A Theory of Property
85 Pages Posted: 3 Mar 2004 Last revised: 31 Jul 2009
Date Written: 2005
Property law has eluded both a consistent definition and a unified conceptual framework. Instrumentalists insist that property is nothing more than default contract rules. Conceptualists proclaim the primacy of in rem conceptualization and of specially privileged rights such as the rights to exclude. Others think of property as an infinitely malleable bundle of sticks.
We demonstrate that any comprehensive property theory must address four legal questions: (1) What things are protected by property law; (2) vis-a-vis whom; (3) with what rights; and (4) enforced by what mechanism. Then, we introduce a value-oriented theory to show how property law answers these questions by recognizing and helping to create stable relationships between persons and assets, allowing owners to extract otherwise unavailable utility.
Our approach illuminates recent property developments, and demonstrates the need for reform. Additionally, we demonstrate the need for property occasionally to yield to other legal fields like secured transactions.
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