05 December 2020


'Property’s Building Blocks' by Anna di Robilant and Talha Syed in Henry Smith et al (eds) The Legacy of Wesley Hohfeld (Cambridge University Press, 2020) comments 

In the hundred years since Hohfeld published his two ‘Fundamental Legal Conceptions’ articles, the ‘bundle-of-rights’ view of property associated with his work has come to enjoy the status of conventional wisdom in American legal scholarship. Seen as a corrective to lay conceptions and a predecessor ‘Blackstonian’ view of property as the ‘sole and despotic dominion’ of an ‘owner’ over a thing, the central insight of Hohfeldian analysis is commonly taken to be that property is not a single ‘thing’ but rather a ‘bundle of rights’ with respect to things and persons. In recent years, however, this Hohfeldian view has come under increasing attack by critics calling to replace the bundle-of-rights picture with a return to lay or neo-Blackstonian conceptions of property, as the ‘right to a thing’, ‘thing-ownership’ or, simply, ‘the law of things’. Yet what precisely is at stake in this dispute has remained somewhat nebulous. In the words of one critic, although all sides to the debate ‘agree that the thing versus ad hoc bundle contrast is significant, it is surprisingly difficult to specify what the contrast really means’. Do the critics really mean to claim that property, as a legal concept, should be taken to refer to the ‘thing’ or object itself, rather than to legal rights pertaining to it? Or is it rather that the legal rights should be taken to pertain to a person-thing relation, rather than to one between persons? Or is it that the rights at issue should be seen as one or a few rather than many? Or, if many, then necessarily ‘unified’ rather than disaggregated? Or, whether single or multiple, “absolute” rather than ‘qualified’? And, finally, is the dispute – with respect to any or all of these questions – a matter of descriptive or normative or conceptual disagreement?

'On No-Rights and No Rights' by Matthew H Kramer in (2019) 64(3) American Journal of Jurisprudence 213 argues 

As is well known to everyone familiar with the analytical table of legal relationships propounded by the American jurist Wesley Hohfeld, one of the eight positions in the table is that of the no-right. In most discussions of Hohfeld’s overall framework, no-rights have received rather little attention. Doubtless, one reason for the relative dearth of scrutiny is that Hohfeld devised a hyphenated neologism to designate no-rights. Each of the other positions in the Hohfeldian table is designated by a term with a solid grounding in everyday discourse and juristic discourse, whereas the hyphenated term ‘no-right’ – in contrast with the unhyphenated phrase ‘no right’ – does not have any comparable grounding either in ordinary discourse or in juristic discourse. That neologism is almost never employed by anyone outside the confines of discussions of Hohfeld’s categories, and it is often not employed even within those confines. Notwithstanding the enormous amount of philosophical and juristic attention bestowed on Hohfeld’s analytical framework since its elaboration in the second decade of the twentieth century, the term ‘no-right’ has found little favor in philosophical or juristic circles. Moreover, on the rather rare occasions when the term is used rather than merely mentioned, it is almost always misused. The exploration of the correct use of that term in the first half of this paper may seem rather fussy, but the importance of that exploration for a satisfactory understanding of legal and moral relationships will become apparent in the second half of the paper. While endeavoring to vindicate the term ‘no-right’ as a fully apposite element in the vocabulary of legal philosophy, this paper will also be replying to a recent article by Heidi Hurd and Michael Moore in this journal.