Shane Glackin, ‘Back to Bundles: Deflating Property Rights, Again’

Following Wesley Hohfeld’s pioneering analyses, which demonstrated that the “folk” concept of ownership conflated a variety of distinct legal relations, a deflationary “bundle theory” regarding those relations as essentially unconnected held sway for much of the subsequent century. In recent decades, this theory has been thought too diffuse; it seems counterintuitive to insist, for instance, that rights of possession and alienation over a property are associated only contingently. Accordingly, scholars such as James Penner and James Harris have advanced theories that revive the concept of ownership, identifying some instances of property as “paradigmatic,” and regarding others as conceptually subsidiary. I propose a new interpretation of the bundle theory, based on David Lewis’s idea of “Humean supervenience” among physical particles. I critically examine the major antibundle positions, arguing that their criticisms result from confusion about the claims of the bundle theory, which remains the best account of property rights available.

Shane Nicholas Glackin, BACK TO BUNDLES: DEFLATING PROPERTY RIGHTS, AGAIN. Legal Theory / FirstView Article pp 1-24. DOI: Published online: 4 February 2014.

First posted 2014-02-06 15:47:06

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