"How can we most effectively weaken property rights?" - part 1 — VOICES for REASONVOICES for REASON

Do you remember the moment when you turned the key in the lock of your first automobile, or your first house? Can you recall the sense of exhilaration you felt? “This is mine, all mine, and nobody can tell me what to do with it,” you may have thought. Part of what you were experiencing was the pleasure of ownership—exclusive personal dominion over an important material value.

If you’ve ever felt such owner’s pride, then you should be aware that according to theories long dominant in law schools, you don’t really own a car or a house—you only have a “bundle of rights” pertaining to its use. For example, if you have land, your “bundle” might allow building on it, walking on it, cutting down trees on it, digging in it, growing plants on it, fencing it off, and so forth.

This way of looking at property might strike you as idle academic chat. But it has serious real-world implications for anyone who values their property rights. Consider a recent scholarly article called “Property Frames” by two law professors (Jonathan Remy Nash, of Emory University School of Law in Atlanta, and Stephanie Stern, of Chicago-Kent College of Law) who use the bundle theory to answer the startling question with which they begin their paper: “How can we most effectively weaken property rights?”

Stripped of modern economics parlance, the authors have written a guidebook on re-defining property rights as social permissions. It’s all about “framing,” which here refers to how property rights are regarded intellectually. The first step toward eroding any sense of personal attachment to rights, the authors say, is to avoid describing property as a “discrete asset” over which the owner has dominion. Such thinking can make “owners contemplate their property rights with a fierceness and inflexibility that clashes with the needs of modern society.” In place of dominion comes the bundle. “Under the bundle approach,” the authors write, “property consists of a bundle of sticks: each stick represents a right to occupy, use, sell, exclude others from, or deploy property in some way.”

Do you see how the cozy “bundle of sticks” metaphor softens the blow when society decides that the freedom to use your own property must be curtailed? After all, if you have a bundle of a hundred sticks and one is removed, you still have ninety-nine sticks. Doesn’t seem so alarming, does it? As the authors phrase it, “One who has an interest in a property asset in fact has a bundle of rights and correlative obligations and a less than complete set of sticks in the bundle does not negate ownership.” (Italics added).

Do you get that? Removing any single stick from your bundle does not “negate ownership.” But how about two sticks? Four sticks? Ninety-nine sticks? It doesn’t matter. On this “bundle” approach, your property rights remain intact no matter how much control government assumes over your property, no matter how paltry your remaining control might be. So if regulators decide to forbid the cutting of trees, well, you still have a right to climb those trees or sit in their shade. And if regulators forbid building on the property, you still have a right to take a stroll on your land every sunset.

In Part 2, I’ll discuss further implications of the “bundle of rights” approach.

Photo credit: flickr/Florian