If I am asking who owns the public fishery then WHAT IS OWNERSHIP?
Hohfeld credited with BUNDLE OF RIGHTS approach
Penner - property is a RIGHT OF EXCLUSIVE USE
Katz - property is the exclusive right to SET THE AGENDA for the owned thing (also Claeys, 2009)
Lametti - property is about our RELATIONS THROUGH OBJECTS OF SOCIAL WEALTH
Often Hohfeld's model is joined with Honore's INCIDENTS OF OWNERSHIP
Although Penner (1996, 754-767) argues that Hohfeld's and Honore's theories are not compatible
Penner (1996, 713) cites Becker (1977) as arguing that bundle of rights model is now the dominant paradigm and property scholars should move on to work out particular problems in property law
But does bundle of rights really have paradigmatic status? There are plenty of critics of it, although it is generally accepted by those in the field of property law, especially by those that don't deal specifically with the definition of property.
What is approach?
Hohfeld (1913) wrote about all forms of rights and not just property in particular - argued that all 'rights' can be characterized as a set of jural relations between people; opposites and correlatives
Honore (1961) described ownership as a complex of rights comprising "the right to possess, the right to use, the right to manage, the right to the income of the thing, the right to the capital, the right to security, the rights or incidents of transmissibility and absence of term, the prohibition of harmful use, liability to execution, and the incident of residuarity" (Penner, 1961, 732)
Penner (1996, 722-724) - theory can be split into two versions
Substantive
Conceptual
Modest - property is a bundle of rights to a thing rather than a unified right to a thing (Penner, 1996, 734)
Diasaggregative - "each possible "use" of one's property under the broadest notion of use possible, [is] itself a property right if it can form the subject of a transaction" (Penner, 1961, 734)
"The "bundle" is a bundle of criteria for the application of the term "property", which criteria are not to be regarded as necessary and sufficient conditions for applying the term. Accordingly, no subset of the elements of the bundle is found in every instance of property." (Penner, 1996, 738)
What is Penner's model? -
Criticism of Hohfeld/Honore model- Penner argues that on either understanding of the bundle model it is too wide and too loose to give any clear guidance as to what property is (1996, 714)
Criticism of Penner's model
Is ownership the same as property?
Lametti (2003, 333) notes that the two terms are often used interchangeably "especially where ownership is taken to be the paradigmatic property relationship" as with the bundle approach or an exclusionary approach.
This model focuses on the duty of all non-owners to exclude themselves from the property - which has been called a BOUNDARY APPROACH (Katz, 2008)
"Property is a right to things; it is not the things themselves. Property is a normative relation between an individual, or co-owners, and others which has as its focus and justification the exclusive determination of the uses to which a thing may be put. (1961, 801)
Katz (2008)
Lametti (2003) argues that an exclusion approach fails to recognize the relations we have with resources: "If Penner's definition is correct, then the same property relationship exists with all types of resources, a position that his criterial method and metaphor appear to eschew. Thus Penner, despite his claims, does not take the idea of 'thingness' far enough." (345) In addition, he argues that by focusing on "the individual interest protected by exclusivity, Penner "does not take full account of the implications of property's social aspect (347).
Why does this question matter?
Lametti (2003, 377) argues that how we answer these questions will affect how we see ownership and property, which in turn will affect how we treat it: "The dominance of a rights-based view of property makes legal and lay observers think about private property in a certain way, organizing our thoughts around he idea of full-blooded ownership and setting it up as the paradigmatic way of relating to objects of social wealth. We thus see property as a set of relatively absolute rights. The consequence of this is that the duties/obligations of an owner in respect of a scare resource are overlooked.
Lametti (2003, 326) describes his redefinition of property as "contrary to the dominant rights-based paradigm. So perhaps we have reached the stage in Kuhn's progress of science of awareness of anomalies in the dominant paradigm and the emergence of new competing theories to better explain property
What is Lametti's model?
Criticism of Lametti's model
Criticism of Hohfeld/Honore's model - Lametti argues that Hohfeld's model makes no distinction between property relations and any other relations and so that there is no room for the object. "Hohfeld's structure, and arguably the bundle picture, is utterly devoid of content" (339). This means that the bundle metaphor cannot tell us anything about different types of property (338-339).
"Private property is a social institution that comprises a variety of contextual relationships among individuals though objects of social wealth and is meant to serve a variety of individual purposes. It is characterized by allocating to individuals a measure of control over the use and alienation of, some degree of exclusivity in the enjoyment of, and some measure of obligation to and responsibilities for scarce and separable objects of social wealth." (326)
This focus on social relations and obligations/duties is important for O3 of PhD
Private Property or Property?
Lametti (2003) refers to Harris' (1996) 'ownership spectrum' for property and argues that "private property is about more than ownership entitlements (358). The term 'ownership' comes with "baggage" (359) so that the focus on ownership as interchangeable with property or as the key facet of property means that we make certain assumptions about property. This leads us to overlook our relations with the resource and the social dimension of property (360).
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How does this question affect my PhD?
Criticism of Hohfeld/Honore model
Criticism of Katz's model
What is Katz's model?
Katz suggests that the bundle model doesn't recognize the existence of the concept of ownership (277) - This is elaborated on by Gray & Gray (1998,35) in terms of the common law not recognizing absolute ownership.
Katz (2008) argues for an EXCLUSIVITY model based on the understanding that "ownership is an exclusive right [but] it does not always depend for its exclusivity on protecting the boundaries of the thing" (289-290)
Instead "Ownership's defining characteristic is that it is the special authority to set the agenda for a resource." (290). The ability to exclude others is just one element of ownership under Katz's model, rather than its defining characteristic.
Katz herself acknowledges that harmless trespass could provide a problem for her model, although she argues that it can be explained on the basis of imputed intentions of property owners (299-300). Her arguments regarding (Canadian) case law seem a little tenuous.
Katz argues that a boundary approach categorises ownership as "nothing more than the space left for use of the thing by the owner once all others are kept out" (282) and that this is insufficient to tell us much about the owner's position (285).
In addition, she argues that her agenda setting model of property better explains some of the rules of property law, such as the rule against perpetutities (307-309). She also explains the law of adverse possession in terms of agenda setting, although this does not apply to English law (290-291).
She does note, however, in introducing the boundary approach that it "avoids many of the weaknesses of a bundle-of-rights approach by recognizing the coherence of the idea of ownership and thus its proper role in judicial reasoning" (2008, 276)
Katz's 2008 article does not deal explicitly with the bundle model, focusing instead on critiquing the boundary approach of scholars like Penner.
Lametti argues that objects of property that are of great value "either because of [their] importance to a given society at a given time, because of [their] scarcity, or for some other reason, [are] allocated with certain limitations and duties that will ensure [their] property use" (366). This is based on a responsibility model of property as per Gray and Gray (1998)
Claeys (2009, 622-623) argues that it is actually three different approaches
I would argue yes as it appears to be accepted by a large number of scholars and practitioners. eg O'Connor (2011, 55): "Although not without its critics, Hohfeld's jural relations model and the associated 'bundle of rights' metaphor has become the dominant understanding of property in the social sciences, and in legal theory.
Heller criticizes the bundle approach as unable to understand the "thingness" of property and to distinguish between rights and bundles of rights and between private and non-private property (Alexander & Penalver, 2012, 3)
Claeys (2009, 633) argues that exclusion "excludes others not from the thing but from the owner's dominion over the thing's use; therefore 'agenda setting' is more appropriate than a boundary approach.
Worthington (2006) argues that the divide between property and private law (obligation) has been eroded to the point that there is no longer any meaningful distinction between the two.