The Property Prism

Abstract

LINK TO ABSTRACT The “bundle of rights” metaphor has played a large role in framing the way we think about a number of critical issues regarding property. It has been invoked in controversies about the scope of constitutional protection for property; it has defined the terms of debate about the meaning of the concept of property; and it has underscored the complexity of property as an institution for the organization of resources. The bundle metaphor, however, has been more successful in framing questions than in answering them. The metaphor suggests that property is complicated and that it changes, but it does not tell us when, why, or how. Designed to emphasize the malleability of property, the metaphor itself is too malleable to offer clear guidance in resolving any important questions. I suggest that a better metaphor is that of a prism. A prism takes on a different color from different angles, and so does property. I will suggest four angles from which property may be viewed, each corresponding to an “audience” of property rules. From the “stranger” angle, property is a very simple “keep out” rule. From other angles, it is a complex of rules decipherable by legal specialists but not by laymen. From still other angles, it partakes of rules and norms that vary from case to case and which are of interest only to insiders. The property prism, unlike the bundle, does not suggest that the constituent features of property are infinitely variable without regard to who is viewing it. The property prism also pushes us further down the path toward understanding the institution of property, by suggesting we start by asking who is looking at it and why. The “bundle of rights” metaphor apparently entered into property discourse from constitutional law. The first documented use of the metaphor appears in a nineteenth century treatise about eminent domain (Lewis 1888, 43). It was later Discuss this article at Journaltalk: http://journaltalk.net/articles/5735

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