Good morning, my dear friends, from a shining August day in Nottingham. Please allow me to share with you my joy, a kind of bliss I have never experienced till now as mum. My son, Cosmin, just had published his first law research work in the prestigious Canadian Journal of Law & Jurisprudence, issued by Cambridge University Press. Cosmin was doing his master’s degree at Faculty of Philosophy, University of Bucharest, when submitted the work. The confirmation was his last year Christmas present. Yet today I can share with you my happiness. I want to pay him warmest congratulations for his achievement after thousands hours of research.
When state regulations prevent owners from certain uses of their property, is this action of the state a taking of property which requires compensation? One way of answering this problem, within a framework viewing property as a bundle of rights, is to inquire into whether the incident of use is an essential element of the bundle making up the property. Given the difficulties with figuring out what is essential and what is not, I propose an alternative solution, which does not give up the bundle-of-rights framework, but which, while assuming all incidents to be equally essential, it concentrates, instead, upon the legal entitlements conveying those incidents. I begin by arguing that while the incident of possession may be expressed by a right to exclude, the incident of use is expressed by a Hohfeldian liberty, and then I consider the consequences of this argument for the question of regulatory takings. I argue that while the liberty to use does not render the incident of use meaningless (at least, insofar as regulation of property use is concerned), there is nonetheless a significant distinction between transgressing a right and transgressing a liberty, and this implies that what it takes for an infringement of the right to exclude to be translated into a taking of the (whole) property is less than what it takes for the infringement of the liberty to use to be translated into a taking of property. As I show in the paper, we can achieve this result either by means of an argument from ‘constitutional residue’ or by means of an argument from the specification of constitutional rights.
May have a beautiful day, wherever you are! And keep going for your passion, cause your talents might serve the world to better insights.