Modularity, Modernist Property, and the Modern Architecture of Property

Abstract

Property law treats property as things, or as he often says, modules—objects whose boundaries people may see and understand as belonging to themselves or others, without having to know the details of their interior interrelationships. Such “things” are protected by exclusion rules with some more fine-tuned governance rules for boundary issues.

Smith’s theory is a welcome relief from the unproductive theory of property as “bundles of sticks,” but it does raise some questions. Some are these: can property “modules” really be combined like LEGOs, or are some combinations messier, as in unsuccessful corporate takeovers? What, actually, is a “thing”—is it something natural, or is it (also) something like a farm or a condominium, an artifact of property law itself? How stable are the relationships between exclusion rules and governance rules? Can the information-economizing theory of property take more lessons from law and economics? Finally, aside from economizing on information, should a theory of property also
leverage other purposes of property, such as the enhancement of effort and wealth, autonomy, and democratic self-government?

Keywords: property, modularity, information costs, exclusion vs. governance, property and democracy