moral rights) is persuasive enough. And then, expectation is so general a term that it may be expectation on the basis of mathematically calculable probabilities, on the basis of an existing system of (sub)cultural norms or rules (including legal ones) or on no other basis than what is hoped for. Now, it is indeed possible to make nonlegal property impossible by stipulative definition. Yet, such a definition is not justifiable from a historical perspective, because human institutions, including those governing the right in things and the idea of 'mine' and 'thine', existed long before the advent of legal systems. Moreover, in addition to the original meaning of own, proper has also acquired the moral, or partially moral, connotation of right, correct, appropriate and very good. (An archaic meaning is even virtuous.) But it must be admitted that these are weak arguments for those embracing legalism with regard to property. What really counts tho, and what the legalists cannot do anything about, is that a purely legal definition of property does not change the subject; it may only force us to slightly reformulate our statements. Instead of speaking of "property" we would have to speak of "the right in things" or "the right to (or not to be excluded from) the use (and nonuse) of things" and "the right to exclude (and include) others from (and into) the use of things". The same legalists may, then, rejoin --as has been done-- that the concept of right itself is nothing but a legal notion (or 'nothing but nonsense'), but also these right statements can, again, be reformulated in should statements. The ultimate question can therefore not be abrogated: The law does proscribe this and prescribe that, but should it proscribe this and should it prescribe that?.

The legalist position on property may be less simplistic than sketched above. It may be asserted that property is indeed just a legally enforceable claim, but that the enforceability itself depends on 'society's belief that it is a moral right'. This is a kind of mixed moral-cultural-legal notion. It is a legal notion which is also cultural in that the law is based upon a societal belief (or pattern of expectations), and also moral in that the belief concerns morality, not just the legal institution as it is. Yet, if there are norms with respect to people's relations to things (norms people can have a moral belief about), then there is also 'property' in the normative, or at least in the more doxastic, moral, sense. It is then merely a contingent matter whether 'society' has the right belief about these norms; and it is then merely a contingent matter whether the law actually enforces what 'society' believes. It may do so, but there is no guarantee. Instead of entangling the legal, cultural and moral threads of thought, conceptual clarity requires that we should keep them apart, at least until property has been properly analyzed.

Both in the legal and in the cultural conception property is a person-made product in that it depends on the existence of a communal or societal institution, whether legal or nonlegal. It has been suggested that this institution naturally develops with the advance of civilization in what has been called "a spontaneous order", as opposed to a so-called 'organization'. On this view one could not superimpose whatever institution of property one prefers upon such a 'functioning spontaneous order', nor could one start from scratch. This conception of property, whether correct or incorrect, is basically cultural, and the suppositions about the possibility of changing the institution of property in an existing society would be sociological in the event that they could be supported by scientific evidence. But even if the institution of property could not be modified as 'one' pleases --and who is 'one' supposed to be?-- this modal condition merely concerns 'property' in a cultural or legal sense.

In a strictly normative sense property is independent of human institutions, just as the discretionary right to life or other rights of personhood are. This is historically also the position of the natural rights theorists (at least approximately). The argument of the legalist philosophers against nonlegal property was primarily an objection against the property of the natural rights theorists. According to the legalist philosophers there simply would not be such a thing as 'natural property' --where natural, on this occasion, means nonlegal--; according to the natural rights theorists the moral claim to certain things existed prior to and independently of any legal description. Property was, then, thought of as a right derived from a fundamental 'law of nature', for example, that 'mankind ought to be preserved'. Such a 'natural law' might also provide the moral justification to the poor to take what they need from what is, conventionally or legally speaking, the property of others, a right the legalist would even have to deny to those dying of starvation (unless the law of 'er own country would happen to recognize this moral right of self-preservation). Tho we have already dismissed the incalculable opportunism and crudity of doctrines of naturalness, they were right in their recognition of a nonlegal or noncultural, normative sphere. If the question whether the law of the land does indeed recognize, for example, some moral right of self-preservation is of any import at all to the legalistically minded, 'e must admit that there is more involved in 'property', and the right to exclude other people, than the order of law. It is the difference between property being legal and property being legitimate.

Property can stipulatively be defined as a factual-modal, legal or cultural notion, or alternatively, as a normative notion. We have seen why a stipulative definition does not change the subject; at the most it alters our vocabulary with respect to this subject. Now, what may be devastative is not the use of this terminology instead of that one, but the confusion of different notions, and the use of one term in different senses. In the case of property this is, first and foremost, the indiscriminate mixing of the legal, cultural and normative notions and the employment of the term property in a legal or cultural sense at one place, and in a normative sense at another. A theory of property may contain crucial transitions from the one type of notion to the other without realizing this, without making this explicit or without defending that people would always have a moral obligation to obey the law, inclusive of the law of property. Even when the transition from the one ontological sphere of property to the other is made explicit, no defense can be given for an unconditional ethical duty to abide by the law of property in all circumstances. The minimum requirement for the morality of such a duty would be based on the (or some) metadoctrinal principle, but even then the law in question must not be afoul of this principle itself.

When a theorist poses the question whether a certain distribution of property is just or not, 'e can only speak about 'property' in a (sub)cultural or legal sense. The distribution of property in a normative sense is always just in a normative sense. (Altho it may be morally just in one respect, and morally unjust in another.) So, a theorist referring to the just acquisition of holdings and the just transfer of holdings in one breath with the rectification of injustice in holdings, speaks about property as an ethical right in the first two cases and about property as a cultural or legal right in the third case. And when 'e claims that people do not only have a right to receive but also a right to give, they have to make out for themselves whether this is an ethical right to give what they legally own, or to give what they ethically own. (Furthermore, they will also have to disentangle the extrinsic from the intrinsic sense of right.) But if property is supposed to be a legal notion, people can only have a legal right to give what they legally own; and if a normative notion, only an ethical right to give what they ethically own, not necessarily legally. Thus, no owner can have the ethical right to devise or bequeath something to a particular person which at the moment 'e dies returns to what is normatively speaking the property of the whole community, held in common or distributed equally among its (living) members.

Those who are concerned about the justice or injustice of legally or socially distributed property, have been blamed for committing a kind of 'constructivist fallacy'. Justice would, then, only be a virtue of individual persons or a characteristic of their individual actions or rules. The term could, on this view, not be applied to the outcomes of a whole society which is --it is insisted-- a 'spontaneous order'. Such a society does not act like 'an organization under the direction of someone's will'. The main objection is that an attempt to correct the outcome of such a 'spontaneous order' would itself violate justice, because people would have to surrender part of their property, even tho it was not illicitly acquired.

This objection, however, is obscure and juggles with the different spheres of property again. Firstly, if we adopt the distinction between organization and spontaneous order --and why not disorder?--, it is by definition only an organization (a state, for instance) that can try to establish a just property distribution. If it succeeds, the outcome, that is, a just or less unjust distribution of property, is the result of an efficient 'organization'; if it does not succeed, this is 'because' the just distribution of property could not be the manageable outcome of a 'society'. Secondly, if surrendering part of one's property and acquisition which is not illicit refer to legal property, there is nothing 'spontaneous' about this property, and then the law simply defines what a person's property is, not only at this moment but also at the next one (and, unfortunately, it may be less then). Provided that justice is not simply a legal notion, both the 'nonillicit acquisition' and the 'surrendering' themselves could still be just or unjust. Yet, the establishment of a state of distributive, moral justice could not infringe upon what is justly owned. Of course, it may be that property is a legal concept in an organizational system and a cultural one in a 'society', but also this would leave untouched the question whether the nonillicit acquisition and the subsequent expropriation would be just or unjust. More importantly, it leaves untouched the question of what was acquired in the first place (an object independent of the relevant description? a share in it?). Finally, theorists are free to stipulatively define justice so that it designates a praiseworthy quality of people or their actions only, but this does in no way preclude us from passing a normative judgment on a whole society, even tho we would --again-- have to translate this judgment by using different words and by making reference to the individual members of such a society. For what spontaneously develops might not in all honesty be a prodigy of beauty, but could be a repulsive monstrosity instead.