Are Property Rights Usefully Regarded as Sticks in a Bundle of Rights?

by Don Boudreaux on September 14, 2011

in Law, Property Rights

My GMU colleague Dan Klein doesn’t like the now-familiar (at least to scholars in law-and-economics) characterization of property rights as being sticks in a bundle of rights – as in, for example, one of the “sticks” in the “bundle” of rights that I have as owner of a piece of land in Fairfax County, VA, is to grant to my neighbor an easement to cross my land; should I convey (by whatever means) such an easement to my neighbor, I’d transfer to him one of the “sticks” in my larger “bundle” of rights.

I’ve always liked the “sticks-in-a-bundle” conception.  (I think that I first encountered this idea, not in the legal literature, but in something that Armen Alchian wrote.)  But, as I say, Dan thinks this idea to be flawed, or at least misleading.

The latest (Sept. 2011) issue of Dan’s own Econ Journal Watch is a collection bundle of articles, on this very issue, by some of America’s leading legal scholars.  I’m eager to absorb it all.

Some of the questions that Dan tells me he’s especially eager to have debated include:

What do you make of this issue?  Do you think it is “merely” a definitional or semantic dispute of little importance?

If you do think it important, where do you stand?  Is describing property as a “bundle of rights” inimical to classical liberalism, or is it, as Richard Epstein contends, a bulwark for classical liberalism?

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{ 41 comments }

Economiser September 14, 2011 at 3:39 pm

First reaction: I think it’s just two different ways to think about the same thing. Like the particle/wave duality of light. Sometimes it’s easier to refer to property using an exclusionary view – it perhaps makes the libertarian case easier, but it also runs into practical limitations due to long-standing accepted government powers (e.g., the power to levy a property tax; the power of eminent domain (classical eminent domain, not the Kelo garbage)). How do you support an exclusionary view without butting up against property taxes or eminent domain?

At the same time, the bundle of rights view may be better for collectivists. It even sounds somewhat collectivist if viewed through their lens: the current “bundle of rights” is granted by the government, and can be changed or withdrawn by the government. At the same time, it’s much easier to think about modern contracts using the analogy of a bundle of rights. The easement over real property is a classic example. It’s also a very useful construct for financial contracts – carving up debt tranches in a structured product is very much like dividing a bundle of sticks.

Chris O'Leary September 14, 2011 at 4:50 pm

“The current “bundle of rights” is granted by the government, and can be changed or withdrawn by the government.”

This is what really bugs me about this analogy.

It sets up the idea that rights are given to us by the government rather than inalienable.

Zach September 14, 2011 at 6:40 pm

Chris – I also believe that certain human rights (life, liberty etc) are indeed inalienable. However to me, this post is addressing property rights, such as land ownership – and how we classify the attributes of those rights. I personally would not consider land ownership an inalienable right.

How quickly we forget that in the United States, land was absolutely granted by our government, albeit after forcibly taking that land from native tribes – the only ones who could rightfully claim an inalienable right to land, water etc.

kyle8 September 15, 2011 at 6:27 am

If property rights are not inalienable, then you really do not have any rights at all. What good is the right to free speech for instance if the government literally commands all of your goods and services? You are still a slave.

Property rights are every bit as important as any of the other freedoms we think of as being guaranteed by our constitution.

Harold Cockerill September 15, 2011 at 5:37 pm

Those native tribes should have done a better job of defending their property rights. You see what happens when you don’t.

Reverend Moon September 15, 2011 at 3:37 pm

Rights are granted by the consent of the people around you often codified by law. They are not granted by god. if that’s what you were thinking.

Harold Cockerill September 15, 2011 at 5:41 pm

I don’t know about God but I do know it was the architect of nature that gave me the right to defend myself. Thinking rights flow from your neighbors is a good way to end up with no rights at all.

Reverend Moon September 15, 2011 at 8:09 pm

What you are referring to has nothing to do with rights or property as they are commonly understood. You’re just making stuff up to suit your personal views. In fact I would say the opposite is true. Not understanding where rights come from is a good way to end up with no rights at all.
Don, can you please do a post on rights and property to educate your followers so they don’t sound so stupid.

Reverend Moon September 15, 2011 at 9:19 pm

Check out my hilarious Santa clause analogy below.

Steve September 14, 2011 at 5:54 pm

Don – I also like the “bundle of rights” description, particularly for describing the fee simple interest developed in the English Common Law. They were not rights granted by the Crown, but developed over hundreds years of the custom and practice “seisin” – whereby a peasant would move from being a tenant under the thumb of a feudal lord to owning a freehold interest in a piece of land. And, if I recall correctly, the Barrons forced the Magna Carta on King John in 1215 – not exactly voluntary.

James Hanley September 14, 2011 at 6:37 pm

I don’t really care which idea supports classical liberalism better, but the bundle concept is pretty damned empirically descriptive. Going back to Alchian, properly understood, the idea is not that government gives us these rights but that different societies have, as a matter of cultural, tradition, and the resulting political/legal institutions, recognized different bundles of property rights. There’s some great anthropological literature that supports that (sources now lost to my memory and library, unfortunately). For example some Polynesian cultures had private property in fishing boats, but somewhat limited in that if the owner chose not to use it that day, someone else could. And Iroquois of what is now the northeastern U.S. had private hunting grounds, which other persons could not use without permission, but which those others had a sort of easement over in order to reach their own private lands. And of course we are legally capable of leasing out particular aspects of our property to others, temporarily depriving ourselves of the use of those aspects–if that’s not a stick in a bundle, what is?

If one wants to insist on an ideological/philosophical claim about property, this bundle conception may be unsatisfying. But if one is interested in an empirical understanding of how the world actually works, I’m not sure how you avoid accepting it.

vidyohs September 14, 2011 at 7:00 pm

Lets compare the concept to another part of life.

Is my family a bundle of people, or a group of individuals?

To my way of thinking a bundle is something compacted and held together so that it can be used, moved, or stored as one unit.

I object to using the term bundle of rights for the simple reason it suggest that no right stands on its own.

Chuclehead September 14, 2011 at 9:27 pm

I agree with Richard Epstein, no mater what he says. You can’t win a agreement with that mind, and I pity the poor fool who tries.

jorod September 14, 2011 at 10:01 pm

How about a body of rights? If you cut pieces off, it becomes less healthy.

Michael E. Marotta September 14, 2011 at 11:06 pm

If you remove one stick, the bundle becomes weaker. Take away all the sticks and there is no bundle.

We may understand the world by analogy and metaphor. Onomatopoeia may be the foundation of language. But the map is not the territory. Rights are not sticks in a bundle. It is, however, a useful analogy for a specific purpose.

Just to note: we have ambiguous and ambivalent meanings for “rights.” Permissions acquired by exchange are not the same things as the inalienable attributes of volitional creatures.

morganovich September 15, 2011 at 9:06 am

my first impression is that this seems like an artificial and arbitrary distinction.

what difference does it make?

if you have a bundle of property rights or a single one, it’s the same thing in essence.

but, if we look at specific examples, you can see how “sticks” falls down.

the easement example is instructive this way.

if i grant you and easement to walk across my land, i have not “given you a stick:”. i still have the right to use the land as well or to plant flowers on it and still have liability for it as well.

this makes me look at the “sticks” idea as flawed.

i have granted you permission to use something to which i have a right in certain ways, but i have not ceded even part of the right to you. you can’t plant corn there or have a party.

the “bundle of sticks” makes it seem like i have some number of sticks (call it X) and if i give you one, i don’t have it anymore.

that’s clearly not the case with an easement to cross my property to get to the beach.

in such a case, the sticks analogy occludes more than it makes clear.

an easement is not analogous to it at all.

it implies that one or the other of us must own that stick, but it’s not true at all.

to make the analogy hold, you’d need to look at an easement as a complex derivative on a stick.

you have the option to walk on my land, but not liability (either civil or tax), nor any kind of actual ownership.

this sort of thinking rapidly gets as complex as the pre Copernican ideas on celestial spheres.

sure, you can plot the solar system that way, but it’s hideously and unnecessarily complex.

Troy Camplin September 15, 2011 at 10:56 am

Metaphors matter, as they bridge concepts, bringing things to light — but they can also mask things from view as well. A few things I see wrong with the metaphor:

1) can one distribute the entire bundle — meaning all the property rights within the bundle – to different people? Meaning, one person can own the land, but another can cross the land, while another has mineral rights, another has water rights, etc. While it is certainly possible for different people to own the land rights and the mineral rights, to be able to separate all of the bundle and distribute each to different people undermines the very idea of property rights.

2) If you allow someone to cross your land without shooting them for doing so, that doesn’t mean I have transferred a portion of the rights to the person. It means I’m not a complete jerk and that I have some social sense that allows me to live among human beings. I’m not sure that I really transfer any rights if I allow someone to borrow my hammer. I retain all rights. Is there a “right to use”? I suppose that is by definition tied up with ownership. However, if that is separable in any way, that allows one to argue for regulations — “We will let you own your property, but we will tell you how it can be used.” The problem is that if the right to use is part of a bundle that can be separated, then there is no reason to differentiate between allowing someone to borrow something and having a legal definition that allows governments to regulate that usage. This seems to argue for a more indivisible notion of property rights.

3) I have a paper coming out in which I argue that property rights emerged in the territoriality of lobe-finned fishes which are the ancestors of all land vertebrates. This makes property rights a very deep evolutionary element of our behavior — meaning we cannot get rid of property rights without causing serious social and psychological problems (as history has shown, too). Whatever metaphor we come up with should take this fact into consideration — that property rights are indeed foundational to this level. A bundle of sticks won’t cut it.

morganovich September 15, 2011 at 12:46 pm

troy-

an easement is not just “allowing”. it’s a contract, often irrevocable.

if i grant don an easement to walk through my yard to the beach, then sell the house to you, he keeps that right and you cannot withdraw it without his permission.

i think it’s much simpler to view this as a survivable contract tied to the property than a “stick” of rights.

the problem with the stick metaphor is it implies that there is only one in any case and only one of us can have it.

this is not so with an easement.

i grant you the right to cross my land, but i have not given it up. so do we both have the same stick? that seems like a por basis for metaphor.

Reverend Moon September 15, 2011 at 2:59 pm

You clearly do not understand what an easement is. You must forget the idea of property as a thing and think of it as a right instead. Then, it should make more sense to you.

Reverend Moon September 15, 2011 at 3:14 pm

For example when you buy a book you bought a right to exclusive use of that specific book. You did not have the right to copy it or do anything beyond the rights you purchased. You can likely buy those rights from the author or publisher or who ever owns them but that is not what you bought.
The fact that you bought a book doesn’t mean the publisher or author needs to wait till you give him back the book so he can sell it to someone else. it’s not the same stick
I hope that helps a bit.

Reverend Moon September 15, 2011 at 3:24 pm

Or better for this example would be to say that the stick did not exist before the easement was created. Then he attaches the easement stick with the positive right to his bundle. You attach the easement stick with the negative right to your bundle. the stick was added to the bundles not taken from one bundle and attached to another.

Reverend Moon September 15, 2011 at 3:26 pm

The stick is on both titles but opposites.

Reverend Moon September 15, 2011 at 3:30 pm

A lease, on the other hand, would be you taking the right of possession from your bundle and transferred it to the leaseholder. In that case you no longer have the right of possession in your bundle for the duration of the lease.

Reverend Moon September 15, 2011 at 4:44 pm

If you understand the concepts the bundle analogy is not, obviously, inconsistent. In the case of an easement you’ve transferred your right to exclude a particular owner of property(dominant tenement) from using a particular section of you your property to access the beach or whatever. So you can’t build a house where the easement is because you don’t own the right to exclude the dominant tenement from using that section of land. Which, building a house there would do.

You have transferred that right from your bundle to another person. But it makes sense to think of what the specific right is you are creating, in the case of an easement it is the right to exclude a specicific owner of property from traveling a section of your property, then subtracting it from your bundle and adding it to theirs. But you have to understand what right, specifically, it is that you are transferring from your bundle otherwise it won’t make sense.
So the owner of the property that is the dominant tenement wouldn’t exclude themselves from traveling that section of your land.

morganovich September 15, 2011 at 12:49 pm

troy-

also: i’m curious on the fish thing.

how are you establishing the difference between property rights and territoriality?

it’s quite different for a little fish to avoid the territory of a big fish for fear of attack, but that seems to be to be self interest, not rights.

the big fish may not acknowledge the territory of a small fish at all. what’s the basis for thinking he would respect the property of the other fish in some reciprocal fashion?

don’t they contest territory boundaries all the time?

Troy Camplin September 16, 2011 at 11:28 am

I am arguing that property rights have their origins in territorial lobe-finned fishes. As new layers of brain were laid down over the course of evolution, that territorial behavior is altered over time.

Nevertheless, humans contest territorial boundaries all the time. That’s why we have surveyors. We also develop contracts to help delineate those boundaries. Of course this is a mere extension of the lobe-finned fishes’ use of ritual to protect their territories. Ritual allows animals — and humans — to protect what is theirs without having to resort to violence. Even the “violence” of say a lion coming in to take over a pride from another lion rarely results in a fatal outcome. The violence is ritualized, so that the weaker lion will leave. The human use of language allows us to extend that even further, into things like deeds and contracts. But it is essentially the same thing. You just have to understand how humans do it, and not just assume because we’re not doing it exactly the same way as other animals that it’s completely different.

SaulOhio September 15, 2011 at 2:05 pm

I haven’t read anything from the symposium, yet, but I skimmed the contents.

My take right now is that property is defined as the right to keep, use, and control something. The “bundle of rights” is a description of a number of different things you have the right to do with that property, which can be separated from one another. Of course, this should only be done with the owner’s consent, such as an easement or selling mineral rights.

Mostly, property rights should remain bundled.

It will be interesting if reading the whole symposium might change my view on this.

Reverend Moon September 15, 2011 at 2:14 pm

It does not surprise me that people who comment here religiously don’t understand or disagree with the concept of property rights as a bundle of sticks.
Property is not a thing it is a right. Morganovich, an easement is property, it is a right that runs with the land. Land to which the benefit of a right is attached is the dominant tenement and land over which the eight is exercisable the servient tenement. It is an asset to the dominant tenement and a liability to the servient tenement. You’re thinking of a license. An easement is an interest in land less than an estate.
It’s interesting to me that people can talk of inalienable rights as if they don’t depend on the law. As if they are magically bestowed by god or something. Kyle8 is that how you think of rights because that’s what it sounds like you’re saying?

Economiser I would say that you have it backwards. Troy Camplin too. The Epstein article that follows the link Don published is pretty good at explaining why I think that’s so.

kyle8 September 15, 2011 at 5:19 pm

Yes I believe that it is most useful to think of rights as pre-existing and that instead of given by law, the law exists in order to secure the rights.

If rights are merely granted by action of law then it is perfectly moral for a people to vote to take away those rights from others

Reverend Moon September 15, 2011 at 9:15 pm

Just because there are presents under the tree, it doesn’t mean Santa Clause put them there.

Matt Bramanti September 15, 2011 at 5:27 pm

It’s interesting to me that people can talk of inalienable rights as if they don’t depend on the law. As if they are magically bestowed by god or something.

A bunch of smart guys I respect believed just that.

Reverend Moon September 15, 2011 at 8:11 pm

There is a difference between beliefs or wishes and facts.

Reverend Moon September 15, 2011 at 8:14 pm

How is it that your views account for slavery? If god bestowed on people the right to be free, or whatever rights you think exist in nature he sure did a shit job of enforcing those rights.

Reverend Moon September 15, 2011 at 8:30 pm

Very hilarious that you would point to the declaration of independence. Which is in fact about making into law, rights these men believed to be of great importance. God wasn’t there enforcing those rights so they would.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,”

That’s from the declaration of independence in case you were wondering.

Matt Bramanti September 15, 2011 at 2:15 pm

Troy, if you allow a neighbor to borrow your hammer, maybe you haven’t given up any rights. In informal arrangements like that, we generally understand that the deal is at your pleasure and the hammer is due on demand.

But that’s not how many (probably most) land transactions generally work. If you lease your hammer (or your house) to someone, you do give up rights. The other party gets to use the hammer or live in the house, *and you don’t.*

What worries me about the bundle metaphor is that it can be abused to steal sticks. If the state wants to ban, say, selling mineral interest separate from the parcel of land, they can justify it by saying “what are you complaining about? You still have a bundle.”

Troy Camplin September 16, 2011 at 11:30 am

Yes. That was what I was getting at.

Reverend Moon September 15, 2011 at 2:24 pm

Libertarians arguing for limits on your freedom to sell or lease interests in land. LOL

Reverend Moon September 15, 2011 at 2:35 pm

Vidyohs,
Way to use this forum to demonstrate how little you understand about the subject at hand. Keep up the good work.

Martin Brock September 15, 2011 at 3:04 pm

Sounds like something Mussolini would say.

http://en.wikipedia.org/wiki/Fasces

Anotherphil September 16, 2011 at 8:40 am

I HATE the bundle of sticks analogy.Rights aren’t mere posessions and aren’t severable. The Declaration of Independence captures the nature of rights well with the adjective “inalienable”. Rights were inherent and indefeasible, not to be denied either by external force-or voluntary sale or surrender.

Reverend Moon September 16, 2011 at 11:27 am

@ Anotherphil
It’s because you don’t understand the analogy about the bundle or what a right is. Do you comprehend what the declaration of independence is and why it was created?

I bet you take the bible to be a literal truth. Do you believe in Santa Clause?

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