The Structure of Property Law by Ben McFarlane
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00772_2.x |
| Published date | 01 September 2009 |
| Date | 01 September 2009 |
| Author | Andreas Rahmatian |
Ben McFarlane,The Structure of Property Law,Oxford and Portland, Oregon:
Hart Publishing, 2008, 965 pp, pb d28.00.
McFarlane’s voluminous bookThe Structure of Property Law presents the area of
propertyand trust law in a new perspective, building his approach on new theo-
retical foundations. These foundations are rather problematic, however, both in
their content and their method of presentation.
It might help to contrast an orthodox theory of property with McFarlane’s
quite di¡erent conception. In the orthodox view, property rights are rights
against persons in relation to things.This de¢nition contains two aspects: ¢rst, a
socio-psychological and economic component, being the e¡ects of the power
which property rights can confer over other persons by virtue of giving rights
in relation to resources, tangible (eg land, water, means of production) and
notional (eg intellectual property) alike. This aspect is not furtherdiscussed here.
The second compo nent, which is relevant here, is the legal aspect: a property right
or real right (ius in rem) is an abstract concept created by law which relates to an
object. This object can exist in the physical world (land, chattels) or it can be an
abstract legal concept itself (eg a copyright).That property object is commonly
referred to as ‘thing’ or ‘res’ or (imprecisely but frequently) ‘property’.The sub-
stance of property rights (often referred to as a‘bundle of rights’) has an internal
and external aspect as regards the content and extent of the rights. The internal
aspect is re£ected in the powers over a thing that these real rights entail (‘right to
use’), whereby ownership confers the widest possible power (rights in security
would be real rights with more restricted powers).The external aspect of the real
right materialises in the ‘right to exclude’ everybodyexcept the right holder from
the object of the real right in accordance with the typ e of the real right in question
(ownership, mortgage etc): a real right ‘binds the world’. Apeculiarity of English
law, as opposed to Roman law-based systems, is the fact that real right s, especial ly
ownership, can be divided into legal and equitable real rights. In the vast majority
of cases, equitable proprietary rights arise under a trust. Legal and equitable
property rights are real rights of a di¡erent quality in relation to the same prop-
erty-object. Both types are, however, real rights because they eventually grant
exclusive power over the thing in question (in Equity, see Saunders vVa u t i e r
(1841) 4 Beav 115), and they are enforceable against everyone in principle.
McFarlane does not give a full de¢nition of property rights, but he does take
issue with some of the de¢nitional elements of the orthodox account. In his view,
property rights only relate to physical objects: ‘A right can onlyqualify as a prop-
erty right if it relates to the use of a thing: an object that can be physically located’
(132). He argues there are no property rights in company shares either (136). It is
hard to understand how anyone in the 21
st
century can question that there are
property rights in intangibles ^ although it is true that such rights mayoccasion-
ally need rei¢cation especially for transfer purposes, forexample debts rei¢ed in
the formalisedpaper of a negotiable instrument to ensure practically unassailable
transferability (compare Bill of ExchangeAct 1882, s 29). And how can the pro-
prietary quality of intellectual property rights ^ among the economically most
important assets in the modern world ^ be ignored? The decision to exclude
Reviews
877
r2009 The Authors. Journal Compilationr20 09 The Modern LawReview Limited.
(2009) 72(5) 867^881
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