S. Paterson, Corporate Reorganization Law and Forces of Change, Oxford University Press, 2020, 320 pp, hb £80.00
| Published date | 01 September 2022 |
| Author | Kristin Zwieten |
| Date | 01 September 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12727 |
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REVIEWS
James Penner,Property Rights: A Re-Examination, Oxford, Oxford University
Press, 2020, 256 pp, £84.00
Twenty years ago,James Penner challenged us to rethink then-settled notions
of property, like the ‘bundle of rights’ metaphor, and whether property truly
has a ‘core’. These intellectual challenges have resonated throughout property
scholarship ever since. In his recent book, Property Rights: A Re-Examination
(2020), he does it again,reecting on the past two decades of property schol-
arship, re-examining some of his own previous stands, and outlining a new set
of challenges for private law scholars moving forward.
In this review, I give a brief account of the key moves in Penner’s analysis. I
think it is helpful to think about the book along three key intellectual strands.
The rst strand (which comes forward primarily in Parts 1 and 2 of the book),
is about the structure of property rights and property institutions. This strand
includes thoughts regarding what property is not (not a bundle of rights, not a
nominal notion of jural relations), and what it is.
Consistent with his previous work, Penner reiterates that property is not a
bundle of rights. It is also not a nominal collection of jural relations. Property
also cannot, according to Penner, be dened or explained in terms of pos-
session. Possession, argues Penner, is a ‘working legal concept’ which (maybe,
sometimes) helps us think through our property-intuitions or explain certain
situations of acquisition (think, adverse possession). But, importantly, it is im-
possible to give it any coherent analytical denition.
So what is the structure property, according to Penner? The ‘tripartite struc-
ture of property’, as the name suggests, consists essentially of three pillars or
key organising features on which property rests. The rst, and possibly central,
is the right to exclude. The second is the power to licence (an activity that
would otherwise, absent the licence, be considered trespass). The third is the
power to transfer title. But simply having these pillars is not enough, they must
be protected. The three pillar s are, in tur n, protected by norms which prohibit
wrongs against property. They do so, according to Penner, by guiding people
not to interfere with others’ core rights. Penner calls these the ‘Basic Prop-
erty Norms’. Examples of such protecting-norms include the rules governing
trespass, conversion,negligent damage, nuisance and so on.
Taken together,the following picture of property emerges: a core three-pillar
structure (based on exclusion, along with the power to licence, and the power
to transfer), protected by norms that prohibit wrongs against these pillars.
In addition to the Basic Property Norms, Penner also lays out the contours
of the Basic Usufructuary Norm, which guides people not to interfere with the
lawful use of things. The key dierence between the Property Norm and the
© 2022 The Author.The Modern Law Review © 2022 The Modern Law Review Limited. (2022) 85(5) MLR 1289–1299
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