The Society of Legal Scholars 2012 Annual Seminar

“The Philosophical Foundations of Property Law”

Lisa Austin Possession and the Distractions of Philosophy

This paper argues that many types of philosophical argument distract us, rather than provide clarity, in relation to the role that possession plays in the law of property. The philosophical strategies I have in mind include the natural law tradition’s fascination with state-of-nature stories as well as Dworkinian claims that law is a matter of interpretation that must make reference to a general theory of justice. By either imagining away the concrete details of our legal system and institutions (through invoking a state of nature) or by passing too quickly to weightier ideas of justice and fairness (through Herculean judgment), these strategies distract us from seeing the centrality of law to a proper understanding of possession.

To show this, I use the well-known distinction between justifying a particular action within a practice and justifying a practice as a whole. Puzzles about whether some particular action counts as “possession” and why this might be so are questions of the former kind and puzzles about why we might want to recognize and protect possession at all are questions of the latter kind. The key point is that different kinds of answers are suitable to the different questions. In other words, it is not clear at all that answering the question of how one should understand the elements of the practice of possession has anything to do with answering the question of why we think the practice of possession as a whole is justified.

Answering questions about the elements of a practice should therefore make reference to the practice itself. The law of possession has multiple aspects but three stand out: it can refer to the relationship between a person and a thing (factual possession), it can refer to rights (the right of possession), it can refer to the question of to whom these rights can be attributed (possessory title). My claim is that to properly understand how these three aspects work and are related, we also need to bring to the fore the specifically legal aspects of this practice that help to constitute it. In this regard I look to two different legal ideas. The first is Lon Fuller’s understanding of the principles of legality, which I argue can help us understand the role that factual possession plays in determining title conditions. The second is Kant’s understanding of omnilaterality as a legal relation(which I will sever from his broader project of political justification), which I argue can help us understand the logical structure of the right of possession. Taken together these legal ideas illuminate that possession is at its core a legal practice and that references to pre-legal thought experiments (like the state of nature) or extra-legal values (such as political morality) are unhelpful in understanding its particular doctrinal features.

Peter Benson Between Contract and Property

In this paper, I explore the meaning and the basis of the distinction between in rem and in personam primary rights. In contrast to the approach taken by Hohfeld, I argue that this distinction should be anchored in, and cannot be properly understood apart from, the idea of ownership and more specifically the modes of acquiring ownership. At the most basic and abstract level, there are two modes of acquisition: independent (by the act of the appropriator alone) and transactional (by the joint bilateral acts of two). I illustrate these two kinds of acquisition through a discussion of first possession and contract. This genetic account of the in rem/in personam distinction in terms of the two different categories of acquisition and relation to others clarifies the real juridical meaning of the distinction. Thus I suggest that in rem entitlements arise directly only through independent acquisition and under the principle of first possession. Moreover, independent acquisition is the core of property acquisition, if we equate property entitlements as necessarily and intrinsically in rem. Transfers, by contrast, are immediately always in personam. Contrary to standard assumptions, I also argue that the idea of ownership animates both kinds of relations – property and contract -- where, following Harris, ownership is defined in terms of an ownership spectrum involving open-ended, self-seeking use-privileges and control-powers with respect to an object and to the exclusion of others. At the same time, there are basic qualitative differences between the modalities of ownership in property and those in contract. I examine these qualitative differences in some detail and suggest the ways property and contract are related under the unifying and organizing idea of ownership. In this regard, I argue that contract is intrinsically a completion of the idea of ownership that animates independent acquisition. To fill out this analysis of in personam entitlements, I explore briefly the juridical significance of the transferability of contractual entitlements and their status as assets having what are conventionally viewed as proprietary effects. Here I consider assignability of contract rights, the tort of interference with contract rights, and, most importantly, the transactional basis of equitable proprietary rights (drawing on the work of Smith, McFarlane and originally Ames). Equitable property rights are not a third species of entitlement but rather bring out the full juridical significance of in personam relations in terms of the organizing idea of ownership.

Alan Brudner Private Property and Public Welfare

This essay takes up the question whether any coherent theory of the relation between property and the state can generate the paradoxical combination of rules contained in the takings clause of the U.S. Constitution’s Fifth Amendment. That clause permits the state forcibly to take holdings from their rightful owners for ordinary public ends, yet places the state under an indefeasible duty to compensate the person so deprived. So we have a takings power unconstrained by necessity (suggesting that property is mediated by the public interest), yet constrained by an absolute duty to compensate (suggesting a property prior to the public interest). I argue that Hegel’s theory of the relation between property and the state understands the takings clause. Indeed, I argue that, relative to a company of philosophers including a welfarist (of whatever hue), Locke, and Kant, Hegel is uniquely able to understand the takings clause. If successful, the argument will imply that a theory of the state almost every liberal finds repulsive is required to explain a constitutional rule almost every liberal finds attractive. It will therefore give liberals a reason to rethink their antipathy to Hegel's state.
Eric Claeys Productive Use in Acquisition, Accession, and Labor Theory

Acquisition rules assign ownership over an unowned tangible asset to the first person who establishes control over the asset. By contrast, accession principles assign ownership over the asset to the owner of some larger asset connected closely enough with the asset. This chapter focuses in particular on the ratione soli principle, which deems tangible assets to be accessories to the land to which they are affixed and therefore the property of the land owner.

Acquisition rules and accession principles are supposed to pose difficult challenges for labor-based theories of property. Accession cases ignore or defy the prescriptions of labor-based arguments. Although acquisition cases purport to rely on labor arguments, the arguments seem not only inconsistent with accession cases but also incoherent on their own terms.

This chapter propounds an interpretation of labor theory that, on one hand, justifies accession and acquisition rules and, on the other hand, avoids the shortcomings commonly associated with other renditions of labor theory. The chapter relies substantially on interpretations of John Locke’s theory of property developed in Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (1991), and A. John Simmons, The Lockean Theory of Rights (1992). The interpretation is called ‘productive’ labor theory, for in it ‘labor’ is construed to be a moral power to acquire external assets and to transform them to produce goods or consequences that contribute to a prosperous life. So understood, the moral power to labor productively can legitimate and justify both acquisition rules and the ratione soli principle, each generally in its proper place.

Larissa Katz Privity and Force in Property Law

Actual possession outside of ownership matters in most legal systems. The puzzle is why this is so. The conventional view is that actual possession is the foundation of rights to possess of varying strengths. But that view introduces a massive threat to the idea of ownership as the central organizing force in our system of property: if courts administer a system of multiple rights to possess a thing, distinguished just on the basis of temporal priority, the concept of ownership is really beside the point.

In this paper, I develop an alternative to this view of the “relativity of title” that not only better accounts for the central role of ownership in law but also provides a much fuller and more nuanced account of the significance of actual possession by non-owners. Actual possession is not the foundation of property rights but it is not a legal nullity either. A central task of this paper is to show how actual possession enables non-owners to shelter things behind their rights to the person and serves too as the foundation for relationships of privity. Once we account for privity and force, which prevent a later possessor (P2) from unmasking a prior possessor (P1) as the mere wrongdoer she is, the appropriate response in law comes more clearly into view. It is not “first in time, first in right”; rather, it is in pari delicto potior est conditio defendentis or “let the chips fall where they may.”

Finally, I argue that mere possession is not the foundation of right but it does confer proprietary authority of a kind: a possessor occupies the office of ownership on a temporary and emergency basis. She is in other words the “owner pro tem,” bound to act as steward of the office—with none of the personal benefits (e.g. privileges and powers of use, consumption, sale, etc.) but many of the burdens of ownership. As soon as the true owner reappears or possession is lost, for whatever reason, the owner pro tem is out of office with no basis in right to be reinstated (and must rely on the ban on force or estoppel arising from privity to prevail against a P2.)

Dennis Klimchuk Property and Necessity

In this paper I will consider the prospects of the view that one who uses (and perhaps uses up) another’s property to save her life commits no wrong whatsoever—not merely a justified or excused one—though she is under an obligation to compensate the property owner for the costs she has imposed. She commits no wrong, on the view I am interested in, because the owner's right to exclude falls short of the point at which he could prevent others in serious peril from using his property. One way to put the claim is to say that the right of necessity is a property right. This idea goes back at least to Aquinas, who claimed that stealing to save one's life is not theft, properly speaking, but I will draw on Grotius's account of necessity and the account of property in which it is embedded. The main idea I will take from Grotius is that while the regime of private property is a matter of convention there are constraints on the form that convention may permissibly take. The constraint at work in necessity is the principle that the right to exclude may only be as strong as is necessary to realize the ends for which sake we adopt the regime of private property. The world, on Grotius's account, is in a sense each of ours even after we have chosen to divide it, and this limits the ways in which positive law may permissibly enable us to make others vulnerable through our claims to the exclusive use of parts of it. This view seems right to me, and I will defend it against some important objections.
Matthew Kramer Why the Interest Theory of Legal Rights is Superior to the Will Theory in Application to Rights of Property

For decades, the paramount alternative to the Interest Theory of legal rights has been the Will Theory. This essay seeks to strengthen the position of the Interest Theory by discrediting its chief rival, especially in application to rights of property. Of course, as some of my past writings have contended, the Will Theory is plagued by many weaknesses apart from the ones explored in this paper. For example, the Will Theorists have committed themselves to accepting (1) that children and mentally unsound people do not have any rights; (2) that nobody ever has a right not to be murdered; (3) that workers do not hold any rights under typical minimum-wage laws; and (4) that unwaivable fundamental legal protections are not rights at all. Those and other unpalatable implications of the Will Theory have elicited disfavor among many people who reflect on the nature of rights and right-holding. Still, the proponents of the Will Theory can retort that those implications seem objectionable only if the state of being endowed with a legal right is question-beggingly assumed to differ from what the Will Theory maintains. Such a retort is not very persuasive as a means of winning adherents to the Will Theory, but on its own terms it is correct. Hence, because the present essay’s main critique of the Will Theory proceeds from premises that do not beg any questions against that theory, it is particularly telling. It goes further than most previous critiques in rebutting prominent versions of the Will Theory on their own terms. Instead of trying to transcend the debates between Interest Theorists and Will Theorists, the present essay aims to show that those debates are important, and it seeks to make progress toward settling them with specific reference to the law of property.

Brian Lee Average Reciprocity of Advantage

The notions of "average reciprocity of advantage" and "implicit in-kind compensation" have been invoked by both courts and commentators to justify reducing or eliminating monetary compensation paid to owners of private property when the government either takes their property or imposes regulations which restrict that property's use. Two versions of such compensation are alternately invoked – specific compensation allegedly derived from the benefits provided by the project for which the property was taken, and systematic compensation said to have been provided by the advantages of living in a society which undertakes projects or regulations of this sort. This paper critically examines both of these justifications for non-compensation. I argue that attention to their logic brings into sharper focus the need to distinguish between compensation for wrongs and compensation for losses, the significance of property’s distinctive trans-generational aspects, and the dignitary dimension of property ownership.  
Ben McFarlane
& Simon Douglas
Defining Property Rights

It is a striking feature of common law property systems that the nature and extent of property rights are determined, in large part, through the law of torts. The purpose of this paper is to scrutinise the approach of the courts when determining the nature of the duties that property rights impose on the rest of the world. We examine the usefulness of particular analytical models, in particular those of Hohfeld, Honoré and Harris, to understanding the practical operation of the law in this area. We also argue that wider conceptual lessons as to the nature and definition of property rights can be drawn from the manner in which property rights are protected.
Stephen Munzer Property and Disagreement

Recent disagreements over that nature of property show no sign of abating. I argue that recent philosophical work on verbal disagreements and on the nature of concepts puts us in a position to understand more accurately some recent controversies over property and to resolve at least some of them.

Of course, some property disagreements are entirely substantive, and here the philosophical literature I explore is not helpful. However, some verbal and conceptual disagreements are partly substantive, and in such cases it would be unwise to dismiss them as ‘merely’ verbal or conceptual. Following Chalmers (2011), I distinguish between narrowly verbal, broadly but only partly verbal, and wholly verbal disagreements. My analysis concentrates on a disagreement, which I characterize as broadly but only partly verbal, between Penner and me on whether property has an essential feature, viz. the right to exclude. I argue that our dispute is far from trivial, and that on both analytical and metaphysical grounds my view is superior to his.

Some disagreements over property turn on the nature of concepts, their individuation, and the possibility of using some concepts without fully understanding them. A disagreement between Harris and Honoré on the one side and me on the other has to do with some conceptual problems about the nature of relations. I contend that once the logic of relations is correctly understood, the disagreement between us is, though not trivial, of modest significance. Of far greater philosophical interest is a disagreement between Penner and me, partly because it shows that some disagreements have both verbal and conceptual dimensions, and partly because the account of concepts that he employs does not do the philosophical work he needs it to do. I suggest, firstly, that he and I seem to use different concepts of property, and, secondly, that if there is a unique concept of property, possibly neither of us has fully mastered it.

The chief recommendations of my paper are:

  • Root out disagreements that are wholly verbal.
  • Clarify and, if possible, settle by careful argument disagreements that are both substantive and broadly but only partly verbal.
  • If a disagreement is at once major, partly substantive, and partly conceptual, determine whether the parties are using the same concept of property.
  • If the parties are using a single concept of property, determine whether one or more parties fail to understand that concept completely.
  • Achieve, whenever possible, mastery of a concept so that disagreements which pivot on incomplete understanding of the concept of property can be eliminated.
  • Consider whether it is both possible and useful to make a concept of property more determinate. One has got to ask what the practical point of greater determinacy would be and the costs of achieving it.

James Penner The Mystery of Transfer

In many areas of law (such as the operation of the bona fide purchaser/holder in due course rules) it is essential to distinguish between cases where A's right to p (an object of property) is transferred to B, such that B now has the right to p, and cases where the extinction of A's right to p is causally related to the creation of B's new right to p. The transfer of possession of a tangible is not conceptually puzzling. My handing you a drink with the intention that I will not take it away from you again, and your taking it, realising my intention, is a perfectly obvious and untroubling example. (I suppose this 'analysis' could be sharpened up a bit, but I also suppose the idea is clear enough.) But what does it mean to say that I transfer my right to the drink to you? This paper is an investigation of that transaction, the transfer of a right. I am not entirely sure what the right way to think about this is, but here is a popular, though wrong, way: B's right to the drink arises by operation of law whenever A puts B in possession of it with the intention no longer to vindicate his prior right to it (a sort of directional abandonment of the drink by A followed by B's 'appropriatio'’ of it). People who think this – in particular unjust- enrichment theorists in the UK who think that property rights are a 'response' to legal ‘events’ such as contracts of sale or mistaken payments – cannot make sense of the notion of title. The whole notion of title turns on the idea that A's right comes to be B’s right (the very same right), not just that the object of A's right can come to be the object of B's. Another clearly hopeless way of coming to terms with the transfer of a right is via Hohfeld’s 'multital rights' thesis, since A's bundle of rights could never come to be B's bundle of rights: A's bundle will necessarily include A's right to exclude B and necessarily not include B's right to exclude A, and B's bundle will necessarily include B's right to exclude A and necessarily not include A's right to exclude B.

I am concerned that the paper will show that all of the ways I can think of to conceive the transfer of a right fail to work, and will not provide one that does. Even so, that would be a start.

Arthur Ripstein

Possession and Use

My aim in this paper is to examine the relation between possession and use in the concept of property. Many writers find it difficult to see how property could be of any interest or importance if it was not related in a fundamental way to an owner's use of the property. At the same time, doctrinally speaking, the right to exclude is often said to be the fundamental or even the sole organizing norm of property law. In what follows, I will develop a conceptual argument for the priority of exclusion – which I will refer to by the term "possession" – over use. Possession, as I shall articulate it here, is the formal precondition of use, but does not depend upon the particularities or actuality of use. But I shall go further, and argue that the sense in which possession, and so use, both figures in the law and matters cannot be explained except by reference to the concept of exclusion. Rather than having the right to exclude others so that you may use your property, your property is useful to you because it is exclusively yours. The only interest in use that the law of property protects is specific to owner and explicitly contrastive: it protects the owner’s interest in being the one to use the object, as against others. That is just to say it protects an interest in exclusive use.

Carol Rose The Psychology of Property

Property is often associated with a number of psychological states that are attributed to the property-owner. Most (though not all) of these states are favorable - for example, property has been said to enable the property-holder to develop a personality and to launch personal projects in the world; to offer a refuge for creative activity; to render the property-holder independent of the whims of others; to enable the property-holder to engage with the political world, and so on. Another psychological state widely attributed to property is economic: property is said to induce the owner and would-be owner to work, plan and invest in economic activities. This paper will describe these various psychological states associated with property ownership, but its main focus is on the psychological state associated with being a non-owner. Recent scholarship stressing the "in rem" character of property raises this issue: if property is good against "the world," what is the psychological state of "the world" that enables property regimes to flourish?

Non-owners' minimal duty to keep off the property of others itself rests on some kind of psychological state. Game theorists, in describing property as a Hawk/Dove or Chicken game, suggest that the dominating emotion driving the non-owner is fear, but this paper will argue that fear does not carry a property regime far, and indeed raises some doubts about the analogy of property to a Hawk/Dove game. The paper will also explore other explanations of the non-owner's psychology including reciprocity and magical thinking, and others, but will be content to some degree to leave the non-owner's psychological state as a mystery.

Irit Samet Some Strings Attached: The Morality of Proprietary Estoppel

In this paper I set out to find what Lord Hoffmann once called ‘the moral values which underlie the private law concept of estoppel’. More precisely, I want to look for the justifying principle that underlies the doctrine of proprietary estoppel (PE). The function of PE, I argue, is to enforce a moral obligation to compensate another person (R) for the way in which he changed his position to his detriment in reliance on your representation, or give him a timely warning not to rely on it. I call it LPA (for Loss Prevention Assurance). The LPA obligation is versatile in its mode of acquisition; that is, one can either intentionally enter a relationship of which the LPA is the constitutive obligation, or be placed under the obligation as a result of her representation even where she never intended to assume any duties thereby. This versatility, I argue, can greatly help us to understand why the legal enforcement of this obligation, namely PE, operates in the way it does. In this paper I will focus on the voluntary mode of the LPA obligation, as I believe that its great explanatory potential for the legal doctrine has been unduly neglected.

The paper argues that the state is justified in enforcing this moral duty for two reasons: one is that by doing so, the law protects and fosters the valuable practice of assuming LPA commitments, thus securing the benefits that the practice can hold for both O and R. The second is that it would correct the harm done to the disappointed R. This dual justification for a state enforcement of LPA obligations, as empowering O and protecting R, can explain why the legal rule that sets to do the job, i.e. PE, is particularly vigilant in guarding R’s rights. Thus, even if the courts many times award R his expectation value, this should only be done as a necessary measure to ensure that R is fully compensated for his reliance loss. In that way, while the interpretation I suggest can be largely reconciled with the results in most of the case law, it rejects the language of ‘promise’ in which much of the case law is cast, suggests a significant change in the baseline for the remedy, and supports a minimalist approach to the award of proprietary remedy.

Henry Smith Emergent Property

TThis chapter will show that reductionism is surprisingly widespread in property theory, because a wide range of theories fail to take sufficiently seriously the difference between legal concepts and their real world consequences. Or, to borrow from the philosophy of language law has both and intensional and an extensional aspect: we might attain the same set of real-world consequences by a variety of conceptual routes. Even when these routes – concepts, intensions – lead to the same extension, they may be very different in terms of information costs. At the extreme, we can compare the holistic property afforded by fee simple ownership, and the collection of rights (and other legal relations) that make up the bundle. The disaggregated bundle has always appealed to the legal realists and their successors, who were aggressive anti-conceptualists. Realsist and their successors have attempted to bring legal concepts as close as possible to sets of consequences. But other theories too dwell on the purposes property serves and pay insufficient attention to the reasons why the concepts and other parts of property law might not fully reflect property’s purposes directly. In this chapter, I will argue that that general legal concepts play a crucial role of lowering information costs, and that recognizing this economizing role of property concepts allows us to reconcile various positions on some of the key issues in property theory, including, in addition to conceptualism, the proper role of formalism, functionalism, and holism. I apply the information cost perspective to the perennial problem in property theory of the nature of in rem rights: to whom are in rem duties owed and what do duty bearers have to know about their duties – and what is the relation between these two questions? If we keep distinct how property delineates rights, how duty holders process their duties, and what the consequences are of the legal relations making up property, then we can give an account that preserves the right-duty structure while explaining its coarse-grainedness relative to its purposes.
Jeremy Waldron To Bestow Stability upon Possession: Hume's Alternative to Locke 

It is often assumed that any alternative to the view that property is the "top-down" creation of the law or the state or the community acting collectively is broadly Lockean in character. Locke's theory of property is a sort of paradigm of a bottom -up approach to the constitution of property. But in this paper I explore a bottom-up theory of a quite different sort: the theory propounded by David Hume in Book III of A Treatise of Human Nature. Hume's theory has quite a diffeent shape. It is still a bottom-up theory, but it has a number of advantages over Locke's conception. It is less demanding of historical information. It is less morally demanding. And it offers a clearer field to understand the way in which top-down and bottom-up elements of property are combined.