Bridging the Gaps in Property Theory
| Date | 01 November 2014 |
| Published date | 01 November 2014 |
| DOI | http://doi.org/10.1111/1468-2230.12101 |
| Author | Adam J. MacLeod |
REVIEW ARTICLE
Bridging the Gaps in Property Theory
Adam J. MacLeod*
James Penner and Henry E. Smith (eds),Philosophical Foundations of Property Law,
Oxford: Oxford University Press, 2013, 369 & xxvii pp, hb £60.00.
Though several others can rightly be said to have done as much, no one has done
more to rehabilitate the idea of property as a meaningful normative concept than
James Penner and Henry Smith. That they have edited a collection together is
a substantial reason to read it. That the collection contains contributions from
many of the best property theorists is another. The introduction to the book sets
the ambitious goal of identifying what needs explaining in the ‘broad space that
lies between’ the philosophy of property and scholarship about particular legal
doctrines. For anyone interested in property theory, or who wants better to
understand property doctrines and institutions, this book repays a careful read.
Close examination exposes to view not one broad space in the property
literature but several. Indeed, perhaps the book’s most significant achievement is
to reveal how bifurcated property scholarship is today, along not one but several
fissures. The book contains so many rich and promising insights that it might
seem ungrateful to point out the gaps that it leaves unfilled. Yet many of the gaps
appear precisely because the insights open unexplored lines of inquiry more
clearly to view.
Related to the gap between theory and doctrine are several missing pieces in
the centre of our understanding about property. First is the gap between the
whole and the parts. Philosophers study property concepts; lawyers study prop-
erty rules. Too-exclusive a focus on concepts of property can obscure its
complexity, while too-exclusive a focus on the particulars can make property
appear to disintegrate. Call this the wood-trees gap.
Another gap in property knowledge concerns the reasons for property, and
the disparate approaches of those who ground property in a moral or pre-
political principle and those who think that property norms provide their own
intelligibility. This is the justification gap. Various ways of identifying property
norms themselves have given rise to what I call the rights gap, which is related
to the wood-trees gap. Oversimplified, the rights gap stands between theories
that deal with an abstract property right, identifying it as the essence or archetype
of property from which norms are derived, and those that examine particular
rights as conclusions of law. Finally, the supposed dichotomy between individual
owners, who act to satisfy personal preferences, and state actors, which regulate
and create property norms to achieve a collective good, results in an agency gap.
*Faulkner University.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(6) MLR 1009–1029
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
The essays in this book sharpen one’s focus on these gaps and suggest ways to
bridge them in future scholarship.
THE WOOD-TREES GAP
It would be difficult to overstate Hohfeld’s influence upon property scholarship.
His influence has been profound, but not entirely for the better. As more than
one contributor to this volume has pointed out, here and elsewhere, Hohfeld’s
account of rights and duties is useful for describing particular trees, but makes it
difficult to perceive the wood. Indeed, the conception of property as a contin-
gent and mutable set of jural relations has proven reductionist, leading to deep
scepticism of property’s nature. In their introduction, Penner and Smith quote
Alan Brudner’s assessment of the consensus view near the end of the last century
that ‘property is intelligible only as a social construct, as a perfectly malleable
category wholly at the service of collective goals’ (xv).1
This is not an argument for ignoring Hohfeld’s scheme of jural relations, only
a way to understand its limits. Hohfeld’s account was viewed throughout much
of the twentieth century as being all there is to know, and consequently property
was viewed as nothing more than aggregates of rights and duties – the now
(in)famous bundle of sticks. Many of the contributors to this book, especially the
so-called ‘new essentialists’,2have in previous writings done much to comple-
ment that reductionism with various accounts of the whole. As they have shown,
at least some property norms are not entirely reducible to the individuated jural
relations of which they are comprised, viewed after the fact and from the external
perspective of the legal scientist. The duty of self-exclusion is fully specified as a
relation between the non-owner and the thing. The right of alienability is a real
right because the moment after O conveys fee simple in Blackacre to A, A has
the same fee simple estate that O had before the conveyance.
Penner develops this last idea in his essay, ‘On the Very Idea of Transmissible
Rights’. A negotiable debt remains an obligation to pay even if the obligation is
owed to a different person than when the debt was incurred; it is a duty to pay
the creditor or any successor of the creditor. From this observation Penner argues
that the individuation of rights does no normative work in specifying the
relevant duty. The power of transfer is not a power to convey to A, plus a power
to convey to B, plus . . . Rather, it is ‘a power to transfer to someone’. The power
persists as potential recipients come into being and pass away, even as they come
into ownership and leave. The common law takes the view that the power is
impersonal in its subjects, that those who are liable to have their legal status
altered by its exercise are not determined. That is why presumptive heirs or
named beneficiaries in a will have no property, only the unrealised hope of
receiving something at the owner’s death (253–254).
1 Quoting A. Brudner, ‘Editor’s Introduction’ (1993) 6 Canadian Journal of Law & Jurisprudence 183,
184–185.
2 This is a name given to Penner, Smith, Merrill, Katz, Claeys and Mossoff by Amnon Lehavi: A.
Lehavi, The Construction of Property: Norms, Institutions, Challenges (Cambridge: CUP, 2013) 46–48.
Bridging the Gaps in Property Theory
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
1010 (2014) 77(6) MLR 1009–1029
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