In contemporary American legal scholarship, scholars debate how best to conceive of and analyze property. Some scholars maintain that property rights can only be conceived of as bundles of rights, others that property rights consist of rights to exclude, and still others that property constitutes an institution realizing a wide range of different and incommensurable values. This Article offers a different conceptual and analytical perspective. It argues that property concepts resemble in important respects the concepts that represent clocks, keys, money, and other artifacts. Like other artifacts, property rights are created to perform characteristic functions. Those functions give prominent property rights and concepts their structure.
The Article applies that insight to Anglo-American property law. It studies two prominent and complementary concepts in property law. One is the concept representing absolute ownership of an ownable resource; the other is the concept representing easements, riparian rights, and many other proprietary interests strong enough to be called ‘rights’ but still considerably weaker than the rights associated with ownership. These rights and others can be explained and reconciled to one another as instances of property concepts structured to perform a common artifact function. That function is the facilitation of people’s reason-based interests in using resources. The Article identifies the elements for the ownership-based and the more capacious concepts of property. And it shows how these function-oriented concepts apply to: property in land; aerial trespass disputes; appropriative rights; tenancies in common; mortgages; covenants running with the land; the defense of custom for trespass to land; nuisance; and basic principles of common carriage or public accommodations law.
Claeys, Eric R, Property, Concepts, and Functions (March 10, 2018). George Mason Legal Studies Research Paper No LS 18-04.