Degrees of Property
75 Pages Posted: 9 Jan 2011 Last revised: 21 Feb 2011
Date Written: January 1, 2011
Navigating a way through a complex idea such as property can be tricky. What guides do we have? Jeremy Bentham showed a way by positing that property is rights in relation to things, not the things themselves. But the ensuing “dematerialization” or “dephysicalization” of property has left courts, property theorists, and students feeling disorientated. This Article suggests that lawyers in fact navigate their way through property’s complexity guided by a materialist archetype of property, even where the thing in question has no material existence at all. The argument contradicts a powerful vein of mainstream scholarship which begins with Bentham.
The supporting evidence indicates that lawyers are also guided by a second tool: the perception that property has varying degrees of strength. This forms the basis of a further argument. Scholars and courts say that property is not “monolithic”, but leave their assertions under-developed. The argument made here is that the very structure of property is not monolithic because of the way property’s strength varies in degrees. A large and unnoticed body of evidence to this effect is used to give what appears to be the first fully developed account of its kind.
The result is to put property analysis on a footing which enables explanations of the whole of the legal concept of property to be offered. Bentham’s way of understanding property instead prohibits all evidence of things as property and property as things, thus disabling anyone from offering a full and robust account of property as it is. The Article’s findings impact on property jurisprudence, the workings of the courts and on legal education.
Keywords: Property, strong and weak property, dematerialisation, dephysicalisation, bundle of rights, tangibles, intangibles, statutory entitlements, monolithic property, Bentham, Hohfeld, Honoré, C.B. Macpherson, Thomas Grey, Kevin and Susan Gray, J.W. Harris, United States, England, Australia
JEL Classification: K11
Suggested Citation: Suggested Citation