Two Suggestions for Conceptual Property Theory

Post by Eric Claeys

In contemporary legal and philosophical theory, three perspectives loom large. For a century and more, conventional wisdom held that the best way to conceive of property is as a bundle of rights. In the nineties and the “oughts,” bundle views were questioned by scholars arguing that exclusion is crucial to property. These exclusion views have been developed on conceptual grounds, by James Harris and James Penner, and on economic grounds, by Thomas Merrill and Henry Smith. More recently, scholars who subscribe to Progressive property views have entered the fray as well.

In some of my previous writings, I have tried to offer an alternative to these three perspectives. As conceptual debates matured, however, I came to see that I had been explaining that alternative in terminology not familiar enough to many property scholars and conceptual philosophers. Over the last few years, I’ve tried to work out my own views in more familiar analytical terminology. In the process, I’ve come to realize that all along I’ve been trying to make two conceptual suggestions. In two forthcoming works, I explain both suggestions.

Here’s the first suggestion. In practice, property seems to operate relying not on one but rather on two concepts. (Hugh Breakey deserves credit for this basic insight, though he and I describe the boundaries of the concepts differently.) In one usage, the word “property” refers to a right in an ownable resource that vests in the proprietor broad authority to manage the resource. That is the concept on which exclusion views focus; in the rest of this post, I’ll refer to that concept as a concept of “ownership.” In another usage, “property” covers a wide range of legal interests in ownable resources. This field covers not only rights of ownership but also concurrent estates, servitudes, mortgages, and a wide range of other nonpossessory interests strong enough to be called “rights.”

Now for the second suggestion. To understand how property concepts operate, scholars may want to study them as institutional artifacts. An “artifact” consists of an object made (by its makers) and used (by its likely users) to satisfy some distinct goal associated with the artifact. An “institutional” artifact performs its goal by serving as a locus for coordinated interpersonal behavior. There now exists a thriving field of “social ontology”, studying the philosophy of artifacts and social objects; in recent work on jurisprudence, scholars have started to apply lessons from social ontology to law and legal concepts. Property scholars may want to study property concepts similarly.

I am proposing both of these suggestions in forthcoming companion articles. The first article is “Use and the Function of Property,” forthcoming in the American Journal of Jurisprudence. That article focuses primarily on the metaphysics and the analytical methods that underlie the suggestions I’m offering here. Those metaphysics and methods differ strikingly from the metaphysics and methods that underlie bundle views. Accordingly, “Use and the Function of Property” uses bundle views as foils to introduce and situate the social ontology views I hope to introduce.

The second article is “Property, Concepts, and Functions,” forthcoming in the Boston College Law Review. This article describes the implications of my suggestions for contemporary conceptual debates—about bundles, exclusion, and Progressive property. Recent scholarship seems to pit exclusion views against bundle and Progressive views. This contrast seems badly framed because different views are focusing on different concepts. Exclusion theorists seem most interested in studying the concept of ownership, while bundle and Progressive theorists seem more interested in the more capacious concept for property rights. In addition, these debates seem overwrought. Many of the differences between the different views can be explained away once one realizes that property law relies on complementary but separate concepts. And most remaining differences can be accounted for by the artifact functions that give property concepts their structure. “Property, Concepts, and Functions” illustrates with several prominent nonpossessory rights and concurrent estates: water rights, easements, running covenants, mortgages, and cotenancy interests.

Although these articles offer my views on property concepts more clearly than my earlier works did, they also leave me with more questions than they answer. In that spirit, I’d welcome any reactions or criticisms NPL readers may care to share.

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