Property's Building Blocks
Henry Smith et. al, eds, The Legacy of Wesley Hohfeld (Cambridge 2020)
30 Pages Posted: 5 Dec 2020 Last revised: 11 Dec 2020
Date Written: January 23, 2017
In the hundred years since Hohfeld published his two “Fundamental Legal Conceptions” articles, the “bundle-of-rights” view of property associated with his work has come to enjoy the status of conventional wisdom in American legal scholarship. Seen as a corrective to lay conceptions and a predecessor “Blackstonian” view of property as the “sole and despotic dominion” of an “owner” over a thing, the central insight of Hohfeldian analysis is commonly taken to be that property is not a single “thing” but rather a “bundle of rights” with respect to things and persons. In recent years, however, this Hohfeldian view has come under increasing attack by critics calling to replace the bundle-of-rights picture with a return to lay or neo-Blackstonian conceptions of property, as the “right to a thing,” “thing-ownership” or, simply, “the law of things.” Yet what precisely is at stake in this dispute has remained somewhat nebulous. In the words of one critic, although all sides to the debate “agree that the thing versus ad hoc bundle contrast is significant, it is surprisingly difficult to specify what the contrast really means.” Do the critics really mean to claim that property, as a legal concept, should be taken to refer to the “thing” or object itself, rather than to legal rights pertaining to it? Or is it rather that the legal rights should be taken to pertain to a person-thing relation, rather than to one between persons? Or is it that the rights at issue should be seen as one or a few rather than many? Or, if many, then necessarily “unified” rather than disaggregated? Or, whether single or multiple, “absolute” rather than “qualified”? And, finally, is the dispute — with respect to any or all of these questions — a matter of descriptive or normative or conceptual disagreement?
The crux of the problem, we suggest, is a fundamental mischaracterization of the Hohfeldian analysis of property—by both critics and defenders. The “bundle of rights” label obscures from view a distinct — and more fundamental — dimension of Hohfeldian analysis, namely that property is a social relation. And as or more important than getting right the precise content of each of these claims is understanding their inter-connection: the “social relations” claim is the fundamental platform of the analysis, generating in its turn the “bundle of rights” claim as a conclusion. Indeed, if a short moniker were wanted for Hohfeldian analysis, much preferable to the “bundle of rights” would be the “relational” conception of property.
Failing fully to absorb the relational character of the Hohfeldian conception of property has led many to the conclusion that Hohfeldian analysis results in the “disintegration” of property, rendering it no longer a distinct concept or field of law — an outcome embraced by some (neo-Hohfeldians) and decried by others (neo-Blackstonians). This conclusion is both too hasty and imprecise. Imprecise because it fails to locate the contest between Hohfeldian and neo-Blackstonian conceptions of property as pivoting around not one, but at least two and perhaps three, points of contrast, each tracking a central but distinct line of Hohfeldian analysis. Hasty because while disintegration is to be decried, the apt solution is not a “rethingification” of property. Rather, its “reintegration” by carrying forward the method of Hohfeldian analysis in two constructive directions: (1) a resource-specific answer to the question of “what is property about?” and (2) in answer to “what does property consist of?” an architectural analysis of the basic entitlements that serve as the fundamental building blocks of all property forms.
Keywords: Property, Private Law, Legal Theory, Hohfeld
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