Green wood in the bundle of sticks: Fitting environmental ethics and ecology into real property law

As we have seen, the concept of property has of late divorced itself from the thing, to an abstraction that is built on Hohfeld's fundamental legal reasoning.

What, then, of the idea that property rights must be rights in things? Perhaps we no longer need a notion of ownership, but surely property rights are a distinct category from other legal rights, in that they pertain to things. But this suggestion cannot withstand analysis either most property in a modern capitalist economy is intangible.... Property rights cannot any longer be characterized as "rights of ownership" or as "rights in things" by specialists in property.150

Grey poses this quandary, which leads him to the conclusion that the concept of property is vacuous and has in effect disintegrated. We have gone, then, in less than two centuries, from a world in which property was a central idea mirroring a clearly understood institution, to one in which it is no longer a coherent or crucial category in our conceptual scheme. The concept of property and the institution of property have disintegrated.151

J.E. Penner goes even further in his criticism of the metaphor:

The claim I wish to make here is that this "dominant paradigm" is really no explanatory model at all, but represents the absence of one. "Property is a bundle of rights" is little more than a slogan. The use of the word "slogan" is not intended to be merely polemical. By "slogan" I mean an expression that conjures up an image, but which does not represent a clear thesis or set of propositions.152

Despite its critics, the bundle of sticks metaphor is so prevalent that its history and justification are often overlooked.153 The bundle of sticks is the result of the abstraction of property. It moved the definition of property from the things with which it had once connected. The development of the abstraction of property roughly parallels the development of the theory of regulatory takings.154 This is no accident; regulatory takings need an abstract basis to be justifiable.

The metaphor itself is also somewhat mixed-up. As derived from Aesop, the moral of the fable is "strength in unity," in that it represents metaphorically the strength in unity afforded by the coming together of sticks to constitute a bundle. Therefore, in building up the bundle with various rights there is the appearance of a whole greater than the sum of the parts; nevertheless, in the meaning of property there is recognition of the importance of even small vestiges of rights which existed in spite of the division of the bundle. The notion of the bundle as a metaphor based on Aesop's fable should accordingly be discarded.

The bundle concept is valuable for its notion of divisibility and accumulation of diverse and varying "sticks" that can amount to ownership. There seems to be no fixed formulation for when these incidents rise to the level that some people term ownership. This is perhaps the strong point of the metaphor, rather than a weakness, in that it makes such an inquiry fact-sensitive, and thus subject to the changes society has mandated. This point has been a source of confusion for courts that have tried to use the bundle as a basis for reasoning in various property cases.