Foundations of property (How useful is the idea of ownership to an Essay

Foundations of property (How useful is the idea of ownership to an understanding of property in law) - Essay Example He and his students turned the legal profession decisively towards the second. Hohfeld fired a barrage of influential arguments that sunk the old property is things conception within the legal profession.2 Hohfeld argued that lawyers had often been misled by the contrast between the rights in rem and rights in personam to think that property rights were actually rights "against things," which is absurd since practically all rights are against people. Hohfeld and his followers objected that regarding property as things leaves intellectual property unaccounted for. They also complained that regarding property as a thing led to a misplaced focus on physical possession of an object instead of on the complexes of rights that form the stuff of modern property law.3 And most importantly, Hohfeldian analysis was thought to give the fatal blow to property is things by proving it incapable of handling divided or multiple ownership. Bruce Ackerman describes the standard "divided control" object ion to property is things and the legal orthodoxy that formed around it: "Instead of defining the relationship between a person and 'his' things, property law discusses die relationships that arise between people with respect to things. More precisely, the law of property considers the way rights to things may be parceled out amongst a host of competing resource users."4 This thinking is pivotal for understanding the concept of property and ownership, their essences and characteristics. From the critical perspective, it is widely emphasised in literature that the property as concept can be easily confused with property-regarding actions. For instance, there is an evident the danger of confusing property with possession, which ideas are as different from each other as marriage and mating. Property and possession change can occur at the same time. For instance, there are cases where someone acquires a thing by taking hold of it and where a transfer is affected by something "changing hands," and where a person abandons property by letting it go. Yet changes in possession are neither necessary nor sufficient for changes in ownership, because property and possession have no necessary relation. A thief, for example, has possession but no property. As Bentham puts it, the relation that constitutes property "is not material, it is metaphysical": "a piece of stuff which is actually in the Indies may belong to me while the dress I wear may not. The aliment which is incorporated into my very body may belong to another, to whom I am bound to account for it."5 The property relation is not a physical relation between a person and a thing, but a normative (moral or legal) relationship between persons with respect to things. Property, unlike possession, is a matter of rights. One only loses track of the distinction sometimes because the two concepts frequently go together in everyday life. For instance, property and possession are easily conflated because possession is often conventionally or legally connected with the establishment of property rights. By laws, the first person to possess an unclaimed object usually (but not always) becomes the owner of the object; and a