Property in licences and the law of things.

AuthorEssert, Christopher

A theoretical account of property rights needs to identify what, if anything, is distinctive about property rights as opposed to other sorts of rights; what makes them the sorts of rights that they are. An important and prominent account of the distinctiveness of property rights claims that they are rights to things. I argue against this view: I show that a government-issued licence (to fish or to drive a taxi or to operate a radio station, say) is not a right to a thing but should nevertheless count as a property right. I consider two different arguments for this rights-to-things view: one is based on the Hohfeldian structure of property rights, and one relies on the importance of information costs in the law of property. While each of these arguments teaches us important lessons about property, none can properly support the conclusion that property is rights to things. I suggest that abandoning the rights-to-things view of property can lead to important insights into property theory more generally.

Pour expliquer les droits de propriete par le biais de la theorie, il faut identifier ce qui rend ces droits distinctifs par rapport aux autres types de droit. Autrement dit, il faut identifier ce qui les rend le type de droit qu'ils sont. Une demarche importante du caractere distinctif des droits de propriete pretend que ces droits portent sur des biens. Je m'oppose a ce point de vue : je demontre qu'un permis accorde par le gouvernement (par ex. pour pecher, conduire un taxi ou exploiter un service de radiodiffusion) ne confere pas de droit a un bien mais devrait etre considere comme un droit de propriete tout de meme. Je prends en consideration deux arguments differents pour elaborer cette idee : le premier se base sur la structure des droits de propriete proposee par Hohfeld, et le deuxieme concerne !'importance des couts d'information. Meme si chacun de ces arguments peut nous faire des lecons importantes en matiere de la propriete, aucun ne permet de conclure de facon adequate que les droits de propriete sont des droits a un bien. Je suggere qu'on abandonne la perspective selon laquelle le droit de propriete porte sur des biens; cet abandon peut nous mener a des idees importantes en theorie de la propriete plus generalement.

Introduction I. Two Methodological Comments II. Licences III. Things and In Rem Claim Rights IV. Information Costs, "Things", Interests, Concepts V. Ideal and Actual Licences Conclusion Introduction

You've probably heard that property is a right, not a thing. (1) This idea is hardly news--indeed, it's a part of the so-called "bundle of rights" view of property, the predominant view since the middle of the twentieth century at least. Recently, however, some theorists have tried to restore the central role played by things in our understanding of property, while at the same time recognizing the obvious plausibility of the "rights, not things" idea, by claiming that property is, distinctively, rights to things. (2) In this article, I show why this claim is mistaken. But I do so in a nonskeptical way. Let me begin by explaining what I mean by that. The best way to do so is with a brief tour of some aspects of the historical development of property theory.

In the beginning there was Blackstone. (3) His well-known account depicts (or is said to depict) property rights as absolute rights to exclude others--the "sole and despotic dominion"--from "the external things of the world." (4) However, in the twentieth century, property law and theory were dominated by the rejection of Blackstone's view and the embrace of the bundle of rights picture of property. (5) This rejection had two parts. One--the one that gets most of the press--was a rejection of Blackstone's absolutism. Early into a property law course, students learn that, in fact, the dominion of an owner over her property is often neither sole (co-ownership, leases, mortgages) nor despotic (nuisance law, easements). (6) The other--my concern here--was a rejection of Blackstone's idea that property rights are rights to "the external things of the world." Again, this move is familiar to anyone who paid attention in their property law course: we now think about property not just in terms of land and chattels, but also in terms of intangibles such as choses in action, intellectual property, and other more unusual entities (markets in hot news, professional licences, business goodwill, commercial exploitation of public images).

We can trace this second part of the rejection of Blackstone to the legal realists. Based on Hohfeld's explanation of private law rights in terms of his "fundamental legal conceptions", (7) the realists argued that property "has ceased to describe any res, or object of sense, at all, and has become merely a bundle of legal relations." (8) But this view of property as a bundle of rights is tied to a sort of skepticism about property rights; for the realists, there is no "there" there when it comes to property. This skepticism leads to both theoretical and legal problems: theoretically, it abandons the plausible and intuitive idea that the concept of property has content (that is, that it is the concept of some thing) (9), and legally, it causes trouble for those questions (about bankruptcy, takings, marriage, and so on) that turn on whether or not a given right is a property right. Vandevelde captures the gist:

Once property was reconceived to include potentially any valuable interest, there was no logical stopping point. Property could include all legal relations. [I]f property included all legal relations, then it could no longer serve to distinguish one set of legal relations from another. It would lose its meaning as a category of law. [T]he determination of whether an interest was property was not one of logic, but of politics. (10) This is the reason that the deconstruction of property was, for some, intentional: their idea was that policy decisions should be made based on explicit political grounds rather than based on a discredited legal conceptual category. Thus we see the skepticism of the bundle of rights view of property: it is a skepticism about the distinctiveness of the legal concept of property in favour of what is taken to be a pragmatic view about policy decision making. (11)

This skeptical view of property as a bundle of rights is now the dominant one. (12) Recently, however, some prominent property theorists have begun to move away from the skepticism that is central to the bundle of rights view of property. These scholars have instead attempted to take seriously the conceptual structure internal to property law and tried to make sense of it on its own terms. Henry Smith's "architectural approach" to property law illustrates the point: Smith argues that even the metaphor of a "bundle" of rights fails to explain the juridical fact that property entitlements tend to be grouped together in certain distinctive ways, and he argues that failing to notice this "architecture" of property law is a significant drawback of the bundle of rights view. (13)

Instead, Smith and others have offered a non-skeptical view about the nature of property. According to this view, roughly, the distinctiveness of property rights--what makes them the rights that they are--is that they are rights to exclude others from things. The view is non-skeptical because it attempts to explain property on its own terms and to make sense of the idea that there is such a thing as the law of property.

Substantively, the non-skeptical view is in some ways a return to the Blackstonian view. Just as in Blackstone's case, the view has two interesting parts. One part claims that property rights are rights to exclude; as I've already said, this part of the view is not my interest here and so I'll leave it aside. The other part--the subject of this article--claims, just as Blackstone did, that property rights are rights to things. Indeed, one recent article by Smith is called "Property as the Law of Things"; I'll adopt that title and refer to the view shared by Smith and others as the "law-of-things" view of property.

This non-skeptical view that property rights are rights to things has been taken in two directions, each premised on a different understanding of "things". One understanding takes "things" to mean, roughly, concrete physical things--basically, land and physical objects. This "concrete" view essentially rejects the lessons of the twentieth century and denies what most take to be trite law--that there exists intangible property. It is hard to see how this could be a plausible way of looking at property law; nevertheless, I'll consider one recent account that takes this line, because seeing why it fails on its own terms will be helpful in rejecting more plausible views. The other prevalent version of the law-of-things view--Smith's own--takes a much wider view of its core concept. For Smith, the theory itself "defines what a thing is to begin with."14 This is not as circular as I am making it seem; rather, Smith has a way of defining what counts as a "thing" that allows him to say that property rights in intangibles also count as rights to things. As we'll see, however, this thought is subject to problems of its own.

Now I can properly explain what I meant when I said at the outset that I would propose a non-skeptical denial of the claim that property rights are rights to things. The bundle of rights view that dominated property theory in the twentieth century is a skeptical denial of the claim: it says that property rights are not rights to things because, basically, there is nothing distinctive about property rights at all. The law-of-things view rejects that skepticism and tries to provide an account of property that makes sense of its distinctiveness. In what follows, I'll suggest that this is where property theory took a wrong turn, but I'll do so nonskeptically. I agree that we must take property's internal conceptual...

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