Property, Concepts, and Functions
71 Pages Posted: 12 Mar 2018 Last revised: 30 Jan 2019
Date Written: March 10, 2018
This article makes two suggestions for ongoing debates about property concepts. First, these debates have focused too much on concepts for ownership; they have neglected concepts that cover property rights weaker than rights of ownership but still robust enough to constitute rights in relation to ownable resources. Second, these same debates have neglected the roles that artifact functions might play in property concepts. Property rights are artifacts, and functions play crucial roles in artifacts and the concepts that represent them. The Article confirms both suggestions via a close study of one particular property concept. That concept is prominent in Anglo-American property common law. In that concept’s focal sense, a property right refers to: an immunized and in rem claim-right; given institutional status in law and social morality; in relation to a separable resource; to facilitate the beneficial use of that resource and other resources commonly proximate to it. This concept gets its structure from a function, the imperative that property rights be structured to serve different people’s correlative interests in using resources for rational well-being. This concept explains why the field of property rights covers not only rights of sole ownership but also nonpossessory rights and rights in concurrent estates. To illustrate, the Article studies: legal interests in tenancies in common; easements; revocable licenses; mortgages; covenants running with the land; riparian rights; and appropriative rights and appurtenant ditch easements.
Keywords: bundle of rights, exclusion, Finnis, Progressive property, Raz, right to exclude
JEL Classification: K11
Suggested Citation: Suggested Citation