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The Idea of Property
By arlene | May 8, 2008
If one is to use Hohfeld’s vocabulary to elaborate the sophisticated conception of property, it will help to conjoin it with an analysis of ownership suggested by Honoré. He sought to specify the standard “incidents” of ownership common to Western legal systems. These incidents are jointly sufficient, though not individually necessary, for ownership. Honoré’s list of incidents, slightly modified, includes the claim-rights to possess, use, manage, and receive income; the powers to transfer, waive, exclude, and abandon; the liberties to consume or destroy; immunity from expropriation; the duty not to use harmfully; and liability for execution to satisfy a court judgment. If a person has all of these incidents, or most of them, with respect to a certain thing, then he or she owns it. Honoré’s incidents are inspired by, but not identical with, Hohfeld’s conceptions. The former are more specific than the latter since they indicate particular actions or events — to use, to exclude, to be expropriated — with respect to things.
The idea of property — or, if you prefer, the sophisticated or legal conception of property — involves a constellation of Hohfeldian elements, correlatives, and opposites; a specification of standard incidents of ownership and other related but less powerful interests; and a catalog of “things” (tangible and intangible) that are the subjects of these incidents. Hohfeld’s conceptions are normative modalities. In the more specific form of Honoré’s incidents, these are the relations that constitute property. Metaphorically, they are the “sticks” in the bundle called property. Notice, however, that property also includes less powerful collections of incidents that do not rise to the level of ownership. For example, an easement involves primarily a claim-right and a privilege to use the land of another and secondarily a power to compel enforcement of that claim- right and privilege. It would be usual to classify an easement as property or a property interest, even though it does not amount to ownership. Easements, bailments, franchises, and some licenses are examples of limited property. Notice, too, that the idea of property will remain open-ended until one lists the kinds of “things” open to ownership. In a legal system, it will be mainly a descriptive task to compile the list. In political theory, it will be a normative problem to show what things should be open to ownership. The reference to ownable things is a link between the sophisticated and popular conceptions of property. Notice, finally, that even with a list of ownable things, the idea of property is indeterminate at the margin. No litmus test can separate rights of property from, say, those of contract in all cases. Nor do lawyers’ language and reasoning manifest, or require, such a line. It suffices to be able to describe a person’s legal position.
The idea of property rights is narrower than that of property. Property rights involve only advantageous incidents. Property involves disadvantageous incidents as well. Meant here is advantage or disadvantage to the right-holder or owner. Although property obviously involves disadvantages to persons other than the right-holder, it is important to see that there can be disadvantages to the right-holder as well. Suppose that someone owns a single-family home in a suburban area. Then she has a duty not to use it in ways prohibited by the law of nuisance or by zoning regulations. She may be disabled from transferring it to others with burdensome restrictions — for example, that no one may use it save for unduly limited purposes. If someone wins a court judgment for damages against her, then, subject perhaps to homestead laws, she has a liability that the home be sold to pay the judgment. The duty, disability, and liability are disadvantageous to her. It would be odd to say that they are part of her property rights in the home. But they are part of what is involved in saying that the home is her property. Similarly, easements, bailments, franchises, and some licenses involve limited property rights.
So to restrict them ignores a unifying feature of all legal rights — namely, that they are individual advantages secured by law. Any given right is apt to consist of distinguishable advantages. Among them a claim-right, with a correlative duty, need not be the most important. To take a prominent example, the “right” of free speech in the United States is only peripherally protected by duties not to interfere with speaking. The primary protection stems from a disability, imposed on the government by the First Amendment, of making laws that abridge freedom of speech. In the case of property rights, the normative modalities in Hohfeld’s elements column are almost always advantageous. And often their correlatives — duty, no-right, liability, and disability — are disadvantageous. But the latter need not be so. Consider the property interest that a beneficiary has in a support trust. The trustee in its discretion has a power to disburse sums for living expenses. The correlative liability of the beneficiary to have her legal position altered by receiving these sums would normally be considered advantageous. Thus, while claim-rights are important, they are not the sole, and need not be the most important, component of property rights. Indeed, it will emerge that the power to exclude and the power to transfer are often the weightiest components of property rights.
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