Defining Ownership

For most of the past century, scholars in the Anglo-American legal tradition have been skeptical of the view that legal ownership is a matter of possessing any single right. They have advocated the view that ownership is a “bundle of rights” arising from individual judicial decisions in widely diverse cases (e.g., the by definition equivalent to appealing to ownership, and so the concept of ownership constrains judicial reasoning.

But while the boundary theory properly recognizes that there is a concept of ownership that constrains legal decisions, it fails to explain crucial features of ownership. Indeed, we might better characterize the view as a theory of nonownership. Its focus is on the position of nonowners, defined in terms of a general owner is the only one at liberty to use the object after the exclusion of others.

While there is a grain of truth in the boundary theory inasmuch as ownership is an exclusive right, the boundary theory wrongly assumes that what it means for ownership to be exclusive is just that others generally have a duty to exclude themselves from the object owned. However, there is a distinction the owner’s agenda-setting authority. This, rather than the boundary theory’s “exclusivity,” is the essence of ownership.