A Life Estate Conception of Property
USC Law School, Olin Working Paper No. 99-15
160 Pages Posted: 15 Sep 1999
Date Written: August 1999
The dominant conception of ownership in Anglo-American law ever since Blackstone, at least, has been the fee simple absolute. Among the incidents of ownership in this absolute conception is the jus abutendi or right to waste. A life estate conception of property would abrogate this right to waste while preserving the attractive features of the fee simple absolute, including in particular alienability and freedom of testamentary disposition. This article argues that liberal society has always disapproved of waste, in each of two senses -- dissipatory use or destruction and non-urgent use. The evolution of forms of ownership towards an absolute model was in fact motivated in part by a desire to curtail waste in its dissipatory sense. As value has moved away from land and into intangible repositories, paradigmatically money, the problem of non-urgent waste has become more pressing. Whereas prior scholars have not been able to conceive of a practical general law against waste, the tax system can bring about just this result, through a progressive consumption tax. Such a tax makes the wealthy fiduciaries of society's capital stock, now seen as the main element of social property. The article is presented as an extended illustration of a political and interpretive argument, in the spirit of John Rawls.
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