Using Things, Defining Property
Property Theory, James Penner & Michael Otsuka, eds., Cambridge University Press, 2018 Forthcoming
41 Pages Posted: 20 Sep 2017 Last revised: 28 Sep 2017
Date Written: September 18, 2017
Accounts of property tend to define it as a right to exclude and treat use-privileges as incidental by-products of that right. This paper sketches a different approach, one that treats recognition of use-privileges to things as prior and then asks what sorts of rights might be justified in their support. I attempt to defend this approach against the analytical and doctrinal arguments made by Simon Douglas & Ben McFarlane in their paper Defining Property Rights. As the concept of “use” depends upon that of “thing,” I also attempt to shore up the reliance on “things” as central to the concept of property. In this vein, I argue for a concept of “thing” that encompasses any discrete and intelligible nexus of human activity with respect to which human purposes may come into conflict, arguing that this renders intellectual property rights straightforwardly intelligible as usufructary interests in things. I also offer a response to Christopher Essert’s argument in Property in Licenses and the Law of Things to the effect that property should jettison any reliance on things and simply view property rights as aimed at excluding others from classes of activity. Here my contention is that the identification of some discrete “thing” as an object of property provides a necessary focal point for the concepts of use and interest that are both functionally and normatively essential to property as a human institution.
Keywords: property theory, right to exclude, use-privilege, use interest, Hohfeld, thing, usufructary rights, Douglas & McFarlane, Essert, intellectual property, copyright
JEL Classification: K11
Suggested Citation: Suggested Citation