Property Rights: A Re-Examination

James Penner
Oxford Legal Philosophy

Ranging over a host of issues, i roperty Rights: A Re-Examinationr pinpoints and addresses a number of theoretical problems at the heart of property theory. Part 1 reconsiders and rejects, once again, the bundle of rights picture of property and the related nominalist theories of property, showing that ownership reflects a tripartite structure of title: the right to immediate, exclusive, possession, the power to license what would otherwise be a trespass, and the power to transfer ownership. Part 2 explores in detail the Hohfeldian theory of jural relations, in particular liberties and powers and Hohfeld's concept of 'multital' jural relations, and shows that this theory fails to illuminate the nature of property rights, and indeed obscures much that it is vital to understand about them. Part 3 considers the form and justification of property rights, beginning with the relation an owner's liberty to use her property and her 'right to exclude', with particular reference to the tort of nuisance. Next up for consideration is the Kantian theory of property rights, the deficiencies of which lead us to understand that the only natural right to things is a form of use- or usufructory-right. Part 3 concludes by addressing the ever-vexed question of property rights in land.


Part One: The Complex Structure of Legal Title to Property
1 The 'Bundle of Rights' Picture of Property Revisited
2 Two Nominalisms: Moral-Political Nominalism and Scientific Reductionist Nominalism
Part Two: Hohfeldian Analysis and Legal Property Rights
3 Hohfeldian Liberties
4 The Problems with Powers
5 Multital Jural Relations
6 The Transmissibility of Rights and the Power to Transfer Title
Part Three: The Form and Justification of Legal Property Rights
7 Exclusion, Use and Usability
8 The Justification of Property Rights
9 Rights in Land
A Conclusion of Sorts


James Penner is the Kwa Geok Choo Professor of Property Law at the National University of Singapore. He previously taught at Brunel University, the London School of Economics, King's College London, and University College London. He joined the Faculty of Law at the National University of Singapore in 2013. He has established himself as one of the world's leading experts in the philosophy of property and the law of trusts, and writes widely in the areas of private law and the philosophy of law. He has been a visiting professor in China, Canada, Belgium, Australia, and the United States.