Meredith Render, ‘The Concept of Property’

Abstract
This Article confronts the conceptualist/non-conceptualist divide in property theory. Specifically, the Article addresses the primary normative objection to the conceptualist account of property. In the course of addressing this criticism, the Article bridges an important gap in the literature and provides a new way of understanding the legal concept of property as distinguished from other types of legal arrangements.

The conceptualist/non-conceptualist divide centers on whether the legal concept of ‘property’ can be said to have criterial features – that is, features that make ‘property’ both unique and distinguishable from other legal concepts (such as contract). Conceptualists understand the concept of ‘property’ to include one or more criterial features. Most commonly, conceptualists understand ‘property’ to necessarily include the principle of numerus clausus, a common law rule that imposes a restriction on the forms of ownership. On the other hand, some non-conceptualist scholars have criticized the conceptualist emphasis on numerus clausus as a misplaced and as unduly formalist.

This Article demonstrates that the central normative concern raised by critics of the conceptualist account of property is unwarranted. Concerns that fall within the ‘realist critique’ of formalism do not obtain in the context of the specific type of formalism that contemporary property conceptualists embrace. This is because the function of form restriction is not to arrive at a correct or even a substantively justifiable classification of interests in a given dispute, but rather to arrive at a classification. Numerus clausus is first and foremost a coordinating tool. Rather than reflecting or directing deep normative commitments about the distribution of assets, form restriction primarily serves to sort interests into a finite (and therefore manageable) set of categories.

Render, Meredith, The Concept of Property (August 2017). University of Pittsburgh Law Review, Vol 78, 2017; U of Alabama Legal Studies Research Paper No 3099005.

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