The Idea of Property in Law

The Idea of Property in Law

The Idea of Property in Law

The Idea of Property in Law

Synopsis

In The Idea of Property in Law, Penner considers the concept of property and its place in the legal environment. Penner proposes that the idea of property as a "bundle of rights" - the right to possess, the right to use, the right to destroy etc. - is deficient as a concept, failing to effectively characterise any particular sort of legal relation, and evading attempts to decide which rights are critical to the "bundle". Through a thorough exploration of property rules, property rights, and the interests which property serves and protects, Penner develops an alternative interpretation and goes on to consider how property interacts with the broader legal system.

Excerpt

To say that we are subjects of a legal system, or are governed (in part) by a legal system, usually means that our behaviour is guided and constrained by a system of social institutions, such as courts, legislatures, local councils, and enforcement agencies such as the police. But there is another meaning for 'legal system' which frames a particular focus for an inquiry that legal philosophers typically get up to, that is, the systematic body of laws which legal institutions create, interpret, and apply. It is common sense to believe that we are subject to a number of different laws: criminal laws, laws about consumer sales, road traffic laws, laws about citizenship, and so on. But it is also common sense to understand that these laws interact with each other. For example, criminal laws interact with property laws: one can only steal property, and so in order to convict someone of theft we must be sure that a taking of property has been committed, rather than, say, the fraudulent acquisition of a valuable service like hotel accommodation. Tax laws obviously interact with laws about citizenship, property laws, and contract law (since certain contractual transactions are taxed).

But these two common-sense observations give rise to a puzzle. If, as seems true, laws systematically interact in obvious ways, how do we understand the proposition that there is a plurality of laws? Are there actually a number of different laws which in some sense stand alone and are independent of each other? Or is there simply a seamless web, or tangled mess perhaps, of rules, rights, policies, and principles? If we dare to say that there are a certain number of particular laws, what would we give as an example of a single law? It is almost certain that the example we give will be a rule that is (1) subject to particular exceptions, (2) dependant on other legal material for a definition of its salient terms and concepts, and (3) related to particular rules about the legal sanctions or remedies available. Take what looks like a simple, single law, the law forbidding murder. Such a law is framed in statutes in various ways, often as a definition, followed by a direction as to punishment. So, for example, one might find something like: 'culpable homicide is murder where the person who causes the death of a human being means to cause his death. Every one who commits murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.'

How many laws have we here? Have we one law respecting murder, which incorporates the legal rules concerning causation, the legal definition of homicide, the rules about the mental element requirement for criminal . . .

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