II. HOHFELD AND THE BUNDLE THEORY

The bundle theory, in its modern form, is primarily the result of work by two figures: Wesley HohfeldFootnote ⁶ and A.M. (Tony) Honoré.Footnote ⁷ Hohfeld makes pioneering and perhaps unprecedented efforts to impose a measure of logical rigor on legal concepts in general, and the influence of these efforts has proved especially lasting in rights theory; Honoré's writings on the concept of property are among his most significant contributions to an extensive range of topics in legal philosophy and general jurisprudence. I discuss the relevance of both to my argument after briefly outlining what I take to be the bundle theory's key features.

Although now inextricably linked with Hohfeld and Honoré, the notion of property rights as comprising a “bundle of sticks” predates their work.Footnote ⁸ The bundle theory holds, at its most basic, that the “right” of a property owner is separable into a series of component right-parts; my “ownership” of some chattel may comprise, inter alia, a right of exclusion, a right of use, a right of possession, and a right of alienation, none of which is conceptually dependent on any of the others.Footnote ⁹ The doctrine of estates in real property introduces further, more exotic interests; I may acquire the right of occupation in an apartment from you, perhaps supplemented by various easements and rights of access, though my right to alienate it may be restricted by the terms of the license. You may in turn have only a life interest in that apartment, with a reversion vesting in a relative upon your death. These arrangements are subject to revision over time in response to economic and social circumstances and can thus vary substantially from jurisdiction to jurisdiction, with many local peculiarities developing. The common law envisages, for instance, such collective provisions as those of the Israeli kibbutznik and the American Hutterite;Footnote ¹⁰ if the property is Irish and the owner indebted, the High Court may encumber it with a “judgement mortgage”Footnote ¹¹

The bundle theory regards these individual and separable rights, or “sticks,” as having no substantive, essential connection to each other. To the extent that any two or more of them tend to accompany each other, their conjunction is contingent rather than intrinsic; from a logical point of view, we might as easily have tied any other combination of the possible interests in the chattel or property together in the bundle. In our ordinary commercial transactions, we can and do take these bundles apart, redistributing the sticks among others’ bundles, and replacing them with new ones.Footnote ¹²

Who, then, is “the owner” of some particular piece of property? The question, for a bundle theorist, involves something like what Gilbert Ryle would have termed a “category error”Footnote ¹³ Since the number and kind of such interests in the property, all vested in different individuals, may be almost unlimited depending on the legal jurisdiction, it makes little intuitive sense to pick out any one interest bearer as “the” owner. No particular interest or right, and moreover no particular combination of those interests and rights, is either necessary or sufficient to establish ownership.Footnote ¹⁴ “The lawyer,” as Jeremy Waldron notes, “will not be interested in finding out which of [the various parties] really counts as an owner. His only concern is with the detailed contents of the various different bundles of legal relations.”Footnote ¹⁵

Any unitary notion of “ownership,” then, denoting a single canonical relation between person and property, seems to drop out of the legal picture altogether, surviving as a mere “folk-legal” concept in the discourse of laymen. Among the cognoscenti, even Ackerman's “dimmest law student” recognizes that the term is at best an imprecise placeholder for what really matters—which individual bears the particular stick or sticks relevant to the legal dispute in question.

That, at any rate, is the essence of the bundle theory of property rights. “Property” and “ownership” are therefore amorphous or “shapeless” concepts,Footnote ¹⁶ failing to pick out consistently any determinate legal relation or set of legal relations. Rather, their extension changes from one occasion to the next; while everyday talk ascribes an essence or “core” content to the concepts of property and ownership, no such entity in fact exists. For the bundle theorist, then, the terms represent a sort of primitive hangover from outdated theories that legal science has now dispelled, in much the way that character traits like courage and romance are still widely credited to the heart.

The theory has a distinguished philosophical lineage. It might not have been approved by Hume himself but is certainly in the spirit of his injunction to “commit to the flames” as sophistry and illusion anything that is neither observable (like the sticks) nor knowable a priori.Footnote ¹⁷ Indeed, my claim is that it represents a special case of what David Lewis terms “Humean supervenience,” or “the doctrine that all there is to the world is a vast mosaic of local matters of particular fact, just one little thing and then another.”Footnote ¹⁸ That is to say, anything true we can say about the world ultimately reduces to statements about the distribution of perfectly natural properties and relations; there are no necessary connections between the individual perfectly natural properties and relations; and those perfectly natural properties and relations are the intrinsic properties of subatomic particles and the spatiotemporal relations between them.

“Supervenience” more generally is a philosophers’ term of art for a relation between sets of properties; A-properties supervene on B-properties if and only if all differences in A-properties must be accompanied by differences in B-properties. Thus, for instance, the brittleness of objects is said to supervene on their physical microstructure; if one windowpane is more shatter-resistant than another, then the atoms composing the two must be differently arranged. Conversely, a different arrangement of atoms does not entail a different level of brittleness, and my coffee mug may be just as prone to shattering as a windshield while clearly being differently constituted.Footnote ¹⁹

For the subatomic particles discussed by Lewis, we may substitute individual “sticks” in the bundle of property rights. The bundle theory holds, then, that anything we wish to say about what are commonly termed “property” and “ownership” can be said by reference exclusively to the properties of the sticks in question, that none of those sticks or their properties are necessarily connected with or related to any of the others,Footnote ²⁰ and that nothing above and beyond these sticks and their properties and relations is of relevance to “true”—that is, legally valid—judicial decision-making. Statements about “property” and “ownership” in every case are therefore either redundant—being reducible in full to their constituent claim-rights—or simply false, invoking mysterious entities of which we have neither evidence nor a coherent understanding.Footnote ²¹

In metaphysical terms, the bundle theory is therefore, like any Humean theory, a naturalist and an antiessentialist, position. It is naturalist insofar as it denies the existence of any further relation of “property” or “ownership” over and above the specific claim-rights; once these have been inventoried, there is nothing more the law needs to know. It is likewise antiessentialist, because it denies that there is any particular “core” claim-right or set of such rights that determines how the concepts of “property” and “ownership” are to be applied. Depending on the variant, it may deny outright that any legal relation or group of such entities exists that corresponds to those concepts (an antirealist bundle theory), or it may hold that numerous such relations or collections of them correspond to the concepts, which may be defined in any number of ways according to judicial convenience and none of which possesses any special theoretical significance (a “promiscuous realist” bundle theory).Footnote ²² But for practical purposes, the difference between these variants is merely notational.

The greatest impetus to the bundle theory's popularity came from the work of Wesley Hohfeld, who first demonstrated that the apparent unity of the property and ownership relations in fact concealed a myriad of distinct legal relations, in particular claim-rights, privileges, powers, and immunities.Footnote ²³ Understood thus, moreover, it becomes clear that the property and ownership relations could be understood not as holding between a person and a thing but rather—and less mysteriously—as holding between a great number of persons regarding a thing.Footnote ²⁴ Accordingly, Hohfeld proposes to replace the traditional distinction between rights in rem and in personam with a new terminology:

Thus, following and quoting with approval the position of Chief Justice Holmes,Footnote ²⁶ Hohfeld declares that the apparent distinction in kind could be reduced to a mere difference in quantity; a supposed right in rem is simply a great many rights in personam bundled together:

Note that the apparent distinction between contractual and property rights has also vanished; Hohfeld finds such merely formal, extrinsic distinctionsFootnote ²⁸ spurious where the underlying substance of the right in question is invariant.

A final significant feature worth noting in Hohfeld's analysis is the so-called “correlativity axiom,”Footnote ²⁹ which joins the concepts of claim-rights, privileges, powers, and immunities with their respective correlates of duties, no-rights, liabilities, and disabilities. The axiom states that there is a symmetrical relation of strict implication between each pair; to take the most relevant and well-known example of rights and duties, my right of exclusive possession of an apartment strictly implies everybody else's corresponding duty to exclude themselves from it, and vice versa.Footnote ³⁰ Since the correlation is axiomatic, it is nonsensical to see the right as arising from the duty or the duty from the right, “(j)ust as a slope's downward direction is not prior or posterior to its upward direction—either logically or temporally.”Footnote ³¹ The claim is not an empirical one; that every duty is owed to the holder of a right and every right held against the bearer of a duty is a purely analytical consequence of what the terms “right” and “duty” mean.Footnote ³²

The other major figure in the development of the bundle theory, as mentioned above, is Tony Honoré, whose influential elaboration of Hohfeld's analysis distinguishes eleven “standard incidents” of ownership.Footnote ³³ While we need not consider each of these in detail, they now form the canonical list of sticks in each bundle, on which the “truth,” or legal validity, of judicial determinations about property must supervene.

Yet although we may for most purposes and for the sake of convenience speak of these “incidents” as the sticks or judicial “atoms,” the true import of Justice Holmes's and Hohfeld's analysis is rather more radical; the “ultimate” sticks of which the bundle is comprised are not these eleven, but each of these eleven as indexed not only to each individual right holder and duty bearer (your right of possession over Blackacre as held against me and that as held against my neighbor are after all separable) but to each potentially detachable part of the things over which the rights are held (for you may partition Blackacre and sell me a right of possession in the eastern but not the western half).Footnote ³⁴ Since the sticks are so infinitesimal, it is little wonder that theorists have written of the “disintegration” of property.Footnote ³⁵

III. PENNER'S “UNIFIED CONCEPT”

So much for the bundle theory as it has descended to us through Hohfeld and Honoré and as I propose to defend it against the recent attacks. Why has its popularity declined so sharply in recent decades, to the point that recent theorists of property, in the course of outlining their own views, can regard it as abundantly refuted and in no need of further discussion?Footnote ³⁶ Even during its ascendancy, the contrary idea of “an integrated notion of property existing prior to and informing the law”Footnote ³⁷ remained attractive for a variety of reasons, including its congruence with laypersons’ intuitions and the purported ability “to explain the clear meaning and use of the term in theory and practice”Footnote ³⁸ as well as to ground wider arguments about the justice of particular distributions of property. In particular, such a notion is thought to provide a bulwark against “statist” confiscatory practices.Footnote ³⁹ As stated above, I do not propose to discuss the issues of distributive justice in the course of this paper. Rather, I focus on the ways that the concepts of ownership and property are meant and used, according to some of the more influential critiques of the bundle theory, with the aim of exposing a number of misunderstandings or misrepresentations of the theory. What these alternative theories share, which the bundle theory denies, is the focus on some supposed “standard” relationship that an owner might have to a particular physical resource that they take to be paradigmatic of property and ownership in general.

The first such view I want to consider is that of James Penner. In a lengthy (110 pages) paperFootnote ⁴⁰ and a subsequent monograph,Footnote ⁴¹ he outlines both a critique of the bundle theory and an alternative, “unified” concept of property that rest on two main claims; the “exclusion thesis,” and the “separability thesis.” I focus on the critical rather than the positive aspect of his theory; if his criticisms of the bundle theory prove unsuccessful, then the positive account loses both its motivation and many of its basic assumptions.

Penner's critique begins inauspiciously. “Hohfeld,” he writes, “was mad for symmetry between rights and duties, and he based his notion of the correlativity of rights to duties on it.”Footnote ⁴² But as we see above, with what Kramer terms the “correlativity axiom,” Hohfeld identifies a logical equivalence between X's holding a right against Y and Y's having some correlative duty toward Y. That equivalence is not merely the expression of some irrational aesthetic whim of Hohfeld's; it is, prima facie, a function of the very meaning of the terms.Footnote ⁴³ So when Penner concedes that anybody believing in the correlativity of rights and duties is “pretty much bound to describe a right in rem as a multitude of rights in personam,”Footnote ⁴⁴ but reassures us that “(n)o one without a commitment to Hohfeld's views regarding symmetry need define correlativity in this way,”Footnote ⁴⁵ he owes us rather more than the expression of personal aesthetic preference for asymmetry and rejection of the in rem/in personam reduction as implausible that we are given. What we really need and are nowhere given is a wholly new account of the normal meaning of “right” and “duty” that establishes that they are independent, and unrelated, concepts.

Let us charitably suppose that some such definition of those terms is available and acceptable. Why does Penner consider the equivalence of in rem and in personam rights to be implausible? The difference between the two which Hohfeld's analysis omits, he argues, is that for a right in personam—unlike a right in rem—it matters which particular person is the duty bearer or the right holder.

Consider the familiar Blackacre. “If A owns Blackacre,” writes Penner, “then he may grant any number of rights in personam to specific or specifiable people to make use of it, walk across it, and so on. But it matters to A who they are, and it matters to them who A is.”Footnote ⁴⁶ A must know who they are in order to grant them the right, and they must know who A is and the scope of his rights in order to assess the content of their license. But in the matter of rights in rem, as when someone wishes to purchase Blackacre, no such personal familiarity with A is required:

This is not an especially novel point. Indeed, it will be familiar to logicians and philosophers of language as a case of the de dicto/de re distinction.Footnote ⁴⁸ Consider the phrase “the tallest boy in the class”; this picks out one determinate individual. But in semantic contexts such as belief and desire ascription or “modal” claims about possibility and necessity, termed “referentially opaque,,” such a phrase may be ambiguous. In the sentence “Mary wants to kiss the tallest boy in the class,” the phrase may refer to that specific person, or it may function as a general description that any number of others might have fulfilled in other circumstances. Suppose that Mary believes Henry to be the tallest boy; the sentence does not specify whether she wishes to kiss Henry in particular or whichever boy happens to be tallest (perhaps she is mistaken, and Henry is in fact marginally shorter than Ben, who slouches). If it is Henry alone whom she desires, the sentence should be interpreted de re, or as pertaining to the “thing” identified by the phrase; if instead she desires the tallest boy regardless of who he may be, the sentence should be read de dicto, or as pertaining to the “words” of the phrase itself.

Something of this sort, I take it, is at the root of Penner's concern. If I am granted a license in personam to walk Blackacre by its owner, I must have the ability to identify him, and the phrase “the owner of Blackacre” should consequently be read de re. But if I am not granted such a license, I have, like everybody else, a duty in rem toward “the owner of Blackacre,,” whoever that may be (i.e., read de dicto). Penner explains:

The question here, which Penner appears to beg, is why I must have personal knowledge of somebody's identity in order to hold a right of or bear a duty toward them in personam. We might suppose that I must have such knowledge if I am claiming a special or exceptional right; if I am asserting, for instance, that I, unlike everybody else, have been granted a license to walk Blackacre. But that would be the case, if true, only because the exceptional nature of my right, as against the “default” rights and duties of everybody else, would require it to be specifically granted.Footnote ⁵⁰ This in no way entails that the rights and duties we assume in default of being specifically exempted—such as the duty to avoid trespassing on the property of others—are any less in personam than the exceptional ones we are granted specifically. When Penner “presumes” that we must know which owners (de re) hold what property in order to understand our in personam duties, he is helping himself to just what is at issue: the claim that an undifferentiated duty in rem cannot be reduced to a multitude of individual in personam duties.

Suppose that Mary, some years later, is out walking in the countryside. She happens upon Blackacre and briefly considers taking a shortcut across it. “I had better go the long way around,” she tells herself eventually, “since I have a duty to Blackacre's owner not to trespass on the land.” Suppose further that Mary believes her old schoolgirl crush Henry to be the owner; nothing about the legal nature of the duty hangs on whether or not her belief is correct. Whoever the owner is, Mary bears an (otherwise) identical duty to that person not to trespass. The distinction between de re and de dicto meanings can be problematic, but only in contexts of “referential opacity,” when the intended reference of the sentence may fail. Since the law does not traffic in such statements,Footnote ⁵¹ the ambiguity identified by Penner cannot be legally significant.

Against the view that property is “a structural composite,,” Penner goes on to propose an alternative view of property as “a single right protecting a single, identifiable interest.”Footnote ⁵² The argument for this conclusion is “essentially a burden of proof argument, drawing on the intuition of Occam's razor.”Footnote ⁵³ This invocation is surprising, to say the least; William of Ockham's injunction that entia non sunt multiplicanda praeter necessitatem Footnote ⁵⁴ would serve perfectly as an epigram for the bundle theory and its insistence that the phenomenon of property can be fully explained on the basis of the individual “sticks” without any appeal to a wider, all-encompassing relation of “property ownership.”

Penner, although he elsewhere explicitly divides his alternative account into an “exclusion thesis” and a “separability thesis,”Footnote ⁵⁵ states his view of property most succinctly thus:

This certainly captures much of the intuitive force of the folk-legal concept of “property” However, the attempt to shoehorn various aspects of property law into—and various other aspects of law out of—this concept of a “single, coherent right”Footnote ⁵⁷ can only be described as tortuous.Footnote ⁵⁸

The problem is not that Penner is unsuccessful in the two hundred or so pages that the endeavor takes up. The problem, reminiscent of Thomas Kuhn's famous account of the Copernican revolution,Footnote ⁵⁹ is rather that such an extensive effort is necessary at all. As Kuhn describes, the Ptolemaic astronomers who predated Copernicus believed the sun and planets to orbit the Earth in “cycles” of perfectly circular form. As more and more accurate observations began to be made, however, it became necessary to postulate further circular oscillations around the cycles themselves—“epicycles”—to preserve the theory. By the time of Johannes Kepler, who first questioned the utility of the epicycles, the ad hoc patches necessary to support the geocentric/circular orbits theory had become absurdly complex. What distinguished the Copernican theory was not that he could make better and more accurate predictions, for he could not; rather, it was the fact that his theory did not need to be supplemented by such a massively complicated auxiliary structure to bring it into line with observation. A sufficiently determined theorist, both W.V. Quine and Pierre Duhem demonstrate, can reconcile any recalcitrant data whatsoever with his theory;Footnote ⁶⁰ the question for Penner is not whether his efforts are successful but whether they are worth the trouble.Footnote ⁶¹

There remain, in any case, theoretical problems with Penner's analysis. Penner draws a contrast between the bundle theory and his own on the basis of the individuation of particular rights; where the bundle theorist must believe such rights to be discrete and determinate, like “(m)embers of a club [which] naturally come in units called persons,,” Penner holds that they are in fact like “pieces of a cake which can be sliced in any way we wish”; they are “no more than momentary functional descriptions made with a particular legal concern in mind.” Footnote ⁶²

That this is so, Penner believes, can be seen by reflecting on what happens when someone grants another a license to use their property. On the bundle view, “A, the owner, holds in his bundle of rights the millions of rights of B to do each and every thing with A's property, and the millions of rights of C, and D, ad infinitum. On the grant of a license to B, A merely extracts the particular right from his bundle with B's name on it and transfers it to B. If it is a non-exclusive license, then A can do the same in turn for C or D.”Footnote ⁶³ The prospect, he writes, “boggles the mind.”Footnote ⁶⁴

Yet this consequence—that the bundle theory entails the existence of a “mind-boggling” number of discrete rights—should be neither surprising nor troubling. In outlining the bundle theory above, I compare the rights not to “sticks” in a bundle but to “atoms” of property; the Humean supervenience thesis to which I compare the bundle theory is specifically one about how our everyday talk about the world is ultimately dependent on and reducible to talk about the subatomic particles of modern physics. The number of such particles making up the world may indeed be mind-boggling; but no physicist supposes that the physical world therefore has the structure of cake and “can be sliced in any way we wish.” No matter how many such atoms there are, they are nevertheless individually discrete; Penner would hardly suppose that the members of Barcelona Football Club fail to be individuated simply because there are 170,000 of them.

Penner restates his argument as follows:

But phrased this way, the incoherence of his position becomes clear; there is simply no formal difference at all between “anything” and “everything” in this context. In any imaginable calculus of rights, the two notions will be expressed by exactly the same universal quantifier: “For all rights x, A may exercise x or grant it to B.” Once again, Penner insists on an intuitive distinction premised on the existence of some special property or entity that exists over and above the elements into which it can be formally analyzed without—in the mathematical sense—remainder.

The ultimate reason for clinging to this distinction Penner calls the “uselessness thesis”; the bundle theory involves “at least the tacit admission, that the concept of ‘property’ is vague or undefinable, and so . . . degenerate or useless.”Footnote ⁶⁶ If the theory is true, he reasons, the deflationary concept of “property” that it advances can add nothing to our understanding of property law or judicial decision-making. For Thomas Grey,Footnote ⁶⁷ this means that the entire concept, though retaining some use at the “folk-legal” level, must ultimately be confused. On a more moderate view, such as Barry Hoffmaster's, the concept is conclusory: “A statement of ownership is a conclusion drawn from comparing a particular combination of the incidents of ownership, existing together in a determinate situation, with the paradigm of ownership.”Footnote ⁶⁸ In other words, judges will make a decision in any given case on the basis of the particular rights and duties of the parties and the particular demands of justice in the circumstances and will retrospectively declare a property right to have or not to have obtained.Footnote ⁶⁹

To show the problem with the “uselessness thesis,,” Penner examines the famous cases of International News Service v. Associated Press Footnote ⁷⁰ and Moore v. Regents of the University of California.Footnote ⁷¹ In International News, Justice Pitney for the majority determined that the plaintiffs, by republishing “hot”—but noncopyrightable—news gathered by the defendants, had infringed the defendants’ “quasi property.”Footnote ⁷² Like the dissents by Justices Holmes and Brandeis, this seemed perfectly to illustrate the conclusory view.

“Instead of talking about ‘quasi property’ or ‘exchangeable values,’” wonders Penner, “are we not on a better footing if we can say that what the Associated Press was claiming was the right to a market monopoly, akin to the protection generally provided by the monopolies of copyright or patent law?”Footnote ⁷³ Such a “property right to a legally structured market position,,” he argues, makes more sense than “(j)amming rights to the news or to an idea into the mold of property rights.”Footnote ⁷⁴ Yet this characterization of the conclusory view is plainly inaccurate and still wedded to the idea of the property concept as determinate. There is no need to “jam” such rights into a “mold”; the property concept, according to the bundle theory, is “shapeless” and more akin to a blanket we may simply throw loosely over whatever considerations we wish it to cover. It is hard to argue, moreover, that Penner's “unified concept” of property makes judicial reasoning easier to predict if the “naive but accurate”Footnote ⁷⁵ intuition he appeals to finds all three Supreme Court opinions in a landmark case confused.

In Moore, where the plaintiff sought to have his property rights recognized in cells excised from his body during surgery for leukemia, which were later the subject of several patent lines, Penner's account is similarly at variance with actual judicial reasoning. Justice Panelli, writing for the majority, denied the claim in conversion on the grounds that a relevant statute “eliminates so many of the rights ordinarily attached to property that one cannot simply assume that what is left amounts to ‘property’ or ‘ownership.’”Footnote ⁷⁶ Yet Penner rejects both this and the other opinions by Justice Mosk—who explicitly invokes the bundle theoryFootnote ⁷⁷—and Justices Broussard and Arabian for failing to consider the question of whether: “(e)ven if one can regard the control rights we have over our body parts as somewhat akin to ‘ownership,’ is there nothing more to be said before we treat something as intimately related to the human persona as one's body as property?”Footnote ⁷⁸

The bundle theorist's answer, and that adopted by each of the justices in Moore, is simply “no”; the facts of the case and the particular bundle of sticks involved provide a complete basis on which to reach the decision, and no concept merely supervening upon them need be invoked to explain the outcome. Penner thinks this entails “(t)he idea that some magic occurred on [Moore's spleen's] removal so that the researchers could claim a property right in it as if claiming something unowned the instant it left his body.”Footnote ⁷⁹ Once more, however, the criticism works only if one is wedded to a substantive concept of “property.” If “a property right” is itself nothing magical but merely the label we attach ex post to any subbundle of the sticks sufficient to decide the case, then there is just nothing at all mysterious about that “right” transferring when certain of its constituent sticks do.

I leave the discussion of Penner with one final point that appears to have gone unremarked in the subsequent literature. To sustain the “unified” concept of property in the admitted absence of necessary and sufficient conditions for its application, Penner overturns the entire standard field of “classical” semantics, relying instead on an alternative view based on Jonathan Sutton's unpublished bachelor of philosophy thesis.Footnote ⁸⁰ I offer no opinion here on the merits of Prof. Sutton's “criterial” semantics, save to note that it has not yet displaced the mainstream view. To completely revise our understanding of linguistic meaning for the sole purpose of preserving a particular theoretical view of legal rights would surely be to break a butterfly upon the proverbial wheel. That Penner does so in the name of “a burden of proof argument, drawing on the intuition of Occam's razor”Footnote ⁸¹ is doubly curious.

IV. HARRIS'S “MINIMAL STRUCTURE”

The final antibundle argument I am considering is that of Jim Harris. Harris's main work on the subjectFootnote ⁸² is careful and detailed, but it can occasionally be difficult to identify a particular structure to the overall argument. Accordingly, I deal with the main points in approximately the order he raises them.

He begins, oddly enough, by effectively conceding one of the central claims of the bundle theory. Although “all of us (philosophers, lawyers, and ordinary folk) seem to share an intuitive idea of what property is,”Footnote ⁸³ there is “no univocal, singular concept of ownership”Footnote ⁸⁴ or property to reckon with. Indeed, on a number of occasions he refers explicitlyFootnote ⁸⁵ or implicitlyFootnote ⁸⁶ to the notion of a “bundle” of rights. On what grounds, then, does Harris reject the bundle theory? Although no single concept can do justice to property rights, he argues, we can identify a minimal core of necessary conditions based on “the twin notions of trespassory rules and the ownership spectrum,”Footnote ⁸⁷ which is then extended in a variety of directions by different legal systems in response to different circumstances and desiderata.

The first stage of Harris's argument is to attempt to fix our intuitions about property by the use of a series of anthropological thought experiments, termed Forest Land, Status Land, Red Land, Contract Land, Wood Land, and Pink Land, progressively advancing in both the type of resources available to residents and the local rules limiting their use.Footnote ⁸⁸ Harris's method is to demonstrate that one concept is “logically prior” to another by showing that an anthropologist from one imaginary society could understand another's practices only in terms of his own group's. But this seems a clear non sequitur; we may at best conclude from these stories that concepts like private property are descriptively prior to alternatives given the limits of the hypothetical anthropologist's conceptual resources.

Harris's imaginary societies might be unobjectionable if their purpose were simply to establish the outlines of his own intuitions about property; but they are useless in investigating how those intuitions line up with reality.Footnote ⁸⁹ Yet he immediately begins drawing lessons about necessary and sufficient conditions for the existence of property institutions, lessons that simply repeat the assertions made about his own intuitions in the course of describing the imaginary societies. Before long, the discussions will have “yielded the conclusion that the core idea of a property institution resides in the twinned conceptions of trespassory rules and the ownership spectrum.”Footnote ⁹⁰

If the elements of the “minimal structure” are of dubious provenance, the “sophisticated structures,”Footnote ⁹¹ Harris insists must be built upon it for the purposes of the full range of modern property talk are patently gerrymandered. Example after example is force-fitted in or out of the schema in the same epicyclical manner we saw in Penner, in openly vague and arbitrary fashion; “if one poses the question, who is the owner of this house or flat?, answers will refer only to those with leases of a substantial duration, although usage points to no particular cut-off point.”Footnote ⁹² The result, he freely admits, “is a portmanteau category,”Footnote ⁹³ delineated only by “a stipulative boundary.”Footnote ⁹⁴

In defense of this position, Harris argues that in the absence of such a unified, albeit heterogeneous, concept, “we would have to regard as baleful”Footnote ⁹⁵ the everyday claims of entitlement to particular items of social wealth. This may be the aim of some more radical critics of property, but there is no obvious reason we cannot, per Thomas Grey,Footnote ⁹⁶ leave the folk-concept intact for everyday use and rest the actual legal claims of entitlement on the individual “sticks” themselves.

Harris defends his jury-rigged property concept against some of those radical critics by arguing that the property skepticism of Alf Ross and Karl Olivecrona:

This is perfectly true as far as it goes; artificial, even socially constructed kinds (such as money or lawyers) are no less real, objective features of the world than “natural” kinds (such as water or dogs). But there is a further, perfectly obvious distinction between these artificial-but-real kinds and the sort described by Nelson Goodman as “grue-some,” exemplified by the heterogeneous property of being “grue”: green if examined before time t, and blue if examined thereafter.Footnote ⁹⁸ Some artificial kinds, that is, do reflect the real contours of our world, but this will not license just any portmanteau category; “kosher” is a potentially useful scientific classification, whatever one's faith,Footnote ⁹⁹ but “kosher, or yellow, or smaller than a bread-bin” is not. Pointing out that concepts of the former sort are legitimate does not absolve charges that Harris's “portmanteau concept” is of the latter sort. The human mind may indeed create abstract concepts, but it should not simultaneously “eschew any ‘true’ semantic or conceptual essence”Footnote ¹⁰⁰ of those concepts if it wishes them to be regarded as faithful to reality, carving nature at the proverbial joints.

Harris's rival view of property and ownership, then, is unsupported by any persuasive line of argument. However, he makes direct criticisms of two aspects of the bundle theory that its proponents will be concerned to rebut. The first of these again concerns the correlativity axiom, while the second decries the “conclusory view” of the role of the property concept in judicial decision-making as tautologous.

The root of Harris's attack on the correlativity axiom is, once again, an apparent misunderstanding of the in rem/in personam reduction. The common view holds, he argues, that the layman thinks in terms of relations between persons and objects, while the lawyer knows that the relevant relations are between people and concerning the objects in question. “The contrast,” he insists, “is a false one.”Footnote ¹⁰¹

Indeed it is, but it also seems a straw man. Nothing in Hohfeld's or Honoré's arguments, as Harris himself acknowledges,Footnote ¹⁰² suggests that we must cease to speak or think even loosely about legal relations between persons and objects; their aim is to analyze such talk, not to eliminate it. The point is, in other words, that we can better understand the nature of those legal relations if we reduce them to relations between persons. The bundle theory requires no more; it displays the underlying logical structure of such relations but does nothing thereby to undermine them.

The reduction is possible, Harris agrees, if two conditions are met: “first, that all the relevant legal provisions are known and determinate—no open texture; and, secondly, that we are seeking to convey information about the legal situation at a particular moment in time.”Footnote ¹⁰³ Without going into the details of Harris's discussion of the second condition, let us agree that he identifies an important qualification to the bundle theory as previously elaborated.Footnote ¹⁰⁴ At the end of Section II, I identify the “sticks” composing a typical bundle as corresponding to each of Honoré's incidents, indexed to each particular potential right holder, duty bearer, and detachable part of the object in question. Since I may convey an interest in the object to you for a limited period of time only, we should say further that the incidents are indexed to the individual temporal parts of the detachable portions of the object.Footnote ¹⁰⁵

The first condition, whose terminology is drawn from Hart,Footnote ¹⁰⁶ requires that it may not be an open question whether a given instance of conduct falls under the scope of the right.Footnote ¹⁰⁷ A right in rem which is not open-textured in this way will straightforwardly reduce to a bundle of rights in personam whose scope is similarly known and determinate. What is the problem with open-textured rights in rem? According to Harris, judicial decisions regarding such rights, lacking a determinate basis in precedent, must appeal to the values of ownership generally. But in doing so, they must either be brute and tautologous in their conclusions or they must invoke a particular relation between persons and things.

In short, Harris's objection to the correlativity axiom is also an objection to the “conclusory view” of property's role in judicial reasoning. In Bradford v. Pickles,Footnote ¹⁰⁸ the plaintiffs sought to restrain the defendant from sinking a well under his land under the law of nuisance, as his sole purpose in doing so was to prevent water from percolating to their waterworks, thereby forcing them to purchase the land from him. The House of Lords upheld the lower court's refusal of an injunction, explicitly invoking Mr. Pickles’ “rights as a landowner” to use his property in a self-interested manner, even if doing so was “churlish, selfish, and grasping.”Footnote ¹⁰⁹ In other words, argues Harris, the court argued from Pickles's general, in rem rights over the land to his specific, in personam entitlements against the mayor and council to act as he did. If the in rem rights were simply equivalent to the in personam rights, as the bundle theorist claims, the judgment expresses an uninteresting tautology; “Pickles is privileged to do this and the Corporation has no right to stop him because Pickles is privileged to do this and the Corporation has no right to stop him.”Footnote ¹¹⁰

The obvious query to raise here is: What about this objection is specific to open-textured rights? The judgments in cases decidable on precedent, where Harris has no objection to reducing the in personam rights to in rem rights, would be no less tautologous by this reasoning. This is our first indication that the “tautology” in question may not be especially problematic.

Let us look in more detail at the nature of a judgment of this sort. According to Harris, the giving of a verdict changes the question from open- to closed-textured: “The House having ruled as it did, the law as stated at any subsequent time includes a no-right/privilege relationship in such circumstances, and that will continue to be true unless the House of Lords overrules that decision or it is abolished by statute.”Footnote ¹¹¹ That is to say, the effect of a judgment in an open-textured case is just to recognize another stick.

Whether we consider this new stick to be created de novo by the decision (“judge-made”) or to have been in force since the dawn of legal time, albeit never previously elaborated (the “preexistence thesis”) is for current purposes irrelevant.Footnote ¹¹² The important question is why we must, according to Harris, interpret the decision as the assertion of a general principle of ownership that he admits to be subsequently decomposable into individual rights rather than as the recognition of an additional right that contributes to our after-the-fact ownership conclusions. Why, that is, must judicial reasoning be “top-down,” from ownership to sticks, rather than “bottom-up”?Footnote ¹¹³ Certainly, given the heterogeneous and jury-rigged nature of the “portmanteau” top-down ownership concept that Harris outlines, he cannot commend it to us on the basis of legal certainty or theoretical elegance.

The supposed basis, then, which must apply equally in the case of closed-textured questions, is that of tautology: reasoning from a (newly augmented) bundle of rights to a conclusion that merely restates the existence of that bundle would be both repetitious and, Harris claims, uninformative. Repetitious it might well be; but tautologies are uninformative only if we do not already possess the information they express. Since the term “water” refers to H₂O, the sentence “water is H₂O” means “H₂O is H₂O”; but the discovery of water's chemical makeup is no uninteresting triviality.Footnote ¹¹⁴ Similarly, even if we regard the decisions in Bradford v. Pickles, or International News Service, or Moore, as formally tautologous, they nevertheless express interesting and decidedly consequential discoveries about the extent and distribution of the proprietary interests assertible under the common law.