Hohfeld and the Theory of in Rem Rights: An Attempted Mediation

The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries, Shyam Balganesh, Ted Sichelman & Henry Smith eds., Cambridge University Press, Forthcoming 2018

George Mason Legal Studies Research Paper No. LS 17-07

26 Pages Posted: 2 Mar 2017 Last revised: 15 Sep 2017

Christopher M. Newman

George Mason University - Antonin Scalia Law School, Faculty

Date Written: February 28, 2017

Abstract

Wesley Hohfeld’s contributions to analytical jurisprudence are often viewed — approvingly or otherwise — as having contributed to the disintegration of traditional concepts defining our understanding of property. Most strikingly, his 1917 treatment of rights in rem appears to insist that any description of property in terms of a relationship between an owner and an owned thing is analytically fallacious. In this essay, I seek to explain why Hohfeld’s approach fails to appreciate and account for the cognitive and normative utility of the in rem/in personam distinction, and suggest a way of reconciling the traditional understanding of those terms with Hohfeld’s analytical vocabulary.

Keywords: Wesley Hohfeld, in rem, in personam, James Penner, property theory

JEL Classification: K11

Suggested Citation

Newman, Christopher M., Hohfeld and the Theory of in Rem Rights: An Attempted Mediation (February 28, 2017). The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries, Shyam Balganesh, Ted Sichelman & Henry Smith eds., Cambridge University Press, Forthcoming 2018; George Mason Legal Studies Research Paper No. LS 17-07. Available at SSRN: https://ssrn.com/abstract=2925392

Christopher M. Newman (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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