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
26 Pages Posted: 2 Mar 2017 Last revised: 15 Sep 2017
Date Written: February 28, 2017
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: Suggested Citation