The Transmissibility of Rights and the Power to Transfer Title

This chapter explains the concept of transmissibility of rights and the power to transfer title to property. The chapter discusses Hohfeld’s adoption of the extinction–creation model of transmissibility and the notion of identity and sameness as it applies to norms. It shows why conceiving of transfer as a kind of ‘directional abandonment’ is incorrect. The chapter concludes that nothing that is known about property rights or the law of property is illuminated by the Hohfeldian analysis of jural relations; indeed many aspects of property law are obscured by it.

Multital Jural Relations

This chapter advances a number of criticisms of Hohfeld’s ‘multital’ analysis of rights in rem. The chapter shows: (1) that Hohfeld confuses the connections between rights and duties, in particular rights in rem and general and special rights, and general duties; (2) that the claim that the general norm not to interfere with the property of others is not a public law duty, as some, relying upon Hohfeld, have claimed; (3) that the duty of care in negligence law cannot be squared with Hohfeldian analysis; and (4), that it individuates duties incorrectly.

The ‘Bundle of Rights’ Picture of Property Revisited

In the near century since Hohfeld published the second of his two papers on fundamental legal conceptions, his thought has been generally regarded as a bulwark of the ‘bundle of rights’ picture of property. This chapter shows (1) that the synthesis of Hohfeld’s thought with that of Tony Honoré’s theory of ownership to underpin this picture does not work; (2) that property reveals a coherent tripartite structure of title—the right to immediate exclusive possession, the power to license what would otherwise be a trespass, and the power to transfer; and (3) that the numerus clausas principle integrates property and contractual relations.

A Conclusion of Sorts

Where have we got to? As the title of the book indicates, this has been a re-examination of a number of issues that I think are vital to our comprehension of property rights. I am conscious of the fact that this book, taken as a whole, is somewhat ‘bitty’ or fragmented. I have addressed a number of distinct issues, and my purpose has not been to advance or defend a comprehensive theory of property rights. But let me just recapitulate some of its themes....

The Problems with Powers

This chapter looks at the question of how powers fit, or fail to fit, into the Hohfeldian scheme of jural relations. It points out the following deficiencies in Hohfeld’s theory of legal powers: it does not properly relate powers to the operations of law; (2) powers do not relate individuals under Hohfeld’s scheme of jural relations, but relate individual power-holders to jural relations; and (3) Hohfeld’s scheme cannot explain the interdependence of some Hohfeldian powers, like the Hohfeldian powers to transfer title to property. The chapter also refutes Steiner’s claim that Hohfeld’s analysis shows that there are no unwaivable rights.

The Justification of Property Rights

This chapter concerns the justification of property rights, and makes the argument that we do have ‘natural’ or ‘pre-legal’ rights to the use of things, a kind of usufructory right. The Kantian theory of property rights, most thoroughly and convincingly developed by Arthur Ripstein is discussed in detail. Various aspects of the theory are criticized, in particular Kant’s view of right to appropriate unowned things and his famous ‘assurance’ argument. In explaining his differences with the Kantian theory, the author expounds what has been called an ‘instrumentalist’ view of law in general and property law in particular, a view most closely associated with the private law writings of John Gardner.

Hohfeldian Liberties

This chapter examines the bilaterality, or bilateral structure, of Hohfeldian jural relations, and Hohfeld’s ‘disambiguation project’, that is, his project to ensure that the ambiguous term ‘right’ can be revealed to show that it covers four different sorts of ‘right’: right–duty, liberty–no right, power–liability, and immunity–disability. Consequently, according to Hohfeld, there being a right is necessary and sufficient to there being a duty and vice versa. The chapter discusses how this disambiguation of the term assists in legal, particularly judicial, reasoning. It then criticizes Hohfeld’s characterization of liberties, in particular showing that Hohfeld mischaracterized those areas of human conduct not regulated by law or morality.

Two Nominalisms

This chapter considers two versions of property ‘nominalism’, each of which claims that the sort of conceptualization of property offered in Chapter 1 is flawed; nominalists deny the normative ‘reality’ or ‘efficacy’ of legal concepts such as ‘title’ or ‘fee simple’, claiming instead that all the normative, that is, legal, action takes place with respect to more basic (e.g. Hohfeldian) jural relations. In reply it is argued that any attempt to reduce abstract concepts like ‘title’ to jural relations amongst individuals would ensure that we suffer a loss of understanding, and that this will hold true of any actual ‘Hohfeldian’ reduction of legal concepts to individual Hohfeldian jural relations. This chapter also sets out the principle of normativity, ‘The Guidance Function Principle of Norms’.

Rights in Land

This chapter considers property in land. Property rights in land, compared to property rights in chattels, are not very ‘paradigmatic’ of property rights. Rights in land are much more varied than rights in chattels or most kinds of intangible property. Because of that it is difficult, both historically and theoretically, to identify what ‘ownership’ of land consists of. This is not to say that we cannot apply the tripartite structure of title, to land. But because of its special features, title to land is everywhere adjusted, compromised, straitened, and complicated by a host of surrounding rules, some but not all of which have a public law character. The chapter concludes by arguing that there is no general right to enclose land, but that this is not based on some notion of common ownership of the earth, but on some developed notion of ‘home’.

Exclusion, Use, and Usability

This chapter recounts important features of the general exclusionary norm that structures the right to property of tangible things, chattels and land, i.e. the duty not to interfere with property that is not one’s own. It then considers the law of nuisance to determine whether the duty not to commit a nuisance protects a right to the use or usability of land, and argues otherwise, that the law of nuisance protects against the plaintiff’s constructive ouster from or deprivation of the subject matter of his rights.