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Shyamkrishna Balganesh, Ted M. Sichelman, and Henry E. Smith




Boston University School of Law




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 standardly 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.

The crux of the problem, we suggest, is a fundamental mischaracterization of the Hohfeldian analysis of property—by both critics and defenders. The “bundle of rights” label obscures from view a distinct—and more fundamental—dimension of Hohfeldian analysis, namely that property is a social relation. And as or more important than getting right the precise content of each of these claims is understanding their inter-connection: the “social relations” claim is the fundamental platform of the analysis, generating in its turn the “bundle of rights” claim as a conclusion. Indeed, if a short moniker were wanted for Hohfeldian analysis, much preferable to the “bundle of rights” would be the “relational” conception of property.

Moreover, each of these components of Hohfeldian analysis—social relations and bundle of rights—is fundamentally distinct from a third set of points with which they are commonly fused, concerning the dematerialization of the objects and interests of property. It is the blurring of what are three distinct lines of analysis—what we may call dephysicalization, disaggregation and dematerialization—that has led many to the conclusion that Hohfeldian analysis results in the “disintegration” of property, rendering it no longer a distinct concept or field of law. An outcome embraced by some (neo-Hohfeldians) and decried by others (neo-Blackstonians).

This conclusion, we believe, is both too hasty and imprecise. Imprecise because it fails to locate the contest between Hohfeldian and neo-Blackstonian conceptions of property as pivoting around not one, but at least two and perhaps three, points of contrast, tracking each of the central but distinct lines of Hohfeldian analysis: dephysicalization, disaggregation and dematerialization. It is too hasty because the dephysicalization of property, as a social relation, poses no problems; and while disaggregation and dematerialization may indeed lead to troubling—if very distinct—forms of disintegration, the fault lies less with the specific content of Hohfeld’s claims than with a failure, post-Hohfeld, to follow through on his underlying method and structure of analysis in a constructive fashion. And so the solution to disintegration, we urge, is not a “rethingification” of property but rather its “reintegration”—by carrying forward the method of Hohfeldian analysis in two constructive directions: (a) a resource-specific answer to the question of “what is property about?” and (b) in answer to “what does property consist of?” an architectural analysis of the basic entitlements that serve as the fundamental building blocks of all property forms.

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