A Research Agenda for the History of Property Law in Europe, Inspired by and Dedicated to Marc Poirier

Proposes the following research agenda: (a) understanding the relation between property and long-term economic change by focusing on the relation between property law and what historians call social property relations; (b) understanding property concepts and ideas in the context of the larger ideological and philosophical ideas that shaped the immediate world of jurists and property lawyers; (c) looking beyond the single, contingent episodes of the history of property law and identifying longterm patterns and regularities in the way jurists conceptualized property; and (d) understanding European property culture in its many entanglements with the non-European world

Common Ownership and Equality of Autonomy

In recent years, common ownership has enjoyed unprecedented favour among policy-makers and citizens in the United States, Canada, and Europe. Conservation land trusts, affordable-housing co-operatives, community gardens, and neighborhood-managed parks are spreading throughout major cities. Normatively, these common-ownership regimes are seen as yielding a variety of benefits, such as a communitarian ethos in the efficient use of scarce resources, or greater freedom to interact and create in new ways. The design of common-ownership regimes, however, requires difficult trade-offs. Most importantly, successful achievement of the goals of common-ownership regimes requires the limitation of individual co-owners’ ability to freely use the common resource, as well as to exit the common-ownership arrangement. This article makes two contributions. First, at the normative level, it argues that common ownership has the potential to help foster greater equality of autonomy. By equality of autonomy, I mean more equitable access to the material and relational means that allow individuals to be autonomous. Second, at the level of design, this article argues that the difficult trade-offs of common-ownership regimes should be dealt with by grounding the commitment to equality of autonomy in the context of specific resources. In some cases, this resource-specific design helps to minimize or avoid difficult trade-offs. In hard cases, where trade-offs cannot be avoided, this article offers arguments for privileging greater equality of autonomy over full negative freedom

Abuse of Rights: The Continental Drug and the Common Law

This Article deploys a comparative approach to question a widely shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian invention, absent in the common law. Drawing on an influential strand of functionalist comparative law, the Article identifies the functional equivalents of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late-nineteenth and early-twentieth century in fields as diverse as water law, nuisance, tortious interference with contractual relations, and labor law. The Article investigates the reasons why in the United States, contrary to continental systems where rules limiting a malicious or unreasonable use of one\u27s right coalesced into a unitary category of abuse of rights, these rules remained largely nonintegrated. Rationalization of these nonintegrated reasonableness tests and malice rules, I argue, was achieved by means of a novel, unitary style of reasoning, hardly fitting the traditional portrait of nineteenth-century Classical orthodoxy, rather than by means of conceptual integration. Further, the Article suggests that abuse of rights\u27 potential as a tool for social reform was consistently defused. In the United States, rarely and timidly did courts deploy malice rules to effect progressive distributive outcomes. And even when they did, they invariably resorted to the individualistic language of modern private law

Abuse of Rights: The Continental Drug and the Common Law

This article explores a crucial, though often neglected, episode in the history of modern private law: the nineteenth and early twentieth century debate over the concept of “abuse of rights”. In broad terms, the formula evokes the idea of an abusive, because malicious or unreasonable, exercise of an otherwise lawful right. The doctrine was applied in a variety of subfields of private law: property, contract, and labour law. It was conceived as a response to the urgent legal questions posed by the rise of modern industrial society: the limits of workers’ right to strike, the limits of industrial enterprises’ property rights on land vis a vis the rights of residential neighbours, the limits of a landowner’s property right on crucial economic resources, such as water or coal-land. This article uses a comparative analysis of European and American cases and legal writing to interrogate a widely-shared understanding of the impact and significance of abuse of rights, neatly articulated in H. C. Gutteridge’s passage. First, it challenges the notion that abuse of rights is a peculiar “invention” of civil law jurists, absent in the common law. Second, it questions the idea that abuse of rights operated as an effective social “corrective” preventing the “manifest injustices” allowed by modern individualist private law

The Fundamental Building Blocks of Social Relations Regarding Resources: Hohfeld in Europe and Beyond

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 standardly 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. The crux of the problem, we suggest, is a fundamental mischaracterization of the Hohfeldian analysis of property—by both critics and defenders. The “bundle of rights” label obscures from view a distinct—and more fundamental—dimension of Hohfeldian analysis, namely that property is a social relation. And as or more important than getting right the precise content of each of these claims is understanding their inter-connection: the “social relations” claim is the fundamental platform of the analysis, generating in its turn the “bundle of rights” claim as a conclusion. Indeed, if a short moniker were wanted for Hohfeldian analysis, much preferable to the “bundle of rights” would be the “relational” conception of property.Moreover, each of these components of Hohfeldian analysis—social relations and bundle of rights—is fundamentally distinct from a third set of points with which they are commonly fused, concerning the dematerialization of the objects and interests of property. It is the blurring of what are three distinct lines of analysis—what we may call dephysicalization, disaggregation and dematerialization—that has led many to the conclusion that Hohfeldian analysis results in the “disintegration” of property, rendering it no longer a distinct concept or field of law. An outcome embraced by some (neo-Hohfeldians) and decried by others (neo-Blackstonians). This conclusion, we believe, is both too hasty and imprecise. Imprecise because it fails to locate the contest between Hohfeldian and neo-Blackstonian conceptions of property as pivoting around not one, but at least two and perhaps three, points of contrast, tracking each of the central but distinct lines of Hohfeldian analysis: dephysicalization, disaggregation and dematerialization. It is too hasty because the dephysicalization of property, as a social relation, poses no problems; and while disaggregation and dematerialization may indeed lead to troubling—if very distinct—forms of disintegration, the fault lies less with the specific content of Hohfeld’s claims than with a failure, post-Hohfeld, to follow through on his underlying method and structure of analysis in a constructive fashion. And so the solution to disintegration, we urge, is not a “rethingification” of property but rather its “reintegration”—by carrying forward the method of Hohfeldian analysis in two constructive directions: (a) a resource-specific answer to the question of “what is property about?” and (b) in answer to “what does property consist of?” an architectural analysis of the basic entitlements that serve as the fundamental building blocks of all property forms

Urban House with Big Window

A family living in Cambridge, Massachusetts asked Turin-based architects Alessandro Armando and Manfredo di Robilant to overhaul their gabled, 19th-century house. In addition to improved insulation, the clients wanted privacy, but also views to the street

Property and Democratic Deliberation: The Numerus Clausus Principle and Democratic Experimentalism in Property Law

First-year law students soon become familiar with the numerus clausus principle in property law. The principle holds that there is a limited menu of available standard property forms (the estates, the different types of common or joint ownership, the different types of servitudes) and that new forms are hardly ever introduced. Over the last fifty years, however, property law has changed dramatically. A wealth of new property forms has been added to the list. This dynamism in the list has remained largely unexplored and is the subject of this Article. This Article focuses on a selection of recently created property forms, which share an important quality. They establish mechanisms of democratic and deliberative governance for resources as diverse as natural resources, scarce urban land, historic landmarks, or cultural institutions. The study of these property forms sheds new light on how the numerus clausus principle works in practice and on why it exists in the first place. It also discloses a fundamental transformation in the way we think about the institution of property and the benefits we may draw from it. We have come to believe that, for some critical resources that involve public interests, use and management decisions should be made not by a single owner, whether private or public, but through a process that is democratic and deliberative. This Article examines sympathetically but critically this aspiration to deliberative democratic governance in property law

Property\u27s Building Blocks: Hohfeld in Europe and Beyond

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?The crux of the problem, we suggest, is a fundamental mischaracterization of the Hohfeldian analysis of property—by both critics and defenders. The “bundle of rights” label obscures from view a distinct — and more fundamental — dimension of Hohfeldian analysis, namely that property is a social relation. And as or more important than getting right the precise content of each of these claims is understanding their inter-connection: the “social relations” claim is the fundamental platform of the analysis, generating in its turn the “bundle of rights” claim as a conclusion. Indeed, if a short moniker were wanted for Hohfeldian analysis, much preferable to the “bundle of rights” would be the “relational” conception of property.Failing fully to absorb the relational character of the Hohfeldian conception of property has led many to the conclusion that Hohfeldian analysis results in the “disintegration” of property, rendering it no longer a distinct concept or field of law — an outcome embraced by some (neo-Hohfeldians) and decried by others (neo-Blackstonians). This conclusion is both too hasty and imprecise. Imprecise because it fails to locate the contest between Hohfeldian and neo-Blackstonian conceptions of property as pivoting around not one, but at least two and perhaps three, points of contrast, each tracking a central but distinct line of Hohfeldian analysis. Hasty because while disintegration is to be decried, the apt solution is not a “rethingification” of property. Rather, its “reintegration” by carrying forward the method of Hohfeldian analysis in two constructive directions: (1) a resource-specific answer to the question of “what is property about?” and (2) in answer to “what does property consist of?” an architectural analysis of the basic entitlements that serve as the fundamental building blocks of all property forms