Bundle-of-Rights Theory as a Bulwark Against Statist Conceptions of Private Property
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Many modern writers have criticized the notion that property consists of a bundle of rights in some determinate thing as a weak conception that invites increased government control over private property, especially real estate. This article rejects that conception for the following reasons. First, the notion of property as a bundle of rights long antedates the Progressive era, when it lay at the center of both Roman and common law views of property. Second, the bundle-of-rights theory does not imply that private property has no determinate meaning. To the contrary, traditional systems of private property all had a coherent bundle of rights that included exclusive possession, use, development and disposition of property that belonged to the original owner who acquired by first possession. Thereafter, the division of property rights created by voluntary transactions, such as leases or mortgages, may have made it somewhat more difficult to identify “the owner,” philosophically. But it had the far greater advantage of allowing for gains from trade. The use of this system, moreover, implies strong protection against state control, so long as it is understood that the state must pay for each stick in the bundle that it takes and is never allowed to say that it can take one or more sticks for free so long as the original owner keeps some residual sticks.