Bundle-of-Rights Theory as a Bulwark Against Statist Conceptions of Private Property

Richard A. Epstein

Econ Journal Watch, 2011, vol. 8, issue 3, 223-235

Abstract: Many modern writers have criticized the notion that property consists of a bundle of rights in some determinate thing as a weak conception that invites increased government control over private property, especially real estate. This article rejects that conception for the following reasons. First, the notion of property as a bundle of rights long antedates the Progressive era, when it lay at the center of both Roman and common law views of property. Second, the bundle-of-rights theory does not imply that private property has no determinate meaning. To the contrary, traditional systems of private property all had a coherent bundle of rights that included exclusive possession, use, development and disposition of property that belonged to the original owner who acquired by first possession. Thereafter, the division of property rights created by voluntary transactions, such as leases or mortgages, may have made it somewhat more difficult to identify "the owner," philosophically. But it had the far greater advantage of allowing for gains from trade. The use of this system, moreover, implies strong protection against state control, so long as it is understood that the state must pay for each stick in the bundle that it takes and is never allowed to say that it can take one or more sticks for free so long as the original owner keeps some residual sticks.

Keywords: Property; bundle of rights; exclusion; legal realism; police power; takings; John R. Commons (search for similar items in EconPapers)
JEL-codes: A1 K00 K1 (search for similar items in EconPapers)
Date: 2011
References: View references in EconPapers View complete reference list from CitEc
Citations: View citations in EconPapers (9)

Downloads: (external link)
https://econjwatch.org/File+download/501/EpsteinSept2011.pdf?mimetype=pdf (application/pdf)
https://econjwatch.org/756 (text/html)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:ejw:journl:v:8:y:2011:i:3:p:223-235

Access Statistics for this article

Econ Journal Watch is currently edited by Daniel Klein

More articles in Econ Journal Watch from Econ Journal Watch Contact information at EDIRC.
Bibliographic data for series maintained by Jason Briggeman ().