Harvard Law School’s Private Law Workshop: Christopher Newman, Hohfeld and the Theory of In Rem Rights: An Attempted Reconciliation

Post by Patrick Goold

Few questions have received more attention in law than the question “What is Property?” Is an in rem right a right over a thing, as the traditional (and perhaps resurgent) view holds? Or is the term “right in rem” an outmoded reference to a bundle of jural relations existing between individuals (as Hohfeld argued almost a century ago)? Is there a way to reconcile these two competing theories—for property to be both a right over a thing and bundle of rights? At this week’s HLS Private Law Workshop, Christopher Newman presented a work-in-progress in which he attempted a reconciliation of these apparently conflicting understandings of in rem rights.

Newman suspects that both the “bundle of rights” theory and the “property as things” theory can simultaneously be good descriptions of in rem rights so long as we understand these theories as operating on different levels. On a higher level of abstraction, in rem rights are rights to control things. This theory has remarkable every-day functionality. When someone finds a car in a parking lot, she immediately knows the car is a thing; a thing she does not own; and a thing which she probably should not drive away. She does not need to know anything about the car’s owner or their relationship in order to understand her duty. However, sometimes a much more granular understanding of property is necessary. When, for example, two individuals come to court arguing about who can be held liable for interfering with an easement, the judge may need to investigate further the exact nature of legal relationships between the parties in order to resolve their dispute.  The interesting part of Newman’s theory is the recognition that these two theories may not be mutually exclusive. Much like an atom that can be broken down into tiny particles, an in rem right can be expressed as a right to a thing, which when investigated further, breaks down into a bundle of relations.  

Perhaps therefore we can have our cake and eat it too: property can be both the law of things and the bundle of sticks.