Property in Licences and the Law of Things

By Essert, Christopher | McGill Law Journal, March 2014 | Go to article overview

Property in Licences and the Law of Things


Essert, Christopher, McGill Law Journal


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). …

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