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Liberal Property and the Power of Law: Response to a Critical Notice by James Penner
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This article argues that a liberal theory of property rights can help us resolve a century old debate about a foundational aspect of the trust, namely, the nature of the beneficiary's interest. According to orthodoxy, the beneficiary has a (weak form) of proprietary right to the trust res. But proponents of this view found it hard to defend it from attacks by Maitland and his successors who argue that central aspects of the beneficiary's right imply that the beneficiary's rights should be classified as a personal right against the trustee. The reason for their failure, we argue, is the misguided picture of property rights, as essentially the right to exclude, which they share with proponents of the obligation theory. Liberal property theory, by contrast, gives pride of place to divided ownership, of the kind exemplified by the trust, and accounts for all aspects of the beneficiary's right.
In the study and the practice of the law, our constant problem is: what legal relations are the result of facts that occur; or, starting from the other direction with a given set of legal relations (such as a contract, or a debt, or the ownership of land) our problem is: what facts will operate to cause such a results? One may take either starting point; and indeed for the best results, it is necessary to take both, alternately working forward and back, correcting and amplifying our necessary tentative conclusions. In the present article, the starting point will be the contractual relations themselves, leading back to a consideration of some of the facts and intermediate relations that various forms?
The bogeyman of institutions and theories that make a place for community in property law is the "Blackstonian conception" of property, based on Blackstone's famous identification of property with "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." Yet, as anyone who has even skimmed Blackstone's Commentaries quickly realizes, it is clear that the great expositor of the common law did not believe that this absolutist and individualist conception squared with the actual institution of property found in English law. Replete with descriptions and justifications of doctrines that recognized and enforced a complex web of individual and community interests in land and other resources, Blackstone's account seems much closer to the "bundle of rights" approach popularized by the American legal realists than to the "absolute dominion" view associated with his name. Why has exclusive dominion as a model for property, then, come to be associated with Blackstone, of all people? This Article seeks, first of all, to explain why Blackstone would first characterize property as "that sole and despotic dominion," and then go on to illustrate, over several hundred pages, the falsity of this definition. The primary goal of the Article, though, is to examine the ways in which Blackstone was invoked by later jurists as an authority for property-law propositions. In particular, the Article examines how Blackstone has been cited by English and American courts and writers, whether in connection with the "sole and despotic dominion view" or rather in support of doctrines more in keeping with a more complex view of property. Finally, it proposes an answer to the question set out in the title, identifying the historical context and motivations for the identification of the absolute, individualistic view of property with Blackstone in particular.
Property as Artifice: Hume and Blackstone
- Frederick G Whelan
Frederick G Whelan, "Property as Artifice: Hume and Blackstone" in J Roland Pennock &
John W Chapman, eds, Property: Nomos XXII (New York University Press, 1980) 101 at 119.
Book Review of A Liberal Theory of Property by Hanoch Dagan" (2022) 18:2 International Journal of Law in Context 241 at 243-44; Cathy Sherry
- Cathy See
- Sherry
See Cathy Sherry, "Book Review of A Liberal Theory of Property by Hanoch Dagan" (2022)
18:2 International Journal of Law in Context 241 at 243-44; Cathy Sherry, "Does
Discrimination Law Apply to Residential Strata Schemes?" (2020) 43:1 UNSWLJ 307 at 338.