Property and Disagreement

2011

The claim I wish to make here is that this “dominant paradigm” is really no explanatory model at all, but represents the absence of one.“Property is a bundle of rights” is little more than a slogan. The use of the word “slogan” is not intended to be merely polemical. By “slogan” I mean an expression that conjures up an image, but which does not represent any clear thesis or set of propositions. James E. Penner

SSRN Electronic Journal, 2000

Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page. This paper offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law-does the rule of law only include formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? Jeremy Waldron and Richard Epstein have recently defended each of these positions, respectively. By focusing on the nature of common law reasoning, I wish to question the form/substance dichotomy that frames this debate and show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common law reasoning and, as such, play a large role in shaping the substantive content of common law property rights. In other words, once property rights are understood as the result of a practice of reasoning that routinely invokes rule of law principles, the standard form/substance dichotomy is untenable. In short, there is no "substance" in the common law of property that is not already informed by "form." Understanding this has implications beyond the relationship between property law and the rule of law for it indicates an important defect in contemporary property theory more generally. My claim is that property theory has focused too much on the concept of, and justifications for, ownership and ignored the role that rule of law principles have played in shaping substantive property doctrine. Theories of ownership risk going astray if they seek to account for property doctrine without first appreciating the way that form influences substance. Moreover, theories of legal reasoning and justification risk going astray if they do not appreciate the role that rule of law principles play in providing important standards of legal justification and instead mistake these elements for either principles of political morality or references to broad policy considerations.

Michigan Law Review

This Article examines a characteristic of property entitlements fundamental to the structure of property systems that has received scant academic attention, a characteristic referred to as the mutual exclusivity principle. According to this principle, a property system does not allow for the existence of incompatible rights. Two people cannot separately be the owners of the same resource, for instance. By contrast, two people can each hold valid but contradictory contract rights to the resource. Although the existing property literature has stressed the “exclusive” nature of property, the various ways in which property is imagined to be exclusive, such as by conferring “rights to exclude,” fail to capture the essence of property as a distinct legal institution. Unlike these alternative conceptions of exclusiveness, the mutual exclusivity principle holds true across the range of different types of property entitlements, including not just fee simple ownership but also security intere...

Is property in some way basic to our moral lives? Many have thought so. For Aristotle, moral virtues, like liberality, presuppose some idea of property, for one can display liberality only with respect to what is one's own. For Kant, property is a requirement of freedom in the external world. For Locke, property, allocated according to principles of labour and desert, is basic to the very idea of justice that our political institutions are meant to secure. Others have denied that property is foundational in this way, suggesting rather that property is one strategy available to us in meeting the demands of our general theories of justice but is not itself morally basic. 1

2002

The notion of property rights has undergone fundamental change recently as a result of the commodification of natural resources such as water and biota. All property rights result in the conferral of three qualities or capacities, namely a management power, and ability to receive income or benefits, and an ability to sell or alienate the interest.

For much of the twentieth century, legal academics conceptualized property as a bundle of rights. But property theory today is deeply divided between theorists who focus on property’s ends, i.e., its reflection of values such as democracy or human flourishing, and those who focus on property’s means, i.e., its use of qualities such as modularity and exclusion to manage complexity in a cost-effective way. The bundle-of-rights conceptualization has been swept up into the controversy, becoming the particular target of means-focused theorists, who argue that the bundle conceptualization obscures critical features of the property system, most notably its use of strategies of exclusion, in rem rights, and indirectness. These theorists assert that, twentieth century wisdom notwithstanding, property is not a bundle of rights but rather is a law of things.Contrary to these theorists, this Article argues that the bundle-of-rights conceptualization remains useful both descriptively and normati...

The means by which property organizes human behavior and social life is the subject of profound and heated debate. On one side, information theorists emphasize that property works in rem, using standardized signals to tell all the world to keep off things owned by others. On the other side, progressive theorists emphasize property’s capacity to promote human flourishing, respect for human dignity, Aristotelian virtue, or democratic governance. The divide between these two schools of thought represents the most vital dispute in a quarter-century of property scholarship, but this Article claims that this divide is not adequately understood.Debates between informational and progressive scholars currently center on whether the right to exclude is fundamental to property law. By contrast, this Article suggests that academics’ singular focus on exclusion has obscured even deeper questions about property’s stability, its institutional mechanism for change, and its very status as a distinct...

Classical property law is not only losing economic relevance with the progressing dephysicalization of economic processes but is also increasingly perceived as a static field of private law, pursued by specialized lawyers working with rather inaccessible national concepts and dogmas that seem to have no significant relevance for the development of a digital economy. The mostly codification-driven comparative research on property law continues in the tradition of national property law codifications primarily addressing tangible objects. The research on property law should not restrict itself to this rather pragmatic approach, because in the end this arbitrarily delimits the concept of property law and reinforces the impression of classical property law only dealing with tangibles. Comparative property law should look beyond issues of codification and address the question of what is the essence of property law. Property law deals with the erga omnes effects of rights. It therefore not only addresses full-fledged property rights over movables or immovables but also covers partially absolute rights over these assets on the threshold to contract law. Property law also addresses absolute rights with regard to intangibles. This awareness should on one hand demand from any discussion on creating new (partially) absolute property rights to take notice of the state of the art of current (comparative) property law. It should on the other hand incite classical property lawyers to take part in these debates and to question the traditional concepts and principles in light of the new developments. Classical institutions of property law should be reconsidered from this point of view.

1982

In recent academic writing on the general problem of constitutional protection of property under the takings clause' and due process clauses, 2 a mode of analysis has emerged that is evidently different from the conventional analysis of constitutional property claims. In general terms, this new mode is characterized by an effort to analyze claims on an openly teleological and systematic basis. To be sure, this mode is not exclusively of recent origin. 3 But it is a discernible trend in the body of scholarship that discusses constitutional protection of property in the context of previously unfamiliar sorts of private economic interests. Charles Reich's famous paper, "The New Property, ' '4 is the wellspring for this phase of scholarship on constitutional property. Subsequent writings by Frank Michelman, 5 Joseph Sax, 6 and others 7 have contributed to the trend with respect both to procedural protection under the due process clause and to substantive protection through compensation. Most observers who have commented upon the development of this new mode of analysis have seen a radical discontinuity between its teleological

Teisė, 2022

The article looks at the possibility of to revise property regulation and property law doctrine. The author identifies the most important factors that may influence the evolution of property law and provides an assessment whether today's conditions can change the content of property law and whether they are doing it. The article further discusses changes in the objects of property, the model of economic ties, the motivation of owners and the possibilities of implementing property law.