Property Rights: A Re-Examination

Ranging over a host of issues, Property Rights: A Re-Examination pinpoints and addresses a number of theoretical problems at the heart of property theory. Part 1 reconsiders and refutes the bundle of rights picture of property and the related nominalist theories of property, showing that ownership reflects a tripartite structure of title, the right to immediate, exclusive, possession, and the power to licence what would otherwise be a trespass, and to transfer ownership. Part 2 explores in detail the Hohfeldian theory of jural relations, in particular liberties and powers and Hohfeld’s concept of ‘multital’ jural relations, and shows that this theory fails to illuminate the nature of property rights, and indeed obscures much that it is vital to understand about them. Part 3 considers the form and justification of property rights, beginning with the relation an owner’s liberty to use her property and her ‘right to exclude’, with particular reference to the tort of nuisance. Next up for consideration is the Kantian theory of property rights, the deficiencies of which lead us to understand that the only natural right to things is a form of use- or usufructory-right. Part 3 concludes by addressing the ever-vexed question of property rights in land.

The Transmissibility of Rights and the Power to Transfer Title

This chapter explains the concept of transmissibility of rights and the power to transfer title to property. The chapter discusses Hohfeld’s adoption of the extinction–creation model of transmissibility and the notion of identity and sameness as it applies to norms. It shows why conceiving of transfer as a kind of ‘directional abandonment’ is incorrect. The chapter concludes that nothing that is known about property rights or the law of property is illuminated by the Hohfeldian analysis of jural relations; indeed many aspects of property law are obscured by it.

Multital Jural Relations

This chapter advances a number of criticisms of Hohfeld’s ‘multital’ analysis of rights in rem. The chapter shows: (1) that Hohfeld confuses the connections between rights and duties, in particular rights in rem and general and special rights, and general duties; (2) that the claim that the general norm not to interfere with the property of others is not a public law duty, as some, relying upon Hohfeld, have claimed; (3) that the duty of care in negligence law cannot be squared with Hohfeldian analysis; and (4), that it individuates duties incorrectly.

The Problems with Powers

This chapter looks at the question of how powers fit, or fail to fit, into the Hohfeldian scheme of jural relations. It points out the following deficiencies in Hohfeld’s theory of legal powers: it does not properly relate powers to the operations of law; (2) powers do not relate individuals under Hohfeld’s scheme of jural relations, but relate individual power-holders to jural relations; and (3) Hohfeld’s scheme cannot explain the interdependence of some Hohfeldian powers, like the Hohfeldian powers to transfer title to property. The chapter also refutes Steiner’s claim that Hohfeld’s analysis shows that there are no unwaivable rights.

Hohfeldian Liberties

This chapter examines the bilaterality, or bilateral structure, of Hohfeldian jural relations, and Hohfeld’s ‘disambiguation project’, that is, his project to ensure that the ambiguous term ‘right’ can be revealed to show that it covers four different sorts of ‘right’: right–duty, liberty–no right, power–liability, and immunity–disability. Consequently, according to Hohfeld, there being a right is necessary and sufficient to there being a duty and vice versa. The chapter discusses how this disambiguation of the term assists in legal, particularly judicial, reasoning. It then criticizes Hohfeld’s characterization of liberties, in particular showing that Hohfeld mischaracterized those areas of human conduct not regulated by law or morality.

Two Nominalisms

This chapter considers two versions of property ‘nominalism’, each of which claims that the sort of conceptualization of property offered in Chapter 1 is flawed; nominalists deny the normative ‘reality’ or ‘efficacy’ of legal concepts such as ‘title’ or ‘fee simple’, claiming instead that all the normative, that is, legal, action takes place with respect to more basic (e.g. Hohfeldian) jural relations. In reply it is argued that any attempt to reduce abstract concepts like ‘title’ to jural relations amongst individuals would ensure that we suffer a loss of understanding, and that this will hold true of any actual ‘Hohfeldian’ reduction of legal concepts to individual Hohfeldian jural relations. This chapter also sets out the principle of normativity, ‘The Guidance Function Principle of Norms’.

HOHFELD VS. THE LEGAL REALISTS

ABSTRACT2018 marked the centenary of Wesley Hohfeld's untimely passing. Curiously, in recent years quite a few legal historians and philosophers have identified him as a Legal Realist. This article argues that Hohfeld was no such thing, that his work need not be understood in such lights either, and that he in fact made a smaller contribution to jurisprudence than is generally believed. He has nothing to do with theories of official decision-making that identify, among other things, “extra-legal” factors as the real drivers of judicial decision-making, nor must his schema of jural relations advance a “Realist” political agenda. Distinguishing Hohfeld from the Realists will help to correct some misunderstandings about his work and point to its utility in many more contexts than a Realist reading of it allows.

General and Particular Jural Relations

A central problem of law is the gap between rules of conduct and reasons for action or decision. From the point of view of a lawmaker, it is often best that those who act under law follow relatively determinate rules that give content to rights, privileges, power, and immunities. Form the point of view of individual actors, and often of judges, reasons for action may not perfectly track the prescriptions of the governing rules. The question addressed here is, from which perspective did Hohfeld view rights, privileges, powers, and immunities?