The new essentialism: reviving property as thing- ownership

It is clear not only that the ‘things’ deemed capable of being objects of property have changed quite markedly over time and vary from place to place, but that the very concepts of ‘property’ and ‘ownership’ as we now understand them are peculiarly modern and culturally specific. This has not prevented scholars from searching for a general concept of property that is applicable across time and between cultures and applicable to all resources. During the ascendancy of the bundle of rights conception, however, with its emphasis on contingency, malleability and context, abstract conceptual enquiries of this sort fell out of fashion. Even those working within the analytical jurisprudential tradition largely abandoned the search. In his famous essay on ‘Ownership’, for example, Tony Honoré adopted an approach that was more functional than analytical and suggested that what the relationships we generally understand as ‘property’ have in common is not an identifiable, transhistorical and transcultural essence, but a Wittgensteinian ‘family resemblance’ characterised by the presence of some, but not necessarily all, of certain incidents associated with ‘ownership’. In similar vein, Jeremy Waldron argued that property is a ‘contested concept’ and that the best we could hope to do was to identify particular conceptions of property historically located in a particular culture.

In recent decades, however, amidst an extraordinary outpouring of property scholarship, abstract theorising about property has come back into vogue. Much of this work suggests that property does indeed have a universal, transhistorical and transcultural ‘core’ or ‘essence’ centred on things and exclusion. There has thus emerged, alongside the renewed interest in conceptual analysis in private law scholarship more generally (the so- called ‘New Private Law’), a neo- Blackstonian ‘new essentialism’ in property scholarship. Much of this work has emanated from scholars working from within analytical jurisprudence and/ or law and economics. Among the common characteristics of this work are its tendency to make implicit assumptions about how our property system operates, its highly abstract nature and its tendency implicitly to endorse and/ or explicitly to defend and legitimate the private property status quo.