Ownership as Authority, Dan Fuller

Abstract (click to view)

‘Ownership is a bundle of rights.’ That maxim is often repeated and as often denied. It  has formed the central focus of debates about the meaning of ownership for decades. That focus has meant even its critics tend to define ownership in one way or another as the maximal set of entitlements a person can have in respect of others in relation to a thing. Yet this conception of ownership as a ‘maximal set’ has little analytical or normative value. A mere empirical or logical definition of it sheds little light on the nature of other property rights, their distributions and derivations. Those can be illuminated only by an analytical or normative theory tying the members of the set and explaining how they contribute and relate to its ‘maximal’ character. Yet once we have this wider explanatory theory, the ‘maximal set’ becomes mostly redundant as a distinct concept and so then does ownership. To give the concept of ownership a distinct analytical or normative meaning, we must turn our focus away from the particular, individual owner and their outward-projecting relations with others. We must look more broadly at the thing that is owned and its life, the persistent position of authority over it and the wider social justificatory function of that authority. This compels us to return to the lay concept of ownership that property law too quickly rejects. Ownership in this light is the position of private normative authority over the life of a thing. The owner thus occupies a central social position in respect of the things they own, rooting the networks of property rights in respect of those things and infusing those networks with their personal authority.