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Creative Commons Attribution-NonCommerical-ShareAlike 4.0 International

Document Type

Book Chapter

Publication Date

2018

Editor(s)

Shyamkrishna Balganesh, Ted Sichelman & Henry E. Smith

Publisher

Cambridge University Press

Language

en-US

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 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 neoBlackstonian 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 of the critics, 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 conceptual or descriptive or normative disagreement? 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 even more important than getting right the precise content of these two sets of claims is understanding their relation: in particular, that the “social relations” claim is the fundamental platform of the analysis, generating in 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 (SR) and bundle of rights (BR) – is fundamentally distinct from a third set of points with which they are commonly entangled, regarding the dematerialization of the objects and interests of property. It is precisely the blurring together of what are three distinct lines of analysis – what we refer to here as (SR-)dethingification, (BR-)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 argue, is both too hasty and imprecise. It is 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 even three, fundamental points of contrast, each tracking one of the central, but distinct, lines of Hohfeldian analysis, namely: SRdethingification, dematerialization and disaggregation. It is too hasty because on our view, SRdethingification poses no problems and while dematerialization and disaggregation may indeed, if left unchecked, lead to troubling – albeit quite 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 the underlying method and structure of his analysis in a constructive fashion. And so the solution to disintegration, we suggest, is not the “rethingification” of property but, rather, to carry forward the method of Hohfeldian analysis in two constructive directions: a resourcespecific answer to the question of “what is property about?” and, in answer to “what does property consist of?”, an architectural analysis of the elemental entitlements that serve as the fundamental building blocks for property forms. Our aims in this article are three-fold. First, we seek to provide a somewhat novel distillation of the central insights of Hohfeldian analysis of property, and to use it to clarify the central fault lines and stakes of the contemporary debate in American property theory. Second, we set this analytical scheme into comparative-historical context, to draw from European traditions of property analysis insights about the resource-specific character of property entitlements that further enrich and develop our scheme. Finally, we seek to draw simultaneously on the tools of Hohfeldian analysis and the lessons of both the American and European debates, to chart two constructive ways forward for the legal-institutional analysis of property, as social relations regarding resources. The article is structured in three parts. Part I sets out our distinct view of the fundamental components and structure of Hohfeldian analysis. Part II then examines what Hohfeld has to teach Europe and vice versa. Part III points to a way forward with two constructive lessons, which respond to the egration facing Hohfcentral perils of disinteldian analysis.

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