ABSTRACT
In the hundred years since Hohfeld published his two ‘Fundamental Legal Conceptions’ articles, the ‘bundle-of-rights’ view of property associated with his work has come to enjoy the status of conventional wisdom in American legal scholarship. Seen as a corrective to lay conceptions and a predecessor ‘Blackstonian’ view of property as the ‘sole and despotic dominion’ of an ‘owner’ over a thing, the central insight of Hohfeldian analysis is commonly taken to be that property is not a single ‘thing’ but rather a ‘bundle of rights’ with respect to things and persons. In recent years, however, this Hohfeldian view has come under increasing attack by critics calling to replace the bundle-of-rights picture with a return to lay or neo-Blackstonian conceptions of property, as the ‘right to a thing’, ‘thing-ownership’ or, simply, ‘the law of things’. Yet what precisely is at stake in this dispute has remained somewhat nebulous. In the words of one critic, although all sides to the debate ‘agree that the thing versus ad hoc bundle contrast is significant, it is surprisingly difficult to specify what the contrast really means’. Do the critics really mean to claim that property, as a legal concept, should be taken to refer to the ‘thing’ or object itself, rather than to legal rights pertaining to it? Or is it rather that the legal rights should be taken to pertain to a person-thing relation, rather than to one between persons? Or is it that the rights at issue should be seen as one or a few rather than many? Or, if many, then necessarily ‘unified’ rather than disaggregated? Or, whether single or multiple, “absolute” rather than ‘qualified’? And, finally, is the dispute – with respect to any or all of these questions – a matter of descriptive or normative or conceptual disagreement? …
di Robilant, Anna and Syed, Talha, Property’s Building Blocks (January 23, 2017) in Henry Smith et al, eds, The Legacy of Wesley Hohfeld (Cambridge 2020).
First posted 2020-12-05 07:17:10
Leave a Reply