Thinking more deeply about property rights

New Deal 2.0

One of the critiques that comes out of these arguments is that the picture of property rights as a vertical relationship between a person and an object, one where the issue at play is whether the person’s right over the object is “deserved all the way down,” is flawed, or at least insufficient. Property is really a horizontal set of relationships between people; it isn’t just your control of an object but your control over others with respect to that object. The fundamental right of private property, of course, has always been the power to exclude others. But in the 1910s, a law professor named Wesley Hohfeld formalized property “rights” into a series of four capacities: “right,” “privilege,” “power,” and “immunity.” They contrast with four incapacities: “duty,” “no-right,” “liability,” and “disability” (see here or here for more). Each type of property right is predicated on being able to force others to respond a certain way — you have certain immunities while others have disabilities in response, certain powers while others have liabilities, and so on.