In 1992, in an article tellingly entitled ‘Too Much Property’,1 Lawrence Becker
told us that one of the things which property theorists might now avoid recapitulating
at any great length was the ‘now-standard conceptual apparatus of property
theory: Hohfeld’s analysis of rights, Honoré’s analysis of ownership, and typologies
of justificatory arguments’.2 ‘[W]e can reasonably now refrain from publishing
more than a swift, clear restatement of it.’ This conceptual apparatus, essentially the
idea that property is to be understood as a ‘bundle of rights’, such as the right to
possess, the right to use, the right to sell, and so on, appeared to present a stable
picture of the nature of property around which a consensus had formed. Individual
‘sticks’ in the bundle might draw differently on the different standard justifications.
For example, the right to possess a chattel3 might reflect a rights-based justification,
extending the right to bodily security, or more generally, autonomy, into the world
of tangible resources. On the other hand, the power to sell might better be justified
on utilitarian grounds, for example by the claim that the power to sell allowed
goods to move to their highest value user, thus enhancing allocative efficiency.
Becker also suggested that future work might ‘dispense with the search for a deep
justification of property rights (from metaphysics, moral psychology, natural rights,
developmental psychology, sociobiology, or whatever) and focus on the behavioural
surface: the observed, persistent, robust behavioural connections between various
property arrangements and human well-being, broadly conceived.’4 Whilst Becker
did not himself use the analogy, his paper strongly suggested that property scholarship
was approaching, if it had not already arrived at, a period of inquiry which in
Kuhnian terms one would describe as one of ‘normal science’.
In a somewhat different vein in 1993 Alan Brudner, commenting as editor of a
special issue on property theory published in the Canadian Journal of Law &
Jurisprudence, stated: ‘skepticism about private property as a stable concept is shared
by almost all of the . . . contributors. Some of them argue, while others assume, that
property is intelligible only as a social construct, as a perfectly malleable category
wholly at the service of collective goals.’