The elusive concept of property leads to the difficulty of defining what is property, and thus creates complexity for courts to use the concept of property as an analytical tool for deciding cases.2 In this paper I will discuss a frequently cited concept of property - the 'bundle of rights' theory of property formulated by theorist Wesley Hohfeld3 and complimented by theorist A.M. Honore4 and assess whether or not property is a bundle of rights. Section I of this paper will examine the difficulty of defining property and the sources of its elusiveness. Section II will examine what the 'bundle of rights' theory is and how property can be seen as a 'bundle of rights'. Section III will examine how the 'bundle of rights' theory is limited in defining the concept of property. Section IV will examine the effect that conflicting conceptions of property have on court decisions about property. Specifically I will use three cases to illustrate the effects of differing conceptions of property - Yanner5, Wily6 and Moore7.
Wesley Comb Hohfeld described property as a bundle of rights. Hohfeld presents us with an analytical framework that splits rights into four different jural relationships. The main aim of his schema is to present an analytical description of rights. Simply put, Hohfeld aimed to provide a conceptual understanding for our use of right and duty in practice, thus facilitating a better understanding of the nature of our rights. His framework precludes informing us what rights, duties are or should be or what their moral foundation is or what is necessary for something to count as a right, duty etc. He does not, therefore, say anything about the justification of rights. Specifically, Hohfeld's table presents a distinction between four different sets of juridical relationships. (See Figure 1).
Figure 1: Hohfeld's Table of Entitlements and Burdens:
The table above presents four sets of Hohfeldian jural relations. The top row contains four types of Hohfeld's legal rights, while the bottom row indicates the legal position entailed for the other party in each of the types of right. These are jural correlatives. On the other hand, the pairs of diagonally opposite elements in the first two columns (duty/liberty and right/no-right) and those in the last two columns (liability/immunity and power/disability) are jural opposites, i.e. two legal positions that negate each other. (Lazarev 12:1-2). All of the Hohfeldian rights (in the top row) represent entitlements against a specific person. In a sense, each Hohfeldian right resolves only one issue between two specific parties.
We start with a simple discussion of rights. One has to be very specific here. He who has the right must be able to pinpoint another person with a correlative duty either in terms of shield or assistance. Hohfeld's explained that every right is a relation between no more than two persons To say that X has a legal claim-right means that he is legally protected from interference by Y or against Y's withholding of assistance with respect to X's project Z. Conversely, Y, who is to abstain from interference, or is required to provide assistance in