In-Rem Property in Adam Smith's Lectures on Jurisprudence

Abstract

For decades, both economists and legal scholars have regularly used the metaphor of a ‘bundle of rights’ to describe property. In recent and growing literature, the bundle formulation has been the target of a number of critiques, some of which point to Adam Smith, among others, as a source for an alternative perspective on property. This paper examines Smith's work and argues that Smith is an appropriate authority and focal figure for a traditional, in-rem view of property. It illustrates how Smith's usage of concepts in the civil-law tradition, his appreciation for Hume, and especially his unique theory of the impartial spectator, together make clear that Smith's understanding of property is irreconcilable with the modern bundle formulation.