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This essay defends the thesis that the common law of property exhibits an internal unity worthy of moral respect. There are three distinct elements to this claim, each of which may be elucidated through a contrast with the position it opposes. First, the unity we seek in the law of property is an internal one. This means that we unabashedly seek property law’s own unity, regarding artificial constructions as a defect of interpretation rather than its normal product. We do not set out in advance the underlying ground for the possibility of faithful interpretations of legal practice; for that ground will emerge as the unifying theme of property law and so must be methodically drawn from the object rather than baldly asserted beforehand. Nevertheless, it is possible to indicate at the outset how an internalist understanding of property law will differ from interpretations that are constructionist, or that impose on the object a unity alien to it.
I would like to thank Thomas O’Malley for his research assistance and the Social Sciences and Humanities Research Council for its generous financial support of this project.
1. See, however, Alan, Brudner, “The Ideality of Difference: Toward Objectivity in Legal Interpretation” (1990) 11 Cardozo L. Rev. 1133.Google Scholar
2. Contrast the economic analysis of law, for which “the true grounds of legal decision are concealed rather than illuminated by the characteristic rhetoric of opinions.” Richard, Posner, Economic Analysis of Law, 3rd ed. (Boston: Little, Brown, 1986) at 21.Google Scholar
3. The prime, contemporary example of such an approach seeks to unify the common law on the basis of the goal of efficient resource allocation; see Posner, supra, note 2. There are, however, other examples. Margaret Radin views property law as a means for realizing a certain vision of human flourishing in community; see “Property and Personhood” (1982) 34 Stan. L. Rev. 957;Google Scholar “Market-Inalienability” (1987) 100 Harv. L. Rev 1849;Google Scholar “The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings” (1988) 88 Col. L. Rev. 1667 at 1687–96.Google Scholar Frank Michelman reinterprets aspects of takings jurisprudence from the standpoints of welfare maximization and of Rawlsian distributive justice; see “Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law” (1967) 80 Harv. L. Rev. 1165.Google Scholar
4. For an analysis of the impediments in the common-law process to the development of efficient rules see Michael, Trebilcock, The Common Law of Restraint of Trade: A Legal and Economic Analysis (Toronto: Carswell, 1986), at 395–407.Google Scholar
5. See, for example, George, Priest, “The Common Law Process and the Selection of Efficient Rules” (1977) 6 J. Leg. Stud. 65;Google Scholar John, Goodman, “An Economic Theory of the Evolution of the Common Law” (1978) 7 J. Leg. Stud. 393.Google Scholar
6. Richard, Posner, “Utilitarianism, Economics, and Legal Theory” (1979) 8 J. Legal. Stud. 103;Google Scholar Richard, Posner, “The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication” (1979) 8 Hofstra L. Rev. 487.Google Scholar
7. Joseph, Singer, “The Reliance Interest in Property” (1988) 40 Stan. L. Rev. 611 at 623–37;Google Scholar Duncan, Kennedy, “Form and Substance in Private Law Adjudication” (1976) 89 Harv. L. Rev. 1685 at 1728–31.Google Scholar
8. This is the approach of Ronald Dworkin; see Law’s Empire (Cambridge, Mass.: Belknap Press, 1986), ch. 7.Google Scholar
9. Our approach thus differs from that offered in Ernest, Weinrib, “Right and Advantage in Private Law” (1989) 10 Cardozo L. Rev. 1283 Google Scholar Peter, Benson, “Abstract Right and the Possibility of a Nondistributive Conception Of Contract: Hegel and Contemporary Contract Theory” (1989) 10 Cardozo L. Rev. 1077,Google Scholar both of which seek the unifying principle of private law in an undifferentiated normative foundation, namely, the empty universality of personhood. Although these essays purport to give an account of Hegel’s theory of “abstract right”, they are really Kantian in inspiration and merely use Hegel as a source for an abstract right considered apart from the Hegelian whole.
10. See Hart, H.L.A. “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L. Rev. 593 at 594–600.Google Scholar
11. Supra, note 8 at 68–76; see also John, Rawls “Justice as Fairness: Political not Metaphysical” (1985) 14 Philosophy and Public Affairs 223.Google Scholar
12. See Hegel, G.W.F. Phenomenology of Spirit, trans. Miller, A.V. (Oxford: Clarendon Press, (1977) at 52–57.Google Scholar see also The Logic of Hegel trans.Wallace, (Oxford: Clarendon Press, 1892) paras. 79–82.Google Scholar
13. Hegel, G.W.F. Hegel’s Philosophy of Right, trans. Knox, T.M. (Oxford: Clarendon Press, (1967).Google Scholar The point of this essay, however, is not to give an expository account of Hegel’s theory of law but rather to offer and defend an interpretive account of the common law of property.
14. For a clear statement of this position, see Thomas, Holland The Elements of Jurisprudence, 11th ed. (Oxford: Clarendon Press, 1910) at 1–13.Google Scholar
15. See Felix, Cohen “Transcendental Nonsense and the Functional Approach” (1935) 35 Col. L. Rev. 809;Google Scholar Rudolf, Von Jhering “In the Heaven of Legal Concepts” in Morris, Cohen and Felix, Cohen, eds, Readings in Jurisprudence and Legal Philosophy (New York: Prentice-Hall, 1951) at 678–89.Google Scholar
16. Supra, note 14, at 80: “Jurisprudence is concerned not so much with the purposes which Law subserves, as with the means by which it subserves them.” The law’s divorce from purpose is also an admitted feature of the formalism recently elaborated by Ernest Weinrib. For Weinrib, law consists in the congruence between the principle or justification of a doctrine and the institutional format through which the principle is actualized. Thus a doctrine justified in terms of distributive justice cannot be part of the law enforced in an institutional setting whose intelligibility rests on corrective justice; see Ernest, Weinrib, “Legal Formalism: On the Immanent Rationality of Law” (1988) 97 Yale L.J. 949 at 968–70.Google Scholar Since the criterion of law is neutral with respect to substantive justifications, Weinrib must say that “the only function of the law of torts is to be the law of torts.” Ernest, Weinrib, “The Insurance Justification and Private Law” (1985) 14 J. Legal. Stud. 681 at 686.Google Scholar
17. See Robert, Megarry & Wade, H.W.R. The Law of Real Property, 5th ed. (Agincourt Ont.: Carswell, 1984) at 67–70.Google Scholar
18. Heath v. Lewis (1853), 3 De G. M. & G. 954 at 956, 43 E.R. 374 at 375, per Knight Bruce L.J.
19. Thus animals are purposive, but because they standardly do not create in terms of purposes, they are not a source of rationality.
20. The former pre-eminence of property over contract concepts in landlord-tenant law is another example of this form of conceptualism; see John, Hicks, “The Contractual Nature of Real Property Leases” (1972) 24 Baylor L. Rev. 443;Google Scholar Douglas, Stollery, “The Lease as Contract” (1981) 19 Alberta L. Rev. 234.Google Scholar
21. See Cohen, supra, note 15 at 821–34; Rudolf, Von Jhering, Law as a Means to an End, trans. Isaac, Husik (Boston: The Boston Book Co., 1913).Google Scholar
22. This is now the conventional wisdom about property; see John, Cribbet & Crowin, Johnson Principles of the Law of Property, 3d ed. (Westbury N.Y.: Foundation Press, 1989) at 5:Google Scholar “Occasionally, in your reading of cases, you will find a court saying, ‘We cannot grant the relief requested by the plaintiff because no property interest is involved…’ Is not this reasoning in reverse? If the court grants the protection, it has created a species of property… No particular harm is done by the legal formula set forth above as long as you realize that property is not a mystical entity established by some fiat outside the framework of the law.” See also Arnold, Weinrib “Information and Property” (1988) 38 U.T.L.J. 117 at 120–22;Google Scholar Singer, supra, note 7 at 637–41.
23. For the bundle of rights conception of property, see Wesley, Hohfeld “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23 Yale L. J. 16;Google Scholar see also Felix, Cohen “Dialogue on Private Property” (1954) 9 Rutgers L. Rev. 357 at 373–74;Google Scholar Tony, Honoré, Making Law Bind: Essays Legal and Philosophical, (Oxford: Clarendon Press, 1987) at 165–79;Google Scholar Thomas, Grey, “The Disintegration of Property” in Pennock, J. Roland & John, Chapman, eds, Property: Nomos XXII (New York: New York University Press, 1980) at 69–73.Google Scholar
24. That this is an appropriate test can be shown by the following argument. Were it to assert itself against the discourse of property law, functionalism would contradict itself as a theory of property. This is so because functionalism purports to tell the truth about what property is. That property is a social construct or a conclusion of practical reasoning is the putative truth about property. If in making this claim functionalism opposed itself to the discourse by which the social practice of property expresses itself, then the putative truth of the functionalist claim would be transformed into an arbitrary assertion. Since it could not appeal for verification to the self-understanding of the practice, functionalism would, when confronted with this understanding, appeal to its own perspective, that is, to its brute say-so. But it would thereby accord an equal standing to the say-so of its opponent and would therefore deny the possibility of the truth that it initially claimed.
25. Supra, note 8 at 151–64; Weinrib, supra, note 9 at 1297–1301.
26. Of course, authoritative summings are less reliable than free market transactions, so that efficiency supports “property” when such transactions are feasible. However, this means that property is a variable conclusion of a calculus as to the relative efficiency in the circumstances of market and authoritative reallocations; see Posner, supra, note 2 at 48–50.
27. See Grey, supra, note 23 at 69.
28. On the distinction between what courts do and what they say, see Cohen, supra, note 23 at 379–87.
29. See ibid, note 23 at 380–81.
30. See Richard, Epstein, “Covenants and Constitutions” (1988) 73 Cornell L. Rev. 906 at 909–10;Google Scholar Susan, French, “Toward a Modem Law of Servitudes; Reweaving the Ancient Strands” (1982) 55 S. Cal. L. Rev. 1261;Google Scholar Susan, French, “Servitudes Reform and the New Restatement of Property: Creation Doctrines and Structural Simplification” (1988) 73 Cornell L. Rev. 928;Google Scholar Uriel, Reichman, “Toward a Unified Concept of Servitudes” (1982) 55 S. Cal. L. Rev. 1177.Google Scholar
31. Supra, note 13 at paras. 34–35.
32. Contrast the approaches of Margaret Jane Radin and Peter Benson. Radin begins an account of property from an advanced conception of moral personality as embracing concrete projects, thereby rendering invisible the system of property law based on abstract personality; see Margaret, Jane Radin, “Property and Personhood” (1982) 34 Stan. L. Rev. 957;Google Scholar Benson, by contrast, never moves beyond the paradigm of abstract personality, thereby suppressing the doctrines embodying a right of intention; see Benson supra, note 9 at 1147–96.
33. See supra, note 13 at paras. 115–21, 132.
34. See, for example R. v. Stewart (1988), 50 D.L.R. (4th) 1 at 10–13;Google Scholar International News Service v. The Associated Press (1918), 248 US 215 at 248–67, per Brandeis J.Google Scholar
35. See I.N.S.I v. A.P., ibid., note 34 at 238, per Pitney, J; Krouse v. Chrysler Canada Ltd. (1972), 25 D.L.R. (3d) 49 at 59–62 (Ont. H.C.);Google Scholar Exchange Telegraph Co. Ltd. v. Howard and Manchester Press Agency Ltd. (1906), 22 T.L.R.. 375, per Buckley, J.:Google Scholar “The knowledge of a fact which is unknown to many people may be the property of a person in that others will pay the person who knows it for the information as to that fact.”
36. Duke of Norfolk’s Case (1681), 2 Swans. 454 at 460.
37. Ibid.
38. Supra, note 17, c. 18.
39. See Charles, Callaghan, Adverse Possession (Columbus: Ohio State University Press, 1961) at 89–96.Google Scholar
40. Supra, note 13.
41. Locke, J., The Second Treatise of Government ed. by Thomas, Peardon (Indianapolis: Bobbs-Merrill, 1952) paras. 25–51.Google Scholar
42. For accounts of Hegel’s theory of property that adopt this perspective see Peter, Stillman, “Hegel’s Analysis of Property in the Philosophy of Right ” (1989) 10 Cardozo L. Rev. 1031;Google Scholar Jeremy, Waldron, The Right to Private Property (Oxford: Clarendon, 1988) c. 10.Google Scholar
43. Supra, note 13 at paras. 34–35.
44. See Aristotle, Politics, 1256b–1258b; 1263a–1263b; St. Thomas Aquinas, The Summa Theologica, II-II, Q.66, A.1, 2, 7.
45. Supra, note 13 at para. 42. Since a “thing” is simply an entity that lacks the capacity for selfconsciousness, there is no reason to limit property to tangible things, and the common law never did so (witness incorporeal hereditaments). Accordingly, there is no basis for the view that the modern “dephysicalization” of property is inconsistent with the classical notion of property; see Kenneth, Vandevelde, “The New Property of the Nineteenth Century: The Development of the Modern Concept of Property” (1980) 29 Buffalo L. Rev. 325 at 331–40.Google Scholar I discuss the conceptual genesis of intangible property below, infra, note 81. Moreover, since a thing is whatever lacks self-consciousness, there is no reason to limit property to things outside the self. Thus, skills, talents, and time-restricted exercises of labour power may also be the subject-matter of property; see supra, note 13 at para. 67. Radin criticizes Hegel for basing the distinction between property and non-property on an elusive distinction between what is outside and what is inside the self, a distinction he then supposedly violates in allowing labour power to be alienable property; see “Market-Inalienability”, supra, note 3 at 1891–98. But this critique rests on a misunderstanding of Hegel’s statement that only things “external by nature” can be property, supra at para. 65. This does not mean that only things external to the self can be property; it means that only things that lack the inferiority of self-consciousness and that are thus “external by nature” can be property.
46. Supra, note 13 at para. 39.
47. The law of co-ownership exemplifies rather than contradicts the private nature of common-law property. Joint tenants merge (by virtue of the four unities) into a single person who is considered to hold indivisibly all rights in respect of the object. The single owner is not a transcendental or common personality in whose ownership the several persons have a distributive share; rather it is quite literally a single person in which the several individuals are obliterated. Thus joint owners in theory own no shares in the object (hence the right of survivorship), and a statute was required to allow one joint tenant to sue another for appropriating more than an equal share; see supra, note 17 at 417–33. By contrast, tenants-in-common own shares in the object; yet they do so not as beneficiaries of a common property but as private owners of segments that have not yet been divided.
48. This principle can be illustrated by aspects of the law of bailment. Apart from contract, an obligation to look after someone’s property arises only if one has assumed legal possession of the object, for only then is one’s obligation a negative one not to interfere with or “take” the bailor’s property. Someone who merely licenses the use of his premises for the storage of property assumes no duty of care; see Tyler, E.L.G. & Palmer, N.E. eds, Crossley Vaines’ Personal Property, 5th ed. (London: Butterworth, 1973) at 79–82.Google Scholar Moreover, a gratuitous bailee need not expend more than minimal trouble to ensure the condition of something left for his safe-keeping (he is liable only for gross negligence), but must exercise a high degree of care to preserve something he has borrowed, for otherwise the benefit to the borrower is unmatched by any countervailing burden in favour of the lender. Where the benefit of the bailment is mutual, the bailee is liable for ordinary negligence. Accordingly, liability in all cases is based on negligence, for otherwise the bailee would be forced to insure the bailor’s property rather than merely to refrain from interfering with it; yet the standard of care is adjusted in accordance with the locus of the benefit to ensure that no-one is forced unilaterally to serve the advantage of another. See Coggs v. Bernard (1703), 92 E.R. 107 (K.B.).
49. Epstein affirms the unity of the incidents of ownership, but gives no account of this unity. See Richard, Epstein, Takings: Private Property and the Power of Eminent Domain (1985) at 57–62.Google Scholar The argument for unity consists in a series of rhetorical questions disputing the possibility of coherently subtracting any of the incidents from ownership. “Is it sensible,” Epstein asks, “to have a notion of ownership without the right of possession?” (ibid, at 60). Someone might reply, however, that this subtraction is precisely the basis of the landlord-tenant relationship, which, if incoherent, is not self-evidently so. Epstein also claims that rights of ownership are of “infinite temporal duration.” (ibid, at 60). But how is this consistent with a grant of rights of possession and use for a finite temporal duration? If there is some time during which I do not possess these rights, then I do not possess them for an infinite temporal duration. The correct formulation would seem to be that ownership embraces its incidents conceptually and therefore atemporally.
50. Supra, note 13 at paras. 54–58.
51. Keron v. Cashman (1896), 33 A. 1055 (N.J. Ch.).
52. Eads v. Brazellon (1861), 79 Am. Dec. 88 (Ark. S.C.). That juridical possession must be publicly recognizable explains the importance of formalities in the common-law transfer of title. To acquire significance as a transfer of objective (hence judicially enforceable) title, the transferor must actually divest himself of the recognizable control of the object that constituted his juridical possession, while the recipient must likewise take control in public. Whether as a physical delivery of the object, as livery of seisin, or as a signed, sealed, and delivered deed, therefore, the transfer must observe a formality at which the public is theoretically present. The public is present, however, not for the evidentiary purpose of resolving disputes about title that may eventuate in the future, but for the purpose of validating the transfer of rightful possession in the present; see Cochrane v. Moore (1890), 25 QBD 57 (C.A.). Thus the formal requirements of delivery must be met even if they are superfluous as evidence of a firm and considered intent to alienate; and they are sufficient to constitute delivery even if they fall short of providing such evidence. Similarly, the deed under seal and consideration are not simply alternative means of evidencing a promise intended to be binding, for there is no juridical consequence attached to a promise as such, and the consideration would not be evidence of legal seriousness if it were not already required on other grounds. Rather the delivered deed is the symbol of an executed promise, of an accomplished validation and transfer of juridical possession that in itself entails enforcement as a right; while consideration is a necessary condition for the enforceability as a right of a promise yet to be executed. It is the renunciation of momentary inclination for the sake of the dominion of another that gives one a right to claim from the other a like subordination to one’s will.
53. It follows, too, that objects susceptible to an incomplete reduction to the will are the subject of a qualified property. Thus a person has an unconditioned property in a tame animal, but a qualified one in a wild animal; once the wild animal regains its liberty, it is no longer his. See William, Blackstone, Commentaries on the Laws of England, Book 2, (Oxford: Clarendon Press, 1766) at 393.Google Scholar
54. This is Posner’s view; see supra, note 2 at 32. In the economic theory of property, rights of exclusive possession emerge when it becomes worthwhile to internalize the costs and benefits of resource use. This occurs when changes in demand make certain resources acutely scarce in relation to human want. At that point property is needed to ensure that investors capture the benefits of their labour as well as to ensure that the costs of resource utilization are internalized to the user. See Harold, Demsetz, “Toward a Theory of Property Rights” (1967) 57 Am. Econ. Rev. Papers and Proceedings 347.Google Scholar According to economic theory, then, property is a policy response to a competition for scarce resources which, if unregulated, would produce inefficient outcomes. Scarcity itself is left unexplained, since human wants are accepted as given. Also unexplained is the goal of efficiency, which is simply assumed as a value. Thus economic theory explains property as a device for achieving an unexplained goal in the face of an unexplained problem.
55. Supra, note 2 at 69–70.
56. If we understand possession as an imperfect objectification of the final worth of the self, then we can further distinguish between modes of possession considered as progressively more adequate objectifications within the limitations of possession itself. Thus, laying hold of a particular object would be the least satisfactory embodiment of the will, for the self seeks an unconditionally valid dominion and yet one’s control of the object is here dependent on the contingency of physical contact. Reshaping it in some way would constitute a better possession, since the imprint of the self now remains even when the thing is beyond its physical grasp. Marking out or enclosing a space would be the best possession, for such an act possesses in the universal or non-sensuous way most adequate to the intellectual nature of property. With this theory of the degrees of juridical possession one can understand the way in which the common law typically resolves disputes between claimants to possession neither of whom is an absolute owner. As between a finder of a lost object and the occupier of the space within which the object was found, the latter will as a rule prevail, especially if the object was found attached to or under the occupier’s land; see South Staffordshire Water Co. v. Sharman [1896], 2 QB 44. To some commentators, this rule is mysterious, for the finder has the intent to possess the specific object, whereas the occupier is usually unaware of its existence. They are inclined to think, therefore, that the courts are concealing a policy preference behind a bald conclusion that the occupier was in “possession” of the object when it was found (perhaps the owner will be better able to trace the object if it remains in the hands of the occupier); see Harris, D.R., “The Concept of Possession in English Law” in Anthony, Guest, ed., Oxford Essays in Jurisprudence (London: Oxford University Press, 1961) at 82–84.Google Scholar If, however, we understand enclosing as a possession truer than sensuous grasping to the notion of juridical possession, that is, to an objectively valid or unconditioned subordination of things to a self, then the rule is intelligible on its own terms and stands in no need of a functionalist gloss.
Immediately related to the doctrine of possession is that of accession. Since I reduce to my will that which I intentionally possess, I also reduce things that become connected with what I originally possessed. The test of “connection”, however, cannot be determined by the concept of possession, and so the choice among the various tests proposed (for example, injurious removal or destruction of utility in the case of accession to chattels) falls to be determined by considerations extrinsic to formal property such as fairness to the improver. See Firestone Tire and Rubber Co. of Canada Ltd. v. Industrial Acceptance Corporation Ltd. (1970), 17 D.L.R. (3d) 229 (S.C.C.).
57. See Immanuel, Kant, The Metaphysical Elements of Justice, trans. Ladd, J. (Garden City: Doubleday, 1965), p. 53;Google Scholar Blackstone, supra, note 53 at 8; Richard, Epstein, “Possession as the Root of Title” (1979) 13 Geo. L. Rev. 1221;Google Scholar Carol, Rose, “Possession as the Origin of Property” (1985) 52 U. Chicago L. Rev. 73.Google Scholar
58. Oliver, Wendell Holmes, The Common Law, ed. by Mark, DeWolfe Howe (Cambridge: Belknap Press, 1963) at 163–67.Google Scholar
59. This error is responsible for a number of false steps in the common law; see, infra, note 64.
60. Armory v. Delamirie (1722), 93 E.R. 664.
61. That ownership is distinct from best possessory title is shown by the fact that an owner with no right to immediate possession (for example, a bailor) can sue for damages to his reversionary interest; see Tyler and Palmer, supra, note 48 at 79.
62. Supra, note 13 at paras. 59–64.
63. The superiority of use to possession as an embodiment of personality (and so as a basis of title) is also reflected in the ancient doctrine of alteration. Someone who wrongfully takes another’s grapes and turns them into wine has the best property in the wine; he is liable in damages only for the value of the grapes; see Blackstone, supra, note 53 at 404.
64. See, for example, Rogers v. Elliot (1888), 146 Mass. 349, 15 N.E. 768. Considered as inwardly limited by the requirement of objectivity (and so by the equal right of others), the right to use is prolific of common-law and statutory doctrines. It underlies not only nuisance law but also the tenant’s right to quiet enjoyment, the landlord’s duty to provide and maintain residential premises fit for habitation, restrictions on tenants’ use, the right to lateral and subjacent support, riparian rights, as well as the law of easements and of restrictive covenants. On the other hand, the tendency to privilege possession at the expense of use as the paradigm of property is responsible for some of the more egregious false steps of the common law. Until recently, for example, the tenant’s right to quiet enjoyment was regarded as protecting him only against physical invasions inconsistent with possessory title. Interferences with ordinary use were not per se enjoinable unless associated with the use of the landlord’s property or unless consumable as an effective eviction. Similarly, public regulation depriving an owner of a reasonable use of his land has sometimes been denied the status of a compensable taking because the owner retains his possession. And a breach of the landlord’s duty to provide premises fit for habitation was traditionally viewed as providing no justification for withholding rent because rent was seen as consideration for a possessory right, which the tenant still held. Finally the rule that economic loss is recoverable in tort only if consequential on physical damage to property seems also to exalt possession from an element of property to a criterion thereof. Yet all of these errors have either been corrected by statute or are in the process of revision by the common law.
65. See Sturges v. Bridgman (1879), 11 Ch. D. 852.
66. That juridical use is circumscribed by the equal user right of others reveals the limited sense in which it is true to say that property is a conclusion of tort law. This statement is true to the extent that the requirement of objectivity implicates at least one other will, so that one’s property in specific uses must be co-determined with that of another according to an objective and impersonal standard. What begins as an asocial relation between a person and a thing conceptually culminates in a social one between persons, and I shall presently say more about the significance of this movement. On the other hand, the statement is interpretively false if it implies that one’s property in uses is flexibly mediated through a criterion of social good independent of the priority of the person. The account of property that fits the dominant common-law discourse is one that reveals property as an objectively valid connection between a thing and an abstract will. The objectivity of this connection makes relevant the abstract wills of others but consigns to irrelevance their welfare. There is thus a formally determined property in uses that is independent of welfarist considerations and whose invasion constitutes a transitive taking. The contrary view, as Ronald Coase has shown, leads to the result that property does not matter, since bargaining will theoretically produce the optimal welfarist result wherever the entitlement is initially placed; see Ronald, Coase, “The Problem of Social Cost” (1960) 3 J. Law and Econ. 1.Google Scholar The obsessive preoccupation of courts with what is economically irrelevant must then be explained by the existence of real-world negotiating costs that obstruct movement toward the efficient outcome. This explanation is unsatisfying, however, since it only reaffirms the position that property is irrelevant. If the court awards the entitlement to the party who would, but for transaction costs, have bought it from the other party, it implies that the process of market transfer is of no intrinsic importance, that only the result matters, even though the process (who pays whom) is determined precisely by the locus of the property right. Further, the economic interpretation of property law leads us to expect that, where transaction costs are low, judges would resolve a dispute over conflicting uses randomly (thus saving the expense of hearing legal argument, guessing the optimal assignment etc.), an expectation disconfirmed by experience. The reply must then be that judges do imperfectly something other than their rhetoric avows. To this we can respond only with an alternative account of judicial practice, one that is validated by its rhetoric rather than isolated by it.
67. See Tulk v. Moxhay (1848), 41 Eng. Rep. 1143 (Ch.).
68. See Cribbet, & Johnson, , supra, note 22 at 375–76;Google Scholar French, “Toward a Modern Law of Servitudes”, supra, note 30 at 1289 at 1292.Google Scholar
69. Real covenants in a lease must be explained somewhat differently, since they are not required to benefit other land. Such covenants “run” with the land if and only if they “touch and concern” the land demised. The reason is that only covenants that affect the tenant’s possessory and usufructuary estates define his property. If a covenant burdens his use, it must run to an assignee, since nemo dat quod non habet. But if a covenant is unrelated to possession or use, it does not define the tenant’s estate, hence does not run with it. To bind the successor here would be to force him in the absence of contract to serve another. Real covenants in a lease may impose either negative or positive obligations, since both circumscribe the right of use (and hence the temporary property) that the landlord-tenant agreement has carved out of the landlord’s estate. The positive obligation on the successor is not a duty to confer a benefit but a duty to remain within the limits of the property demised. Outside a landlord-tenant relationship, however, servitudes must be negative in order to run, for otherwise the successor is forced not simply to respect the property of another but to serve his pleasure. Thus the requirements of touch and concern, of privity of estate for positive obligations, and (conversely) of negativity in equitable servitudes (where there is no privity of estate) all serve the identical purpose of maintaining the distinction between persons and things.
70. See French, “Servitudes Reform and the New Restatement of Property”, supra, note 30 at 929–30.Google Scholar
71. See I.N.S. v. A.P., supra, note 34 at 238, per Pitney, J.; Krouse v. Chrysler Canada Ltd., supra, note 35; cf. supra, note 41 at para. 27.
72. Epstein, supra, note 57 at 1226.
73. Supra, note 41 at para. 27.
74. Ibid.; Robert, Nozick Anarchy, State, and Utopia (Oxford: Blackwell, 1974) at 174–82.Google Scholar
75. How can we reconcile this conclusion with the right of the first occupier? As long as we are on the path toward a full property, each step of the path is self-contradictory, driving us forward. Thus, first occupation confers a property, for it is an incursion of personality that must be respected if personality is to be respected as an end. However, the unilateral nature of the exclusion means that it is not full property, so that first occupation at once does and does not confer a right. Once we have arrived at the culminating condition of property, each of the preceding phases is retrogressively validated. First occupation now confers a coherent property (defeasible by the adverse possessor) because the conditions are now in place that render it consistent with the equal right of others to an unlimited appropriation.
76. See Pufendorf, S. On the Duty of Man and Citizen According to Natural Law, trans. Moore (New York: Oceana, 1964), Bk. 1, ch. 12, p. 62;Google Scholar Grotius, H. On the Law of War and Peace, trans. Kelsey (New York: Oceana, 1964), bk. 2, ch. 2, pp. 189–90.Google Scholar
77. Supra, note 13 at paras. 72–74.
78. Because alienation by gift is a mode of demonstrating the will–s mastery of the thing, it is vitiated by factors — for example, mistake, fraud, and undue influence that negate the deed as an expression of the will.
79. That property in a thing is conceptually fulfilled by the power freely to alienate it explains the special common-law remedies for intentional infringements of property. Trespasses are actionable without proof of physical damage and even if the plaintiff is benefited, for the act’s inconsistency with property lies not in the material harm it inflicts but in its failure to respect the free choice of the owner. To protect this choice, courts enjoin takings before they occur, and they award damages in excess of the market value of something converted if ordinary damages would amount to a sale forced upon the plaintiff; see John, Fleming The Law of Torts (Sydney: Law Book Co., 1983) at 63.Google Scholar Indeed, if the defendant’s gain exceeds the plaintiff’s loss, they will allow the plaintiff — through waiver of tort — to capture the gain in order to vindicate his right freely to dispose. An instrumentalist view of these remedies sees them as promoting efficient resource allocation in situations where transaction costs are low, since they permit the free expression of the parties’ subjective valuations and so ensure that the object will find a home where it is valued most; see Guido, Calabresi & Douglas Melamed, A. “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv. L. Rev. 1089.Google Scholar Thus, we do not protect an entitlement with a property remedy in order to reflect its status as property; rather something is property because we protect it with a “property” remedy, and the decision to do so is driven by the variable exigencies of efficiency. Were it simply a political program for the reorganization of property law under the primacy of economic efficiency, the economic perspective could not be immanently criticized as either true or false, since it would recognize no object by which to test the validity of its ultimate norm. One could criticize it only as a dogmatism that, because it gives equal standing to rival dogmatisms, renders theoretical disputes absurd. Perhaps to avoid this result, the economic perspective presents itself not as an opinion as to how legal remedies ought to be remodelled but as a “view of the cathedral”, that is, as an interpretive account of the practice and discourse of property law. Yet once it recognizes this discourse as a touchstone for the truth of its own, it convicts itself of uttering falsehoods, for its account of property transforms the latter into something entirely different from the property understood in the discourse of the common law. Common-law property refers to an unconditioned or objectively valid connection between an object and an individual person. Property, in other words, is an individual right of exclusive control. In the economic account, the idea of an unconditioned bond between object and subject is still present, but the subject of this relation is no longer the individual person but rather the collective one. What the common law calls property is for economic analysis simply an entitlement protected by an injunction, a remedy one will receive only if transaction costs will not distort efficient trading. Thus the only non-contingent property consists in the relation between the object and the collective person whose welfare-maximizing goal determines where entitlements rest and how they are protected. Whatever one may think of this notion as a political proposal, it unquestionably presents a distorting perspective on the cathedral.
80. Fountainbleu Hotel Corp. v. Forty-Five Twenty-Five (1959), 114 So. (2d) 357 (Fla. S.C.); Port v. Griffith [1938], 1 All E.R. 295. This principle underlies the normal rule that damages are not recoverable in tort for pure economic loss; see Spartan Steel & Alloys Ltd. v. Martin & Co. [1973], I Q.B. 27 (C.A.); Murphy v. Brentwood District Council [1990], 3 W.L.R. 414 (H.L.). It should be noted, however, that economic loss consequential on interference with ordinary use is not “pure” regardless of whether the plaintiff has suffered physical damage to the property.
81. We are now in a position to understand the significance of property in such intangibles as shares, choses in action, trade secrets, endorsing power, and goodwill. The existence of intangible property does not challenge the idea that property is an objectively valid conquest by personality of the material world; on the contrary, intangible property perfects that conquest. Once property is fulfilled in exchange, commensurability between diverse objects requires an abstraction from corporeal things to incorporeal value, which is just the unity of incorporeal wills. At this point, one’s property is not confined to the sensuous thing one temporarily possesses, but extends perdurably to its exchange value vis-à-vis all other objects; that is, one’s authentic property is in a certain extent of control over the material world in its entirety. But sensible objects are not the only sources of such control. Legally recognized entitlements to resources are as well, as are trade secrets and commercial reputation. Thus, once juridical control over the world is established in exchange, that control becomes itself amenable to exchange. It becomes possible for incorporeal value to attach not immediately to physical objects but to already existing entitlements to objects or to the power to accumulate objects. If we forget the origins of this development, we may arrive at the conclusion that property is any legally protected valuable interest; and then it is a short step to treating property as an idle concept — as something secreted out of the political reconciliation of competing economic interests; see Vandevelde, supra, note 46 at 329. The fallacy in this reasoning lies in assuming that the logical culmination of a developmental process makes the preceding stages superfluous. From the fact that property is conceptually fulfilled in a right to exchange value, it does not follow that the concept of property is swallowed up by the idea of a valuable legal interest. All the elements of property are essential to its concept, so that the exclusive possession and use of objects having exchange value constitute a property independent of public policy.
82. If we abstract this result from the whole process of which it is the culmination, we arrive at the influential (but erroneous) Hohfeldian view that property is simply a set of jural relations between persons; see Wesley, Hohfeld “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale L. J. 710 at 721.Google Scholar On this view, the notion of property becomes inflated beyond intelligibility, for it now refers to any entitlement (privilege, immunity, etc.) whether or not it has a thing as its subject-matter. On the other hand, if we grasp the developmental process as a whole, we arrive at the more sensible position that property is a relation between persons as owners of things.
83. See Johnstone v. Johnstone (1913), 12 D.L.R. 537 (Ont. C.A.).
84. See Morris, Cohen “Property and Sovereignty” (1927), 13 Cornell L. Q. 8 at 11–14;Google Scholar MacPherson, C.B. “The Meaning of Property” in Property: Mainstream and Critical Positions ed. by MacPherson, C.B. (Toronto: University of Toronto Press, 1978).Google Scholar
85. See Inwards v. Baker [1965], 2 Q.B. 29 (Eng. C. A.).
86. See Pascoe v. Turner [1979], 1 W.L.R. 431 (C. A.).
87. Consider also the case of a theatre owner who sells a ticket to a customer, admits him into the premises, and then for no good reason tries to evict him before the performance has ended. The customer stands his ground and is bodily removed from the theatre. In a suit by the customer for assault, the theatre owner would win at law. The customer was a licensee and the owner could terminate the license at will, using reasonable force if the customer refused to leave. No doubt the owner was in breach of contract, but the customer’s remedy is then a contractual rather than a proprietary one: he can sue for damages, but he was still a trespasser once his licence was revoked and so cannot complain of assault. Again, however, the legal position is reversed by equity. A court of equity will not allow the owner to use his property right as an instrument of oppression. It will elevate the license into a right of property held for the duration of the performance, thereby again transferring property from one party to another. See Hurst v. Picture Theatres, Ltd. [1915], 1 K.B. 1 (C.A.); see also Errington v. Errington [1952], 1 K.B. 290 (C.A.).
88. See Sorochan v. Sorochan (1986), 29 D.L.R. (4th) 1 (S.C.C.); Pettkus v. Becker (1980) 117 D.L.R. (3d) 257 (S.C.C.).
89. A constructive trust is also imposed on fiduciaries who use their office for personal gain; see Keech v. Sandford (1726), 25 E.R. 223. The doctrine is analogous to that of proprietary estoppel and the constructive trust on a spouse in that an affirmative burden arises from a legally created relation of power and dependence, ensuring that the power is used for the good of the dependent party. For an account of the fiduciary obligation along these lines, see Ernest, Weinrib , “The Fiduciary Obligation” (1975) 25 U.T.L.J. 1.Google Scholar
90. The exception of public expropriation will be explained below.
91. See Perka v. The Queen (1985), 13 D.L.R. (4th) 1.
92. See Post v. Jones (1856), 60 U.S. (19 How.) 150.
93. Supra, note 13 at para. 67. The framework of formal right thus generates a class of inalienable or uncommodifiable entities, albeit a narrow one; see below, infra, note 109. The basis of inalienability is the impermissibility of treating personality as a thing, an unconditioned end as a means. An entity is thus inalienable if it is a person or is constitutive of abstract personality. Things constitutive of abstract personality are the capacity to own property, the capacity freely to choose goals and commitments, the totality of one’s labour power; see ibid, at para. 66. Thus Radin errs when she writes that the framework of right based on abstract personhood logically culminates in universal commodification; see “Market-Inalienability”, supra, note 3 at 1897–98.
94. See Woollerton and Wilson Ltd. v. Richard Costain Ltd. [1970], 1 W.L.R. 411.
95. (1910) 124 N.W. 221.
96. Ernest, Weinrib “The Case for a Duty to Rescue” (1980), 90 Yale L.J. 247 at 268–79.Google Scholar
97. Supra, note 34.
98. See Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor (1937), 58 C.L.R. 479 (H.C.).
99. In this context belong the cases that recognize a “quasi-property” in information, valid against those who stand in a relation of confidence to the holder. One may argue that information fails to meet the formal criteria of property because it is incapable of exclusive possession. Someone who “takes” confidential information does not deprive the original holder. No doubt he takes value, but (as we have seen) there is no property in value prior to its condensation in exchange. Nevertheless, equity will protect this value against someone who exploits a relation of confidence or trust; see Boardman v. Phipps [1967], 2 A.C. 46.
Is information truly incapable of protection as property? The fact that secrets can be maintained indicates that information is capable of exclusive possession. That someone who takes the information leaves me in possession of it seems irrelevant, for he has deprived me of exclusive possession, which (as we have seen) confers a property. Someone who trespasses on my land also leaves me in possession, but no one will deny that his act constitutes a taking of property. American courts have long recognized a property in confidential information; see F.W. Dodge Co. v. Construction Information Co. (1903), 66 N.E. 204; Ruckelshaus v. Monsanto (1984), 104 S.Ct. 2862. For a thorough discussion of the issue from a functionalist perspective, see Arnold Weinrib, supra, note 22.
100. Singer, supra, note 7 at 633–37.
101. For example, United States v. Bethlehem Steel Corp. (1942), 315 U.S. 289 at 326, per Frankfurter J.: “[I]s there any principle which is more familiar or more firmly embedded in the history of Anglo-American law than the basic doctrine that the courts will not permit themselves to be used as instruments of inequity and injustice? Does any principle in our law have more universal application than the doctrine that courts will not enforce transactions in which the relative positions of the parties are such that one has unconscionably taken advantage of the necessities of the other?” Stockloser v. Johnson [1954], 1 Q.B. 476, 488–89 (C.A.), per Denning, L.J.: “The claimant invariably relies, like Shylock, on the letter of the contract to support his demand, but the courts decline to give him their aid because they will not assist him in an act of oppression....” Lloyd’s Bank v. Bundy [1975], 1 Q.B. 326 at 336–37 per Lord Denning M.R.: “There are cases in our books in which the courts will set aside a contract, or a transfer of property, when the parties have not met on equal terms — when the one is so strong in bargaining power and the other so weak — that, as a matter of common fairness, it is not right that the strong should be allowed to push the weak to the wall.” In Re Diplock, [1948], Ch. 465, 532 (C.A.), per Lord Greene, M.R.: “[E]quity intervenes not to do what might be thought to be absolute justice to a claimant but to prevent a defendant from acting in an unconscionable manner. Equity will not restrain a defendant from asserting a claim save to the extent that it would be unconscionable to do so. If this limitation on the power of equity results in giving to a plaintiff less than what on some general idea of fairness he might be considered entitled to, that cannot be helped.”
102. This formula might still seem to undermine formal right in the following ways. First, it seems to imply a general coercive duty to rescue someone in danger of losing some material condition of effective freedom. Secondly, suppose impecunious A tortiously injures wealthy B. Paying damages to B will render A destitute, while leaving B to bear his loss will have little effect on his welfare. The legal result would thus be inimical to A’s real welfare. No liability?
The principle we have identified implies no general legal duty to rescue. As we shall see, the right to the material conditions of effective freedom binds the community as a whole, not any individual taken singly. Since the right singles out no individual as the correlative duty-bearer, a legal duty to rescue amounts to coerced philanthropy, which is a violation of real no less than of formal freedom. In the cases where equity intervenes, it is not the right to the material conditions of freedom that is operative, at least not directly. Rather the operative right is one against subjection to a law that embodies another’s good but no reasonable definition of one’s own. Since this is a right of autonomy specifically in relation to formal right, it necessarily singles out the person wishing to assert formal right as the corollary duty-bearer. However, this does not mean that impecunious A escapes liability for his tort. Equity works to suspend formal right when it is being used as an instrument of domination, and when enforcing it would thus undermine its own claim to universality. Hence there must be a relation of power and dependence anterior to the juridical relation between the parties, one to which the law threatens to become subservient. This relation may exist where a property-owner induces someone to incur costs in reliance on his assurance of non-enforcement; or where someone takes advantage of the ignorance or dire need of another party to extract one-sided contractual terms. In the example of A and B, no such relation exists.
103. The good faith purchaser for value exception to the rule that nemo dat quod non habet is also explicable in these terms. Here equity protects the projects of the good faith purchaser against a law of property that, in the circumstances, impinges on him in the form of a blind and incalculable fate. Since its effects are beyond the scope of the purchaser’s rational foresight and control, the law of property would, if enforced in these circumstances, negate the autonomy of the agent, his power to see in his deeds only the externalizations of self-chosen projects. Its enforcement would thus subvert its own universality, for it would be unrecognizable to the rational agent as his good, as realizing his status as an end capable of putting his will in place of chance as the determinant of what he becomes. Once again, therefore, equity cancels the self’s estrangement in formal property by cancelling the power of property insofar as this power acts externally. The limitations of the exception ensure that it will govern only in circumstances where the effect of formal property would be to subject the purchaser to an incalculable fate rather than to consequences under his rational control. Thus the purchaser must take in good faith; he must believe the seller has good title. Moreover, his belief must be based on reasonable grounds; he must have no notice of the defect in title, and the circumstances must be such as would lead a reasonable person to the belief (for example, he must purchase in a market overt or must have reasonably relied on a representation of the owner that the transferor had a right to transfer the goods). Finally, he must give value for the goods; that is, he must be innocent of wrongdoing himself, for otherwise the enforcement of property against him is immanent in his rational will and not external to it. It is not the effect of an external fate, but a vindication of the end-status of all persons. Equity thus suspends property only in order to realize better the end which property itself embodies.
104. It would perhaps be preferable to cease all reference here to an affirmative duty on the part of the person seeking to enforce his or her property. The duty is on the court. The observance of this duty means, of course, that the plaintiff forgoes his or her right. But the court is not enforcing the plaintiff’s duty; it is conforming to its own. This is why an equitable right is said to engage the conscience not of the other party but of the court; see George, Keeton & Sheridan, L.A. Equity, 3rd ed.(London: Barry Rose, 1987) at 3.Google Scholar
105. Sometimes judges give explicit expression to the idea that equity fulfills a formal right that, if absolutized, contradicts itself. See, for example, Morehead v. People of State of New York ex. rel. Tipaldo (1936), 298 U.S. 587 at 627, per Hughes C.J.: “We have had frequent occasion to consider the limitations on liberty of contract. While it is highly important to preserve that liberty from arbitrary and capricious interference, it is also necessary to prevent its abuse, as otherwise it could be used to override all public interests and thus in the end destroy the very freedom of opportunity which it is designed to safeguard.”
106. Supra, note 13 at paras. 81–82.
107. Ibid, at para. 104.
108. See Kant’s account of the right of necessity, Kant, supra, note 57 at 41–42; and compare Hobbes’ statement that the duty to respect covenants is contingent on the existence of an overpowering sovereign, in the absence of which everyone has a natural right to do as he pleases; see Thomas, Hobbes Leviathan (1958) at 115, 120, 139, 179.Google Scholar
109. The paradigm of moral self-determination thus enlarges the class of inalienable entities; see supra, note 93. No one may benefit from a transaction in which one party has, owing to desperate circumstances, given up a material condition of effective freedom. Here, however, the basis of the enlarged sphere of inalienability is not the preservation of self-related personality’s essence but the preservation of law as the embodiment of a common or reciprocal will to whose binding force the self-determining agent can rationally assent. Thus, there is no absolute prohibition on foolishly squandering one’s resources or on ruining one’s health (as there is on selling babies or on becoming another’s slave). Such a prohibition would amount to a “paternalism” inconsistent with the freedom of choice underlying formal right, and so would undermine rather than perfect that freedom. Rather, one is protected against harm to one’s real interests only in the context of transactions where ignorance or dire need is exploited by another party, and where the law of property would thus otherwise become the instrument of another’s good. Moreover, one is protected only at one’s own choosing. Transactions involving entities inalienable under formal right are void; those involving entities inalienable under the moral paradigm are voidable. The reason is that if the person affirmatively desires the transaction, there is no basis for saying that it embodies another’s good.
110. Thus the content of the common will is equivalent to Rawls’ “fair system of cooperation between free and equal persons.” See supra, note 11, 223 at 231.
111. This correlativity of right and duty in formal right is the basis of corrective justice and of the bipolar format of civil litigation.
112. Thus for Rawls, the question whether the means of production should be owned privately or collectively is a matter of prudence rather than of right; see John, Rawls A Theory of justice (Cambridge, Mass.: Belknap Press, 1971) at 258, 271–74.Google Scholar
113. See Joseph, Sax “Some Thoughts on the Decline of Private Property” (1983) 58 Wash. L. Rev. 481 at 484;Google Scholar supra, note 2 at 48–50; Singer, supra, note 7 at 650.
114. Thus, in Penn Central Trans. Co. v. City of New York (1978), 438 U.S. 104, the U.S. Supreme Court said that it would balance a number of factors in determining whether public regulation amounted to a compensable taking, including the costs to the proprietor (124) and whether the action is reasonably necessary to a substantial public purpose (124, 127, 138).
115. See Michelman, supra, note 3 at 1214–24.
116. See Charles, Reich “The New Property” (1964) 73 Yale L.J. 733.Google Scholar
117. Susan, Rose-Ackerman “Inalienability and the Theory of Property Rights” (1985) 85 Col. L. Rev. 931 at 931–33;Google Scholar Edwin, Baker “Property and its Relation to Constitutionally Protected Liberty” 134 U. Pa. L. Rev. 741, 742–55 (1986);Google Scholar Charles, Donahue “The Future of the Concept of Property Predicted from its Past” supra, note 23; Grey, supra, note 23 at p. 69.Google Scholar
118. Jeremy, Waldron “What is Private Property?” (1985) 5 Ox. J. Leg. Stud. 313, 336;Google Scholar Grey, supra, note 23 at 70–73.
119. See Boomer v. Atlantic Cement Co. (1970), 257 N.E. (2d) 870 (N.Y.S.C); Miller v. Jackson [1977], 3 All E.R. 338 (C.A.).
120. See Spur Industries v. Del E. Webb Development Co. (1972), 494 P. (2d) 700 (Ariz. S.C). Another illustration: In deciding whether someone is liable in trespass to the owner of property, a court will have to consider whether the property is so affected by a public interest as to warrant a qualification of the owner’s right to exclude; see Amalgamated Clothing Workers of America v. Wonderland Shopping Centre Inc. (1963), 122 N.W. 2d 785. See also the dissenting judgment of Laskin, J. in Harrison v. Carswell (1975), 62 D.L.R. (3d) 68 at 69–77.
121. The new paradigm is also reflected in the adjudication of personal injury cases. We have seen that a right to the conditions of effective freedom is a right against the community rather than against any single individual, so that enforcing this right against a non-negligent defendant in a tort case amounts to coerced beneficence, a violation of right. However, in the absence of adequate state compensation, a court might transform itself into an administrative agency by considering the defendant’s capacity to socialize the costs of accidents through insurance and ultimately through the price of commodities. In this way, liability ceases to be coerced philanthropy and becomesthe judicial imposition of a social tax.
122. The consistent conclusion (and dialectical inversion) of the paradigm of individual autonomy is thus Rawls’ “difference principle”; see supra, note 112 at 75–83, 100–08.
123. For this tension in the takings jurisprudence of the US Supreme Court, see Margaret, Jane Radin “The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings” (1988) 88 Col. L. Rev. 1667.Google Scholar
124. Hegel calls it Siltlichkeit, usually translated as ethical life; see supra, note 13 at para. 142. Drucilla Cornell has drawn attention to the dialogic nature of Hegel’s idea of community. See “Dialogic Reciprocity and the Critique of Employment at Will” (1989) 10 Cardozo L. Rev. 1575.Google Scholar
125. Supra, note 13 at para. 152.
126. Hegel, G.W.F. Natural Law, trans. Knox (Philadelphia: University of Pennsylvania Press, 1975) at 94–104.Google Scholar Those who identify Hegel’s fully developed state with this one-sidedly “substantial” community come to the conclusion that private property is submerged in Hegel’s state. For example, Radin writes: “Hegel’s theory of the state carries the seeds of destruction of all liberal rights attaching to individuals (because in the state particular arbitrary will passes over into willing the universal). Hence, there is in Hegel’s theory a foundation for the communitarian claim that each community is an organic entity in which private property ownership does not make sense. Hegel does not make this claim, perhaps because he is too firmly rooted in his own time.” Radin, “Property and Personhood”, supra, note 3 at 976–77. Hegel does not make this claim, because the community that reduces the individual to the universal is inadequate to the idea of community (as the common good of individuals) and so is impelled by the necessity of its own nature to set the individual free as an independent end. The community that fully conforms to its idea thus contains liberal anti-communitarianism as an enduring moment of its self-development; see supra, note 13 at para. 260.
127. The intuition of the common law supports the idea that logically superseded phases of a concept’s development are preserved as having distinctive normative force. We saw that the concept of ownership passes through the sensuous phases of possession and use until it arrives at an embodiment suitable to its intellectuality in the recognition of other persons through exchange. Once the perfect, conceptual embodiment of ownership is grasped, no one will think that possession and use are any longer essential to ownership, and certainly the common law does not. Thus I remain the owner of something I have received through consensual transfer even if I give legal possession to someone else, as when I bail or lease it. Nevertheless, sensuous possession and use are each preserved as conferring primitive and inferior properties, the former subordinate to the latter and both subordinate to ownership conferred by grant. Thus, the inadequate and superseded stages traversed by personality on the way to objective property retain a distinctive juridical force, while full ownership encompasses the properties realized in each.
128. See supra, note 13 at para. 260: “The principle of modern states has prodigious strength and depth because it allows the principle of subjectivity to progress to its culmination in the extreme of self-subsistent personal particularity, and yet at the same time brings it back to the substantive unity and so maintains this unity in the principle of subjectivity itself.”
129. Thus, legislative interferences with freedom of alienation in order to protect the real interests of the weaker party require no compensation, but a ban on the sale of, say, eagle feathers by a conservation statute does. See Andrus v. Allard (1979), 444 U.S. 51, where the U.S. Supreme Court held there was no taking in the latter case.
130. Hobbes, supra, note 108 at 146–47.
131. Adolf, Berle & Means, Gardiner The Modern Corporation and Private Property (New York: The Macmillan Co., 1933) at 66, 138–41.Google Scholar
132. See Michael, Fogarty Company and Corporation — One Law? (London: G. Chapman, 1965) at 60–153;Google Scholar Walter, Kolvenbach Workers Participation in Europe (Deventer, The Netherlands: Kleuver, 1977).Google Scholar
133. See Patrick, Macklem “Property, Status, and Workplace Organizing” (1990) 40 U.T.L.J. 74;Google Scholar compare State v. Shack (1971), 277 A. (2d) 369.
134. Singer, supra, note 7.
135. Cornell, supra, note 124.
136. Supra, note 95.
137. Singer, supra, note 7; Grey, supra, note 23 at 80; David, Beatty “Industrial Democracy: A Liberal Law of Industrial Relations” (1984) 19 Valparaiso L. Rev. 37 at 68;Google Scholar Macklem, supra, note 133.