Property Rights: A Re-Examination
J. E Penner
Abstract
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 ... More
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.
Keywords:
property,
ownership,
rights,
Hohfeld,
bundle of rights,
legal powers,
Kant,
land rights,
usufruct
Bibliographic Information
| Print publication date: 2020 |
Print ISBN-13: 9780198830122 |
| Published to Oxford Scholarship Online: June 2020 |
DOI:10.1093/oso/9780198830122.001.0001 |
