Use and the Function of Property
American Journal of Jurisprudence, Vol. 60, Iss. 2 (forthcoming 2018)
61 Pages Posted: 9 Mar 2014 Last revised: 30 Aug 2018
Date Written: August 27, 2018
Many scholars assume that property concepts contribute very little to the way in which people think about rights in resources. Yet these assumed views do not accord with what we know about clocks, keys, fiat currency, and other artifacts. Artifacts are intention-dependent objects. The distinct ways in which different artifacts satisfy those intentions—their artifact functions—give artifacts more structure and coherence than is commonly believed.
Those lessons come from scholarship on the philosophy of artifacts, and this Article uses them to study property concepts. This Article studies three concepts of property prominent in Anglo-American property law. All three concepts perform a common artifact function, facilitating the beneficial use of ownable resources. In the concepts and this function, “use” refers to an interest people have in deploying resources for rational well-being and consistent with others’ correlative use-interests. This Article supplies accounts of the intensions for the three concepts introduced. The Article also shows that these concepts extend coherently to property doctrines that are believed to confound encompassing concepts of property—easements, licenses, covenants running with the land, and the interests that beneficiaries hold in wealth-management trusts fall within the extensions for the appropriate concepts.
Keywords: absolute ownership, exclusion, family resemblance, fee simple, Finnis, focal meaning, Harris, Hohfeld, Honoré, necessary and sufficient, nondefectiveness, Penner, practical reason, Raz, right to exclude, Searle
JEL Classification: K11
Suggested Citation: Suggested Citation