1 Private Ownership

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Legal Theory, 16 (2010), 1–35.
C
Cambridge University Press 2010 0361-6843/10 $15.00 + 00
doi:10.1017/S1352325210000042
PRIVATE OWNERSHIP
Avihay Dorfman

Tel Aviv University Faculty of Law
The most powerful response to growing skepticism about the intelligibility of the
idea of private ownership has been cast in terms of an owner’s rights to the exclu-
sive use of an object. In these pages, I argue that this response suffers from three
basic deficiencies—rather than merely explanatory gaps—that render it unable to
overcome the specter of skepticism. These deficiencies reflect a shared want of at-
tention to the normative relationship that ownership engenders between owners and
nonowners. In place of the right to exclusive use, I set out to develop an account of
private ownership that seeks to defeat skepticism concerning this idea. The proposed
account insists that the idea of private ownership picks out a special authority relation
between an owner and a nonowner involving the normative standing of the latter in
relation to an object owned by the former. I further demonstrate the important place
of this idea in shaping the contours of normative disagreements about the point of
ownership rights and responsibilities.
I. INTRODUCTION
The idea of private ownership gives rise to two analytical questions in partic-
ular: one, its existence; the other, its content. These questions have forced
theories of property into two distinct approaches. Dominating the field for
most of the past century has been a sense of skepticism about the idea,
which has led scholars to embrace a nuanced and intricate view of private
ownership as a bundle of rights. Although there are many different ac-
counts of ownership associated with this view, it is generally understood to
be a placeholder for the thesis that the idea of ownership does not exist
and that if it does, it is useless or otherwise unable to illuminate theoretical
and popular discussions of property.
1
On the other side of the conceptual

The article has benefitted from comments received at the Siderow Workshop for Law and
Political Thought and at the First Annual Conference of The Israeli Association of Private
law. I would like to thank the participants in these occasions. I am grateful in addition to
Yishai Blank, Hanoch Dagan, Alon Harel, Shai Lavi, Daphna Lewinsohn-Zamir, Shahar Lifsitz,
Daniel Markovits, Robert Post, David Schorr, Joshua Weisman, and two anonymous referees
for helpful comments on earlier drafts.
1. For a recent statement, see Pey-Woan Lee, Inducing Breach of Contract, Conversion and
Contract as Property, 29 OXFORD J. LEGAL STUD. 511, 514 (2009) (denying that property features
“a singular coherent concept”). See also JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES
OF PROPERTY 7 (2000) (discarding ownership “as an organizing category.”).
1
2 AVIHAY DORFMAN
debate, opponents of the bundle-of-rights approach have sought to revive
the view shared by luminaries such as David Hume, Immanuel Kant, and
William Blackstone, according to which the idea of private ownership picks
out the right of owners to exclusive use of objects.
2
Current articulations of
this approach are far more elaborate and sophisticated than ever before, to
be sure, but they do share with the accounts of their intellectual ancestors
a single analytical commitment concerning the conceptual core of private
ownership—to repeat, exclusive use.
Thus the exclusive-use account casts itself as a prominent—perhaps the
most prominent—way out of the conceptual skepticism celebrated by the
bundle-of-rights approach.
3
In these pages, I shall seek to challenge this
view in two different ways without thereby embracing skepticism or legal
realism concerning private ownership.
4
First, I argue that the exclusive-use
account is not a theory of the idea of private ownership, properly con-
ceived. Even worse, it is a theory of possession that fails to account for
elementary features of private ownership such as the idea that it takes the
form of a private-law practice. Second, I outline a novel account of private
ownership emphasizing the authority relations it engenders between own-
ers and nonowners with respect to the normative standings of the latter to
objects.
5
It is important to note at the outset that I shall not attempt a detailed
review of the literature but rather deploy stylized accounts of the opposing
approaches to the questions of the existence and content of the idea of
private ownership. This hardly does justice to the sophistication and rigor
of such theories, but it is nonetheless appropriate insofar as I seek to render
more transparent the need to create conceptual space, as it were, for a novel
approach to the analytics of private ownership.
2. See, e.g., JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988); J.E. PENNER, THE IDEA
OF PROPERTY IN LAW (1997); Ernest J. Weinrib, Poverty and Property in Kant’s System of Rights, 78
NOTRE DAME L. REV. 795 (2003); Thomas W. Merrill & Henry E. Smith, The Morality of Property,
48 WM. & MARY L. REV. 1849 (2007); ARTHUR RIPSTEIN, FORCE AND FREEDOM: KANT’S LEGAL AND
POLITICAL PHILOSOPHY 86–106 (2009).
3. Perhaps another way out, which is not considered in these pages, is offered by James
Harris, who claims that ownership is the organizing principle of property institutions. JAMES W.
HARRIS, PROPERTY AND JUSTICE 5 (1996). Some of my critique against the exclusive-use account
may be relevant to Harris’s impressive work, though I leave this for another occasion. The
reason for not addressing his account directly at present is in part because Harris asserts that
“any attempt to articulate a single conception of ownership . . . would be hopeless.” Id. at 75.
Indirectly, of course, my ambition to develop an idea of private ownership may address Harris’s
skepticism concerning what he takes to be the “open-ended character” of ownership. Id.
at 76.
4. In place of skepticism and legal realism, the approach I marshal gives special em-
phasis to the form that private ownership takes, as opposed to the functions it may serve.
While I do not seek to revive the Langdellian sort of legal formalism, taking form seri-
ously, as I argue below, is necessary for an adequate articulation of the idea of private
ownership.
5. I explain my usage of normative (in normative standing) in text accompanying note 47.
Private Ownership 3
II. THE DISTINCTIVENESS OF PRIVATE OWNERSHIP:
AN OVERVIEW
A theory of the idea of private ownership must begin with a working hy-
pothesis according to which this idea exists—that is, that it contains certain
necessary properties. More important, a theory of this kind must establish
the distinctiveness of this idea. It therefore must explain this idea on its own
terms rather than explain it away by casting this idea in terms of other ideas.
While there may be many different ways in which an idea may be charac-
terized as distinctive, I emphasize three basic ways: first, in relation to other
ideas concerning being in control of objects (especially possession); second,
in relation to the private or public form of legal ordering onto which it may
map; and third, in relation to other systems of property regulation such
as state-collective ownership. These three do not settle the case for private
ownership, to be sure; they set the stage for developing an account that is
sufficiently precise to capture the idea of private ownership in particular
rather than any other idea (despite potential levels of resemblance); that is,
a theory that fails to capture all three separately does not so much explain
the idea of private ownership as it explains it away.
First, an adequate idea of private ownership must be capable of distin-
guishing itself from another idea that figures prominently in many systems
of property regulation—namely, possession.
6
An account of the idea of pri-
vate ownership that in fact reduces this idea to possession does not defend
private ownership on its own terms. It fails to make independent conceptual
space, as it were, for private ownership. To assimilate private ownership into
possession is not to gain an insight but to lose a concept.
Second, an adequate idea of private ownership must account for the
distinctive way in which the law of property approaches private owners: as
agents who assert their special authority over nonowners rather than as
patients benefiting from the state’s policing of nonowners with relation to
owned objects.
7
By approaching owners as agents, the law of property takes
the form of private law as opposed to public law. Private owners are agents
insofar as they exercise the right to determine the standing of others in
relation to objects; and they additionally exercise the authority to vindicate
this right as a matter of (private) law. In that, they are viewed by the law
6. On the centrality of possession in property law, see Section III.A.
7. It is important to note, to forestall misunderstanding, that the conception of agency I
invoke in the main text above is a normative one. A normative conception of agency picks
out the authority of owners to fix the rights and duties that nonowners may have in relation
to objects. This conception of agency should not be confused with a functional conception
of agency. On the functional conception of agency, the owner holds the superior power to
determine the uses, agendas, purposes, or functions of an object, not necessarily the rights and
duties of other persons (the nonowners). I elaborate on this distinction in text accompanying
notes 56–60. I borrowthe terminology of agents and patients but not the theory or methodology,
from Daniel Markovits, How Much Redistribution Should There Be?, 112 YALE L.J. 2291, 2295
(2003).
4 AVIHAY DORFMAN
not merely as victims of wrongs done to them by nonowners but also as
plaintiffs who seek legally to compel nonowners to right these wrongs.
8
In
other words, property law in its private-law instantiation focuses on what
owners can do—how they can affect a change in the rights and obligations
of nonowners by the operation of their wills. A public-law protection of
ownership, by contrast, would pay special attention to the question of what
happened to owners: Were they wronged, and if so, what ought we—society
as a whole—to do about it?
Private ownership (and private property more broadly) has been a core
component of private law for many centuries.
9
Yet an account that fails
to capture private ownership’s private-law form is not merely inconsis-
tent with history. More important, it renders immaterial the entire legal
structure—the private-law legal structure—within which private ownership
is embedded. A theory of private ownership indifferent to this feature of
private ownership does not reflect the insignificance of the distinction be-
tween private and public legal orderings. The better view is that it repre-
sents a theoretical failure on the part of the theory of the idea of private
ownership.
Third, the emphasis on owners being agents rather than patients mani-
fests itself in connection not only with the form of law distinctive of private
ownership but also with its content. Indeed, ownership can take the form of
private law but nonetheless depart substantially from the lived experience
of private ownership in a market economy. This departure occurs especially
when owners are legally barred fromexercising rights to alienate objects (as
may have been the case in the past in certain Communist states). Severing
this power from owners turns them, in matters of exchange and commerce,
into the patients of a central planner, devoid of any control over the trans-
fer and reassignment of their own objects. As I argue below, this picture of
ownership—personal ownership—is qualitatively different from the idea of
private ownership.
Against the backdrop of these three short observations, the next stage
of the argument takes stock of the dominant account of private ownership
as the right to exclusive use of objects. The point of this exercise is not
merely to criticize the exclusive-use account of private ownership. Rather,
the point is to demonstrate and further elaborate on the importance of
the three distinctive features I am attributing to private ownership. As this
demonstration will seek to show, failing to account for the distinctiveness
8. See Benjamin C. Zipursky, Philosophy of Private Law, in THE OXFORD HANDBOOK OF JU-
RISPRUDENCE AND PHILOSOPHY OF LAW 623, 632–636, esp. 635 (Jules Coleman & Scott Shapiro
eds., 2002) (“The notion that a plaintiff is entitled to a right of action is . . . centrally important
to the idea of private law.”). Note that my insistence in the main text on the private-law form
of private ownership is not meant to deny that some public-law protection of ownership is
impossible, unwarranted, or even unnecessary. The point is that the private-law form is an
ineliminable aspect of viewing private owners as agents.
9. Although as I note below, this has not always been the case. See Section III.B.
Private Ownership 5
of private ownership bends the account under consideration in counter-
intuitive ways—that is, casting private ownership as an idea of possession,
which is perfectly compatible with being a species of public legal ordering
and which allows for categorical prohibitions against alienation (including,
in particular, market exchange). Rather than inviting skepticism about the
coherence of the idea of private ownership, this failure opens the space
for an account that seeks to take seriously the freestanding idea of private
ownership. The account I shall offer below seeks to fill out this space by
explaining private ownership in terms of a special power to fix and change
the rights and duties that nonowners have toward the owner with respect to
an object.
10
III. WHAT IS EXCLUSIVE USE A THEORY OF?
To set the stage for a critical examination of the exclusive-use idea of pri-
vate ownership, I shall commence with a brief elaboration of this idea. In
particular, I shall explain the nature of the relationship between exclusion
and use.
The exclusive-use account of ownership is in fact a framework shared by
different theories (with sometimes comprehensively different ideologies,
methodologies, and ambitions) that nonetheless casts private ownership
in terms of the right of an owner to exclude others from the object in
question. But exclusion as such is not the point of private ownership, as
most advocates of the exclusive-use theory of ownership insist. Indeed, it
would be odd to explain the grounds of private ownership in terms of
the categorical importance of the owner’s right to exclude others without
more, that is, without elaborating on the service that exclusion renders
values (such as autonomy) or social goals (such as efficiency). And this
service can get going in the first place through exclusion’s protection of the
right of the owner to use the object.
Indeed, seeking exclusion, at a more concrete level, means requiring
others to discharge a duty of forbearance, which is to say a duty not to
interfere with the excluder’s use of the thing. Symmetrically, any given
instance of the practice of private property of invoking the right to use a
thing implies a reason, indeed a duty, on the part of all others not to meddle
with this right-exercising. Thus the right to use a thing requires the right to
exclude others from the thing, and the right to exclude presupposes a right
to use. Or perhaps it would be more accurate to say that private property is
not just about excluding others and about the right to use, taken severally,
but rather about the right to exclusive use.
Thus the notion that ownership is essentially the exercise of a right to
the exclusive use of an object implies that nonowners incur a duty to keep
10. See Section IV.
6 AVIHAY DORFMAN
off objects owned by others and thus indirectly to sustain use by owners. As
emphasized on many occasions, there is a sense in which this simple account
of ownership captures the everyday meaning of assertions of the kind ‘this is
mine.’
11
That said, I argue that this account suffers from three deficiencies:
that it fails to explain ownership in terms other than possession (including
a special case of possession); that it fails to explain the private-law form that
private ownership takes; and that it fails to come to terms with the Marxian
distinction between personal and private property. I take each in turn.
A. The Possessory Theory of Private Ownership
Accounts of the right to exclusive use, as mentioned above, have dominated
theoretical reflections on property law for many centuries. However, these
are in fact accounts of possession (of whatever degree or strength). Black-
stone, whose remarks on the right of exclusive use are perhaps the most
familiar lines in the history of modern property law, elsewhere observes that
ownership, “property in it’s [sic] highest degree,” just is possession “without
owing any rent or service to any superior.”
12
Ownership, on the standard
theory of exclusive use, has been at best a particular case of possession,
not an idea or concept that stands on its own independent feet. Or so I
am arguing. It is worth observing at the outset that whether possession can
generate property rights (including, in particular, ownership), and whether
ownership is necessarily relative or absolute are familiar questions in legal
history as well as theory, giving rise to important insights concerning the
relationship between possession and ownership.
13
My argument draws on
these insights to develop a conceptual claim concerning the logical object of
any theory of ownership emphasizing the entitlements of persons to the ex-
clusive use of things—namely, it is possession rather than ownership. Thus
I do not claim (at this stage of my argument) that ownership picks out this
or that idea. Rather my claim is that the right to exclusive use is a defining
11. See, e.g., BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION (1977) (distin-
guishing between the standpoints of ordinary observer and scientific policymaker); STEPHEN
R. MUNZER, A THEORY OF PROPERTY 16 (1990) (contrasting popular with scientific conceptions
of property); CAROL M. ROSE, PROPERTY AND PERSUASION: ESSAYS ON THE HISTORY, THEORY, AND
RHETORIC OF OWNERSHIP 1 (1994) (casting the everyday meaning of ownership in terms of an
exclusive right to a thing).
12. 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND

105 (1979) (1766). The
quoted excerpts appear in Blackstone’s discussion of fee simple. There Blackstone aims to show
that this kind of estate is recognized as private ownership by the common law. It is important
to note that at other places in his Commentaries, Blackstone does distinguish clearly between
possession and what he often calls right of property. See, e.g., 3 id. at

190–191. It is beyond the
purpose of my argument to adjudicate beyond the conflicting accounts of ownership in the
Commentaries.
13. For a celebrated account, see FREDRICK POLLOCK & ROBERT S WRIGHT, AN ESSAY ON POS-
SESSION IN THE COMMON LAW pts. I–II (1888). For the distinction between relative and absolute
ownership, betweencommon-lawandRoman-lawviews of ownership, see H.F. JOLOWICZ &BARRY
NICHOLAS, HISTORICAL INTRODUCTION TO THE STUDY OF ROMAN LAW 145–166 (3d ed. 1972).
Private Ownership 7
feature of possession, and therefore an account of ownership cast in terms
of exclusive use necessarily fails to explain ownership in terms other than
possession (including the highest degree of possession).
14
I shall commence with noting that possession can be thought of as a
range property (to borrow from John Rawls),
15
with factual possession cap-
turing one extreme of this range and ultimate possession, ownership, at the
opposite end.
16
In between there exist different instances of rightful posses-
sion (e.g., being the finder of a lost or mislaid object; bailee; and tenant).
This range of possessory interests represents varying degrees of the right to
exclusive use. Each case of possession (including mere factual possession)
features a right to exclusive use, with the only difference being the number
of people excluded by the law from the object in possession. This is most
eloquently articulated in The Common Law, where Oliver Wendell Holmes,
after observing that the “rights of ownership” are “substantially the same as
those incident to possession,” offers the following distinction: “The owner
is allowed to exclude all, and is accountable to no one. The possessor is
allowed to exclude all but one, and is accountable to no one but him.”
17
Even this picture is overdrawn, since the highest degree of possession—
ownership—is never literally exclusive or otherwise absolute. Indeed, pro-
ponents of ownership absolutismsuch as Blackstone have always recognized
any number of ways in which exclusive use is not, after all, a legal right to use
an object to the exclusion of all others in all situations. There is abundant
evidence in law to the effect that the exclusive use attached to ownership is
relative.
18
Thus the exclusive use characteristic of private ownership is not
14. The argument inthe maintext focuses almost exclusively onthe common-lawprinciples,
doctrines, and materials pertaining to possession. However, legal protection of possession as
such, including factual possession, was familiar in the Roman-law system as well, despite the
(disputable) fact that it embraced an absolutist view of ownership rights. See Peter Birks, The
Roman Law Concept of Dominium and the Idea of Absolute Ownership, 1985 ACTA JURIDICA 1, 29
(noting that “the protection of possession went on without reference to entitlement: to be a
protected possessor was no indication of the rightfulness of possession.”); see also id. at 29–31
(the Romanist concept of ownership, despite its absolutist nature, admitted relative protection
of possession as such). Cf. JOLOWICZ & NICHOLAS, supra note 13, at 146–155, 259 (arguing,
against Max Kaser’s theory of relative ownership, that Romanist ownership law was absolute,
meanwhile finding that possession “without reference to its rightfulness or wrongfulness”
received legal protection through possessory interdicts).
15. JOHN RAWLS, A THEORY OF JUSTICE 508 (1971) (employing the notion of range property
in the context of singling out the natural capacities of persons that make them worthy of equal
justice).
16. See generally D.R. Harris, The Concept of Possession in English Law, in OXFORD ESSAYS IN
JURISPRUDENCE 69, 73 (A.G. Guest ed., 1961).
17. OLIVER WENDELL HOLMES JR., THE COMMON LAW 246 (1881).
18. See, e.g., Ploof v. Putnam 71 A. 188 (Vt. 1908) (private necessity); RESTATEMENT (SECOND)
OF TORTS §196 (1965) (public necessity); McKee v. Gratz, 260 U.S. 127, 136 (1922) (customary
limitations on the right to exclude); Countryside and Rights of Way Act 2000 (a limited right to
ramble around uncultivated private land across England and Wales); DAN B. DOBBS, THE LAW
OF TORTS §76, at 173 (2000) (authority to enter the land of another to make arrests). Of course
this is only a partial list. For the proposition that the Romanist idea of ownership, although
absolute on its face, “was not, strictly, absolute,” see Birks, supra note 14, at 1.
8 AVIHAY DORFMAN
even a qualitatively different case of possession; the nature of its departure
from other cases of possession is merely a matter of degree.
A similar conclusion—that the exclusive-use account of ownership picks
out a theory of possession rather than a freestanding idea of ownership—is
reached by recalling the obligation on the part of nonowners to exclude
themselves from the properties of others. As I shall observe below, this is an
obligation to respect possessory interests, not necessarily and not even mainly
ownership rights.
To begin with, the obligation of noninterference or keeping-off men-
tioned above, whose existence is the ultimate expression of the exclusive-use
idea of ownership, often takes the form of a tort duty against committing
trespass upon the property of another.
19
Proponents of the exclusive-use
conception of private ownership routinely emphasize, indeed celebrate,
the rigid protection it provides owners against unwelcome invaders—in
particular, its imposition of strict tort liability and the powerful arsenal of
remedies (including injunctive relief and punitive damages) it may render
in protection of victims of trespass upon land or chattel.
However, trespass sustains exclusive use of objects by their possessors,
including possessors whose claim for exclusive use does not stem from a
right to possession or a title more generally.
20
Simply put, actual possession,
rather than ownership, is the ground of the common-law duty of nonin-
terference; moreover, an owner who is out of possession does not have the
standing to sue for trespass.
21
Of course, the class of person brought under
the duty of noninterference may vary depending on the kind of possessory
interests in question (say, an outlaw possessor may not be able to enjoin the
dispossessed owner from recovering her object but he may sue others for
trespassing against the object in his possession). But just like the relative
right to exclusive use mentioned above, the protection provided to posses-
sors of any sort (owners included) is relative in nature. Thus variations in
degree of protection need not strike a qualitative rather than a quantitative
difference between mere actual possession and the rightful possession of
an owner.
This analysis strikes a familiar cord in the lived experience of common-
law property lawyers (as well as common-law historians), as legal disputes
over property entitlements, including actions for the recovery of property
(formerly called ejectment), give rise to the question of who holds the better
right to the possession of the object in dispute.
22
John Fleming puts the
point succinctly, observing that with respect to actions for the recovery of
19. See PENNER, supra note 2, at 72; Henry E. Smith, Exclusion and Property Rules in the Law of
Nuisance, 90 VA. L. REV. 965, 992 (2004).
20. See, e.g., DOBBS, supra note 18, at 102–103.
21. See, e.g., W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 78 (5th ed.
1984).
22. For a standard account to this effect, see E.H. BURNS, MODERN LAW OF REAL PROPERTY 26
(16th ed. 2000). For a historical account in this spirit, see S.F.C. MILSOM, HISTORICAL FOUNDA-
TIONS OF THE COMMON LAW 119 (2d ed. 1981).
Private Ownership 9
disseised property, the common law “recognises only relatively good or bad
rights to possession.”
23
Against the backdrop of the preceding discussion there emerges a rough
but nonetheless good sense of the proper place of exclusive use within
the structure of the common law of property. I show above that the right
to exclusive use is first and foremost a feature of possession. Analytically
speaking, it is not distinctive of ownership. Moreover, its legal protection
renders the fact of ownership unnecessary (and, according to the leading
scholars mentionedabove, also immaterial). More precisely, ownershipdoes
not seem to be doing any work in the legal protection of the right to
exclusive use apart fromplaying an evidentiary role—that is, ownership helps
in establishing the strength of a claim for a better, though not necessarily
the best, right to possession when compared to similar claims made by
nonowners.
24
Thus a conceptual account emphasizing that private ownership is essen-
tially a right to exclusive use does not state the case for a freestanding idea of
ownership. Rather it explains ownership in terms of possession and there-
fore explains away whatever it is that renders ownership a distinctive form
of being in control (in the right sense) over an object. Proponents of the
exclusive-use account of ownership may concede in return that ownership
is indeed at its core an instance of possession.
25
They may also claim that
this is an importantly special instance of possession, standing at a critical
distance from any other case of (wrongful or rightful) possession. But as I
shall argue in this section, it is not clear why an owner’s right to exclusive
use is so special. The only way out of this embarrassment is to argue that
ownership presents the most powerful right to possession of all (though,
recall, it never amounts to an absolute right to exclusive use). But this gam-
bit does not overcome the initial difficulty of articulating an account of
ownership solely in terms of possession. After all, appealing to the strength
of owners’ rights to exclusive use means that we keep coming back to pos-
session, including the highest degree of possession. To defend ownership’s
special right of exclusive use in terms of a particularly powerful instance of
23. The relevant passage reads:
[T]he common law continued to adhere to the principle, developed in relation to the real
actions, that the nature of the right asserted in ejectment is merely the plaintiff’s better
right to possession rather than abstract ownership or an absolute right good against the
world. Thus, our modernlaw, like the medieval, recognises only relatively goodor relatively
bad rights of possession.
JOHN G. FLEMING, THE LAW OF TORTS 49 (8th ed. 1992). But see JAMES GORDLEY, THE FOUNDA-
TIONS OF PRIVATE LAW 49–65 (2006) (denying the historical truth of the possessory account of
ownership).
24. I say not necessarily the best in recognition of cases such as adverse possession, according to
which mere possession may defeat title. Adverse possession is certainly not alone in qualifying
ownership’s strength as a claim for the better right to possession.
25. The familiar adage according towhich“possessionis the root of title” is but one reminder
(in the area of original occupancy) of the relationship between ownership and possession.
10 AVIHAY DORFMAN
possession is, again, to explain ownership in terms of possession—an ex-
clusive use by owners just is (the highest degree of) possession. In order
to stand out as an account of ownership as such, the explanation of the
right to exclusive use must employ conceptual materials other than pos-
session, which might be impossible because there is nothing to say about
exclusive use other than that it is a defining feature of the legal protection
of possession.
26
B. Exclusive Use and Private Legal Orderings
Most modern systems of private ownership give rise to normative relations
between right-holders and duty-holders inter se.
27
Nonowners have obli-
gations that are owed to and owned by property owners. In other words,
these are obligations that run from the former directly and exclusively to
the latter, the enforcement of which therefore is vested in the latter’s dis-
cretion. Society as a whole facilitates this private legal ordering, to be sure,
and at a deeper level makes it possible to begin with. But once the system of
private ownership gets going, society takes the backseat, allowing for private-
law rights and duties to engender normative relations between owners and
nonowners, as mentioned above.
The private-law structure that private ownership takes appears at first
glance to be natural. In fact it is anything but natural. The fact that contem-
porary private law provides for the protection and enforcement of owner-
ship rights by means of imposing private-law duties on nonowners is what
one must explain rather than assume. The divide between private and pub-
lic law, between proprietary tort and crime, was anything but familiar in
the early days of the common law. Trespass upon land, for example, was
a wrong of breaching the king’s peace, the medieval equivalent of public
order, as much as it was a private wrong done to the person in possession
of that land. Furthermore, a modern version of a public-law institution of
private property is not impossible to imagine once it is sought. For instance,
it might combine criminal-law duties (which are owed to society) against
trespass with a public scheme of insurance (financed through general tax
26. It is important to note, before moving to the next stage of the argument, that my
argument—viz., that the exclusive-use account explains what ownership is solely in terms of
possession and therefore explains it away—does not turn on the normative considerations in
favor of protecting the exclusive use of possessors. Certainly, the reasons for sustaining the
right to exclusive use by owners may be entirely different from the reasons for protecting a
similar right in the case of nonowners (either wrongful or rightful possessors). The relativity of
possessory interests reflects this reality. However, insofar as these considerations, in the case of
ownership, are cashed out in terms of legal protection of exclusive use, ownership becomes an
instance of possession and so its explanation (rather than justification) is made by reference
to the concept of possession.
27. By normative relations I mean a form of human connection established through legal or
moral rights and obligations (and norms more generally) rather than merely social relations.
Private Ownership 11
coffers) to compensate owners for losses to their property resulting from
violation of the (criminal) law against trespass.
28
Now, it is of less importance for the purpose of my argument to consider
in depth aspects of these or other alternatives, including their desirability.
It is important, however, to ask whether the idea of ownership (whatever it
is) can account for the private-law form that the system of private ownership
currently takes. Indeed, a public-law institution of private ownership seems
remarkably different from what we have. And an explanation of the nature
of private ownership that remains flatly indifferent to the form that it takes
(whether private or public) falls short of providing an adequate account of
this basic feature of private ownership. This is not only because it departs
significantly from the lived experience of the current system of private
ownership, but also because it settles on an extremely parochial explanation
of the idea of private ownership. It amounts to saying that ownership could
feature a three-place relationship between nonowners, society at large, and
an object. On this relationship, a nonowner owes a duty of noninterference
to society (as in all duties of criminal law) with respect to an object that
is privately owned by another individual. The owner herself is left outside
this triangle, rendering the agential status of the private owner redundant
(which is a position of extreme opposition to private ownership’s current
empowerment of the owner as constituting a legal authority over nonowners
in relation to her object).
29
And yet this is precisely what the exclusive-use idea of private ownership
may claim for its own theory. Anything beyond this claim—in particular,
that private ownership takes the form of private law—falls outside the con-
ceptual materials of this account. This is not to say that this account is not
compatible with the private-law form. Rather the argument is that the con-
ceptual materials of the exclusive-use account fall short of taking notice of,
let alone specifying, the private-law aspect of ownership; still less do they
explain why it must be the case that private ownership gives rise to rights
of action on the part of owners and duties of noninterference owed to and
owned by them.
Indeed, the notion that ownership is in essence the right of exclusive
use begins with the importance of allowing owners the right to the unin-
terrupted use of their objects. Grounded in considerations ranging from
freedom to efficiency, this is the right to be the lord of one’s own castle.
The centerpiece of this analysis, however, is the correlative duty incurred
by nonowners, with the content of keeping off the castle in question.
30
28. A substantially similar approach has been adopted in New Zealand with respect to
personal injuries. For an overview, see Geoffrey Palmer, New Zealand’s Accident Compensation
Scheme: Twenty Years On, 44 U. TORONTO L.J. 223 (1994).
29. I say more about the legal authority characteristic of owners below.
30. See Larissa Katz, Exclusion and Exclusivity in Property Law, 58 U. TORONTO L.J. 275, 281
(2008) (noting that onthe exclusive-use account, “[o]wnership . . . is the product of a normthat
protects the boundaries around an object so as to exclude the whole world but the owner.”).
12 AVIHAY DORFMAN
Larissa Katz accurately observes that the exclusive-use account of owner-
ship presents “a theory of nonownership.”
31
Thus, soon after establishing
the liberty to use one’s own object, this approach to the idea of ownership
moves forward and away from this liberty to elaborate extensively on the
duties of noninterference mandated by the idea of ownership as exclusive
use. However, it is not clear whether owners figure in these duties in any
significant way.
Furthermore, it even seems that for some prominent theories of exclusive
use, the duties of noninterference are akin to in rem duties, owed to “the
plurality of property holders”
32
or to “a large and indefinite class of holders
of [property] rights.”
33
And they depart in nature, rather than merely in
kind, from duties in personam, owed to a particular owner or a specific class.
However these duties are cast, the right to exclusive use does not specify any
particular connection between the right-holder, the owner, and her correl-
ative duty-holder, the nonowner. It does require that the law see to it that
nonowners be excluded from property not theirs so that owners can enjoy
the liberty (within limits) to deploy their objects. But the right to exclusive
use cannot provide us with further details concerning the precise legal form
that these duties of abstention take: Are these duties owed to and owned
by each owner in particular or the entire society a whole (or perhaps an
intermediary class of people)? Indeed, criminal-law duties are, conceptually
speaking, perfectly compatible with the need to sustain owners’ rights to
exclusive use (even if they are arguably less desirable for whatever reason),
which is to say that the idea of ownership that emphasizes the right of exclu-
sive use fails to account for the special normative power exercised by owners
in the administration of their own rights. They could become patients, as it
were, of the criminal-law system, the mere beneficiaries of society’s commit-
ment to sustain public order by protecting their liberties to use their own
objects to the exclusion of others.
34
C. Is Personal Property a Private Property?
Although Marx’s name is justly synonymous with the abolition of pri-
vate ownership—the property regime enshrined in the modern bourgeois
society—and with the installment of the scheme of collective ownership he
31. Katz further observes that the conceptual center of the exclusive-use theory is the
elaboration of “a general duty not to cross over the boundaries of objects one does not own.”
Id. at 277. As I note below, it is an open question whether Katz’s account overcomes her own
critique of the exclusive-use account.
32. PENNER, supra note 2, at 27.
33. Thomas Merrill & Henry E. Smith, The Property/Contract Interface, 101 COLUM. L. REV.
773, 789 (2001).
34. As a preeminent historian of the common law observes, in the early lawsuits for wrongs
(such as trespass) “the essence of the victim’s role in such proceedings lay not in their initiation,
as has been supposed, but in making the proof. He was a witness.” MILSOM, supra note 22, at
285.
Private Ownership 13
proposes instead, he is careful not to overstate the change he is advocat-
ing.
35
In particular, Marx warns his readers not to confuse this grand thesis
with the abolition of what he calls personal property: it is only private, not
personal, property that must and will die. Before getting to the crux of this
distinction, it would be important to note that the value of this distinction
for contemporary discourse about private ownership does not (or at the very
least need not) lie in the adequacy of employing the idea of private property
in the way Marx did or, more broadly, in the merits of the abolitionist thesis;
rather it is important because this distinction has direct bearing on what an
adequate theory of private ownership should account for.
By personal property, Marx does not meanto followthe familiar common-
law characterization of this term—that is, the class of movable things as op-
posed to real, immovable things.
36
Nor does he identify personal property
with objects of intimate or sentimental value.
37
Instead, Marx develops the
notion of personal property by reference to a distinction, familiar at least
since Aristotle, between two values credited to owned objects. An object can
be a bearer of use-value, though it need not have this (as when the object
is fiat money); it may also be a bearer of exchange-value. The distinction is
not a feature of some inherent characteristic of the object in question (e.g.,
a toothbrush is normally appreciated for its use-value but it can certainly be
understood as a competitor for the dentist’s tools). Rather it derives its va-
lidity from two independent sources:
38
the economic condition and, more
important, the law’s official attitude toward economic markets. The former
source accounts for economic modes of social organization that empha-
size self-sufficiency or communal production at the expense of exchange.
Feudal England operated for some time under these circumstances with
a corresponding static system of ownership, namely, personal property (in
the Marxian sense). The latter source pertains to a legal order featuring
a planned economy sustained by laws against individuals’ engagements in
35. In the Manifesto of the Communist Party Marx and Engels boldly assert that “the theory
of the communists may be summed up in the single sentence: Abolition of private property.”
KARL MARX & FRIEDRICH ENGELS, MANIFESTO OF THE COMMUNIST PARTY, in KARL MARX: SELECTED
WRITINGS 232 (David McLellan ed., 1977).
36. See 2 BLACKSTONE, supra note 12, at

384ff (“Under the name of things personal are
included all sorts of things movable, which may attend a man’s person wherever he goes.”)
37. Moreover, personal property in the Marxian sense is not the same as personal property
in the justification of private ownership made familiar in Margaret Jane Radin, Property and
Personhood, 34 STAN. L. REV. 957 (1982). The former is predicated upon the nonmarket eco-
nomic value, whereas the other is predicated upon the object’s contribution to the ethical and
psychological development of its owner.
38. The analysis in the main text is my reconstruction of the Marxian distinction between
use value and exchange value; it is by no means an attempted exegesis of his work. My re-
construction draws on MARX, THEORIES OF SURPLUS VALUE, and MARX, CAPITAL, especially Part
VIII of vol. I. It rejects the orthodox approach according to which the distinction in question
is meant to capture the divide between nonproductive (e.g., a toothbrush) and productive
objects (e.g., a steel factory). As I explain in the main text above, even one’s toothbrush has an
exchange value. Moreover, a steel factory can fall within the category of objects of use value,
say, if it is family-run and its output is put to use in the farm of this same family.
14 AVIHAY DORFMAN
transactions, especially commercial ones but possibly also noncommercial
ones (such as making bequest or giving a gift).
The former Soviet Union came very close to the state of affairs depicted
above when it abolished private property, installed a planned economy,
and nonetheless recognized a system of personal property.
39
To illustrate
the point, a second house held as a real estate asset, hence as a bearer
of exchange value, could not have been owned personally. But if it served
the owner as a country house, the result was the opposite, and the house
became a recognized object of personal property.
40
Against this very rough sketch of the Marxian idea of personal property
I shall argue that the exclusive-use idea of ownership picks out personal
rather than private property. Moreover, I shall suggest that a theory of
private ownership that applies the same idea of ownership across diverse
systems of property law such as feudal England, the Soviet Union, and the
modern West renders this idea useless for want of theoretical and practical
guidance.
It is important to note, to forestall misunderstanding, that my argument
does not aim at collapsing contract law into property law or vice versa.
Contrary to J.E. Penner’s insistence on keeping them strictly separated,
41
I do not argue that private ownership just is the combination of personal
ownership and contract. Rather, a logically and normatively prior question
to contract law is whether people are entitled to participate in such a prac-
tice to begin with. Having the liberty (in the Hohfeldian terminology) to
approach owners with a business offer relating to the owners’ object is not
the same as intending to enter, let alone entering, a contractual relation-
ship with the owner. Similarly, having the power to exchange one’s object is
not the same as intending to make, let alone making, an exchange. Thus,
rather than mixing categories of property and contract, the distinction be-
tween private and personal ownership turns on the powers that each system
of property grants or denies owners, respectively. The distinction concerns
the normative preconditions for contractual relationships rather than the
contractual relationships themselves. More precisely, it renders vivid the hi-
erarchical nature of the relations between private ownership and contract:
it is a transcendental condition of the possibility of the latter that the for-
mer obtains. This legal hierarchy between private ownership and contract
39. For the proposition that the Soviet Union adopted the Marxian distinction between
private and personal property, see M. TSUNTS, I. FURMAN & S. YEZERSKAYA, PERSONAL PROPERTY IN
THE SOVIET UNION 11 (S. Smith trans., 1960). There the authors cite The Communist Manifesto’s
distinction between personal and private property and note that “[t]he socialist state does not
repudiate personal property, but encourages its growth.” Id. For the property arrangement in
the Soviet Union, as mentioned in the main text above, see W.E. BUTLER, SOVIET LAW 180 (2d
ed. 1988).
40. See BUTLER, supra note 39, at 185. And see id. at 183: “whether an object may be personally
owned is less a question of its natural properties than the actual nature of its use.”
41. See infra note 42.
Private Ownership 15
may be so ubiquitous that it often takes a distinction between personal and
private ownership to call our otherwise unreflective attention to it.
As mentioned above, the theory of ownership as fundamentally a right to
exclusive use focuses on the duties of noninterference that arise in connec-
tion with the owner’s freedom to exploit her object uninterrupted. These
duties do not apply to interactions between owners and nonowners as they
seek, on the standard account, to separate them from one another, or so
the adjective exclusive entails. It is possible, of course, to extend the right
to use an object to capture the right to alienate it and indeed to exchange
it in a market transaction; most proponents of exclusive use are not at all
hostile to economic markets. However, this extension does not originate
from the idea from which the exclusive-use account begins—that is, the
right to exclude others from the boundaries of one’s object (and the cor-
relative duty to keep off this object). Thus the right to take one’s object to
the market is perfectly compatible with the right to exclusive use, but the
former right is not a feature of the latter one. It is not, in other words, an
inherent element of the idea of private ownership but rather an additional
component. Indeed, leading scholars of the exclusive-use account insist on
this point, seeking (for entirely different reasons) to purge the idea of pri-
vate ownership of commercial or transactional traits, limiting the essential
core of ownership to the right to restrict others from an object not theirs.
42
It is not incoherent or otherwise mistaken to develop a theory of the idea
of private ownership without any reference to an owner’s legal power to give
her title away in return for some consideration. Depending on the context
in which it is deployed, this idea may even count as a virtue since it could
illuminate the extent to which private ownership has a truly fixed mean-
ing, capturing radically different periods in the historical development of
human institutions of property. Nevertheless, the virtue is straightforwardly
balanced insofar as the idea in question cannot even begin to make sense
of the difference in character, rather than merely scope, of the powers
and rights society confers upon owners. It may even miss entirely the phe-
nomenon of fiat money, perhaps the most prominent object of private own-
ership at the present time, carrying nothing but exchange value.
43
Above
I argue that the right to exclusive use, because it is indifferent to the legal
form that private ownership takes (criminal or civil law), fails to account
42. Thus Waldron argues that the more restricted the definition of ownership, the less
controversial it would be. The right to exchange (and different other rights not related to
exclusive use) should for this reason be cast away. See WALDRON, supra note 2, at 50–55. Penner
argues that ownership promotes the owner’s autonomy and that exchange promotes an inter-
personal activity of engaging others in a joint activity. Therefore the latter does not form an
organic aspect of the concept of ownership. See PENNER, supra note 2, at 91–92. See also Merrill
& Smith, supra note 33 (emphasizing exclusion and distinguishing it from the legal practice
of contract).
43. I do not mean to imply that a systemof personal property cannot operate in concert with
an economic environment featuring fiat money. Rather, fiat money and the idea of owning it
are immaterial and indeed conceptually insignificant for a system governing the use value of
objects.
16 AVIHAY DORFMAN
for the special agential status of owners. Now I return to this argument,
this time approaching the special status of owners through the lens of the
distinction between personal and private property.
The legal powers vested in a Soviet citizen owning personal property (say,
a TV set) and in her Western fellow owning the same object as private
property are different not only in degree—more or fewer rights—but also
in the nature of these powers. As I argue above, the possessory account of
ownership admits of a sliding scale of degrees: the right to exclusive use
characteristic of ownership is only relatively higher, so to speak, than other
instances of possession. Unlike the relativity of possessory rights, the move
fromthe right to exclusive use to the right to purchase or sell one’s property
on the market—to take advantage of the exchange value of one’s object—is
not a move to some higher position on the scale of exclusive use. Rather it
empowers the owner to participate in the very market for rights to exclusive
use of objects. This difference is anything but trivial to the understanding
of private ownership. It expresses the difference between being an owner
in a society with a legal ban on market transactions and holding the legal
power actively to engage others in commercial exchange.
44
IV. OUTLINE OF A THEORY OF PRIVATE OWNERSHIP
A. Private Ownership
Insofar as society seeks to avoid the Hobbesian state of nature, it must order
its members’ affairs involving external objects. Indeed, there are certain
objective conditions (the circumstances of property, if you like) that call
for establishing a scheme of coordination between the members of society
as regards external objects. Moderate scarcity is perhaps the most familiar
condition.
45
However these conditions are cast, it is clear that every society
must settle on some scheme that solves questions such as (but not limited
to) who can use and profit from which object and how they can do this.
To be sure, the conditions that give rise to a system of property need not
44. Whereas the difference I am arguing for is moral or legal, there may surely be psycho-
logical implications to living under a property regime that denies owners the right to sell their
objects on the market. See Richard Pipes, Human Nature and the Fall of Communism, 49 BULL.
AM. ACAD. ARTS & SCI. 38 (1996).
45. While it is beyond dispute that scarcity makes coordination a difficult achievement, this
might not be a conceptual truth about the need for property coordination. For this need can
arise from another direction—namely, the human condition characteristic of modern, com-
plex societies. In these societies, persons may disagree over substantive questions of all sorts,
ranging from justice in holdings to the concrete arrangements of particular persons’ holdings.
Some of these disagreements do not turn on scarcity. That is, the source of disagreement—
the fact of pluralism, as John Rawls calls it—has no perfect overlap with scarcity. Moreover,
Lawrence Becker observes that insofar as private ownership (or property rights more generally)
is necessary in order for persons to be well-functioning ethically speaking, an economic reality
of scarcity is sufficient but not necessary for a private-property regime to arise. See LAWRENCE
C. BECKER, PROPERTY RIGHTS: PHILOSOPHICAL FOUNDATIONS 6 (1977).
Private Ownership 17
determine, either partly or wholly, the shape of this system—this task is
normative, never merely causal.
Property, understood as a system of rules and principles pertaining to
external objects, takes up this need for coordination. The idea of private
ownership presents a form of solution by introducing a system of rules and
principles relating to property coordination.
46
It identifies correctly that
which lies at the root of this system: a question concerning people’s norma-
tive standing, by which I mean the legal (and perhaps also moral) rights and
duties held against one another with respect to an object.
47
In particular,
it gives rise to a first-order question concerning the normative standing of
people to an object and a second-order question concerning the normative
standing to determine the former question. As I shall suggest below, private
ownership is a three-place relationship between owner, nonowners, and an
object that can be described in the following manner. Being an owner in-
volves a special normative power—that is, the power to change (in some
nontrivial measure) the rights and duties that nonowners have toward the
owner with respect to an object. More precisely, private ownership comes
into being whensociety vests practical authority inanindividual (the owner)
to fix in some measure the normative standing of others in relation to an
object.
Thus a legal institution of private ownership operates by generating, so
to speak, in rem signals (good against the world) conveying the following
normative content: the point of view of the relevant owner—through which
she forms intentions and indeed negotiates the world as a free and equal
agent—must be accorded some specified measure of respect and recogni-
tion in many sorts of interaction that others have or intend to have with
objects not theirs. That is to say, whatever one’s course of action, one must
accept the point of view of the owner as an independent constraint on one’s
own plans (insofar as these plans include the employment of an object not
one’s own), not just as one judges fromhis own point of viewwhat this owner
may require, but rather what the owner actually requires.
48
This embrace
of the point of view of the owner as an independent source of claims en-
genders normative relations of two general kinds. Negatively, the authority
on the part of the owner demands that potential intruders take (to some
extent) the point of view of the owners as their guide to conduct insofar as
46. There are other competitive or complementary systems (such as state property) but I
set these to one side.
47. Normative standing should, therefore, be distinguished fromother ways inwhichpeople
can stand in relation to an object. Thus, people can stand in causal or factual relations to an
object (perhaps because they happen to hold it); or they may be tied affectively to it (because
it once belonged to their ancestors). Neither of these nonnormative standings need obtain for
the normative aspect of standing to arise.
48. The last part of the sentence in the main text is meant to distinguish between what one
impartially takes the judgment of another to be and the (unfiltered) judgment of this other.
For more on the crucial place of owner’s unfiltered judgment, see KEETON ET AL., supra note
21, at 113.
18 AVIHAY DORFMAN
the decision of the owner fixes the normative standing of the intruders to
the owner’s object. Positively, if a nonowner seeks to affect a change in her
normative standing to that object, she is required to engage the point of
view of the owner. In many cases (most importantly, cases involving mem-
bers of a modern society) this engagement will take the form of a contract,
including negotiations that precede the contract.
As I characterize it here, private ownership—the authority to fix the nor-
mative standing of others in relation to an object—overcomes the shackles
of the possession-based theory of ownership, the equivocation of the pri-
vate/public legal ordering, and the equivocation of the personal/private
property. I take each one in turn below.
I begin with the notion that the right to exclusive use is a feature of pos-
session as such, not distinctively of ownership. Actual possessors, to repeat,
exercise some degree of legal power to use the object in possession to the
exclusion of most others. So do rightful possessors, including (ultimately)
owners in possession of their objects. An actual possessor, however, can
change the normative standing of no one in relation to an object in her
possession—she is a possessor, not an owner. A trespasser seeking to enter
the land held by an actual possessor (who is herself a trespasser) remains
a trespasser even if the latter invites or otherwise allows him to enter. With
respect to both persons, the owner is the only one with the authority to
change their normative status—to turn them from trespassers into holders
of some right with respect to her object (such as an easement or tenancy).
Rightful possessors other than the owner may assume this authority only
insofar as the owner, the source of this authority, has delegated it to them.
Moreover, an adverse possessor could gain this authority only insofar as her
possession entitles her, after a limitation period, to a de facto ownership.
Against this backdrop, the relativity of the right to exclusive use and of
possession more generally is replaced (on my proposed account) by the
qualitatively different characteristic of ownership—the establishment of a
connection between an authority (owner) and its subjects (nonowners) con-
cerning the latter’s legal relation to the former’s object. However limited
this authority may be in some cases (say, cases of necessity), the strict sepa-
ration between those who have it and those who do not remains as firm as
before. Thus it overcomes the relative superiority of possessory rights, since
the right to fix the normative standing of nonowners is vested exclusively in
the owner and those to whom she either delegates her authority or losses it
completely through adverse possession. In short, there may be any number
of possessory interests held by different persons in respect to an object but
only one authority in control of the normative standing of all other persons
in regard to an object.
The idea that ownership involves the authority to fix in some measure
the normative standing of others in relation to an object possesses the
right conceptual materials with which to illuminate the private-law char-
acter of private ownership. This is because ownership (on the proposed
Private Ownership 19
account) engenders a normative relationship specifically between an owner
and nonowners. The duties incurred by nonowners, as mentioned above,
are to respect the point of view of the owner, that is, her intentions con-
cerning nonowners’ normative standing in relation to her object. These
are straightforward duties owed to and owned by each owner in particular.
Thus, whereas the right to exclusive use is compatible with the status of own-
ers as patients of the criminal-law system, the account I develop emphasizes
that owners are agents actively exercising legal authority over others. This
is easiest to see in the paradigmatic private-law case of an owner making
and carrying out a contract with a nonowner with regard to her object. A
contract of this kind can be made in the first place only insofar as owners
under a system of private property hold the authority to change the norma-
tive standings of others, including (most importantly) transferring to them
the authority itself.
Finally, I shall briefly return to the Marxian distinction between personal
and private property. The proposed account casts into sharp relief the con-
ceptual and normative gulf that exists between owners of personal property
and their counterparts who own private property. The former may have
the right to exclude some others from their object, but they are otherwise
completely impotent, legally speaking, since their positions qua owners give
them zero legal power over the normative standing of others.
49
More pre-
cisely and more dramatically, it is prohibited by law to engage nonowners
in relations (such as the sale of goods) that aim to change the latter’s nor-
mative standing and more broadly to assume authority over one’s fellow
compatriots in relation to objects. The idea of private ownership, on my ac-
count, emphasizes this authority as being the single most important feature
thereof, which is, for liberal egalitarian societies, also the most normatively
controversial aspect of the modern idea of private ownership.
50
49. Owners in a personal-property system may of course decide not to exercise their rights
to exclude others by inviting nonowners in. But this act does not amount to a change in the
normative standing of others since they have not earned any right in relation to the object in
question other than a mere license. The system of personal property I have in mind does not
allow owners to vest others with rights to their property. This may not have been the actual
system operating in the Soviet Union, but in principle it is possible for personal property to
take this form.
50. Surely the right to exclusive use (of whatever degree) is controversial as well. Indeed, the
background conditions under which a person could acquire this right are morally arbitrary—as
when a person is simply born into a wealthy family in a wealthy state that is located on a wealthy
continent. That said, a starting-gate theory of distributive justice could correct for this source
of inequality by neutralizing the negative and positive effects of chance. However, even when
this stage can be completed successfully, a further source of inequality appears in connection
with the rights of owners to take their objects to the market, whose operation pays no particular
attention to concerns of moral desert, chance, and choice (which are generally considered
by liberal egalitarians as key elements in the pursuit of equality). At this stage, starting-gate
redistribution is inadequate, and it is an open question among egalitarians how to respond to
inequalities generated by markets, whose operation presupposes private property and rejects
personal property. For more, see Elizabeth Anderson, How Should Egalitarians Cope with Market
Risks, 9 THEORETICAL INQUIRIES IN LAW 239 (2008); Daniel Markovits, Luck Egalitarianism and
Political Solidarity, 9 THEORETICAL INQUIRIES IN LAW 151 (2008).
20 AVIHAY DORFMAN
Before I move to the next stage of the argument, it will prove helpful to
consider very briefly a recently articulated account of private ownership that
emphasizes the position of the owner as setting the agenda for her object.
The reason is that this account emphasizes the authoritative position of
owners, updating an analogy between property and sovereignty familiar at
least since Morris Cohen’s classical essay “Property and Sovereignty.”
51
It
would therefore be in order to spell out its important distance from my
outlined account. According to Katz, the exclusivity of private ownership is
first and foremost a feature of the owner’s authority “to set the agenda for a
resource,” which is the authority to determine what function(s) the object
will serve.
52
Nonowners incur a duty to fall in line with this determination.
For example, suppose an owner of a piece of land decides not to use it
at all except for doing what is necessary to keep it in reasonable shape
while waiting for an opportunity to sell it.
53
Under these circumstances,
nonowners do not incur a duty to keep off tout court. They will be enjoined
from any activity that might not fall in line with the agenda or function set
by the owner. In another case, when the agenda set for the land is farming,
social workers neednot be excludedfromentering the place for the purpose
of visiting migrant laborers temporarily housed there.
54
In cases where the
function set by the owner for her object is unknown or unclear, an absolute
51. Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1927). Neither Katz’s nor
my account, however, accepts Cohen’s elaboration of sovereignty in connection with private
ownership (nor his legal realism more broadly). Cohen begins his argument by severing
property rights from physical possession, asserting that “the essence of private property is
always the right to exclude others.” Id. at 12. According to my argument above, however, the
right to exclude is a feature of possession, not ownership (or property rights). Nevertheless,
his main point does not turn on this shortcoming, as I now explain. Indeed, the centerpiece of
his argument, understood in the context of the heydays of laissez-faire, is that certain property
right-holders exercise a de facto power of taxation over others in need of the former’s resources
even at the cost of “hard labor and disagreeable service.” Id. More specifically, people in need
of resources “necessary for their subsistence” cannot but literally give themselves—their labor
or money—over to right-holders to make a living or get necessary goods respectively. Id. To this
extent, property rights are state authorizations conferred upon private entities to collect taxes
(and therefore exercise political sovereignty) from economically dependent individuals and
thus adversely to affect the redistribution of wealth among members of society. See id. at 13.
Without going into the merits of Cohen’s thesis, it is clear that his argument from sovereignty
does not amount to a conceptual account of the idea of private ownership (or, for that matter,
property rights). Indeed, his account aims at property rights over the means of production, and
even then, not necessarily any means. See id. at 14 (raising the concern that “the wealthy few
determine the mode of life of the many”). It is certainly not in the nature of private ownership,
at least not on my account of ownership, that owners could exercise a de facto authority to
tax economically dependant people. (For more, see Section IV below, especially my discussion
of the just-price doctrine.) Moreover, Cohen self-consciously limits the character and scope
of his thesis concerning property as sovereignty, e.g., to “modern owner of capital,” “modern
large property owners,” “railroad,” “public service corporation,” “captain of industry and of
finance,” and “gas company.” Id. at 13–14.
52. Katz, supra note 30, at 290.
53. I borrow this example fromKatz (id. at 291) who develops it in another (though related)
context.
54. Here again, I borrow the example from Katz (id. at 301) who draws on New Jersey v.
Shack, 277 A.2d 369 (N.J. 1971).
Private Ownership 21
duty of noninterference might come into play to ensure that nonowners will
not pursue nonconforming plans vis-` a-vis the actual (unknown) function.
55
This incisive account certainly improves on the exclusive-use account
to the extent that it does not overlook the special status of the owner
(though it may not be as successful on other counts).
56
But it takes the
wrong turning when it identifies the owned thing rather than the nonowner
as the logical object of the owner’s authority. Whereas on my account the
owner possesses the authority to fix the normative standing of others in
relation to a particular thing, the agenda-setter possesses the authority to
fix the kind of usage appropriate (on her view) for the thing. The authority
relations of the former kind emphasize that the idea of private property is
first and foremost about normative relationships between persons, and only
secondarily about the res or thing.
57
The latter authority has it the other way
around, establishing authority relations between owners and their objects
with nonowners taking the backseat. Indeed, the authority characteristic of
the agenda-setter singles out the person who has the final say with respect
to the kinds of function or agenda to be fulfilled by the thing in question
as an owner. Thus, if both an owner and a nonowner set their respective
agendas for the same object, the decision made by the former outclasses
the latter’s because of her authority over the object and, most important,
only insofar as these agendas are inconsistent with one another.
Accordingly, whether or not the nonowner experiences a change in his
normative standing inrelationtoanobject as a result of the owner exercising
her agenda-setting authority is a matter of happenstance—the extent to
which the course of action he pursues might come into conflict with the
kindof service the owner has designatedfor that object. It is always necessary,
in order to know the normative standing of a person to an object, to begin
by ascertaining the agenda set by the owner for this object. Only then—only
after the owner settles on her preferred agenda—can the law proceed to
sort out the class of nonowners whose normative standing in relation to
an object is thereby implicated. By implications, the owner cannot fix the
normative standing of others in relation to an object unless it is necessary for
sustaining the agenda she has set for this object. For example, suppose an
owner actively prefers her piece of land to remain open and uncultivated.
Against the background of this agenda, the owner cannot deny others from
55. Katz, supra note 30, at 300.
56. In particular, it is an open question, and one that plagues Katz’s theory, whether the
right to set the agenda for an object can explain cases in which the court recognizes a right
to exclusive use even when the nonowner’s activity can hardly be said to be inconsistent with
the agenda set by the owner. The paradigm case here is Jacque v. Steenberg Homes, Inc., 563
N.W.2d 154 (Wis. 1997). Katz could claim, as she indeed does (supra note 30, at 303–305), that
the precise agenda set by an owner can be interpreted broadly to include overarching agendas
such as sustaining privacy. But the more one stretches the scope of the agenda, the more it
loses its initial appeal, submerging in the exclusive-use account.
57. I elaborate on the distinction between property-as-relations and property-as-thingness
below. See Section IV.B.
22 AVIHAY DORFMAN
crossing through it, for their course of action does not conflict with the
owner’s agenda for the object. On the agenda-setting account, the owner
does not possess the authority to determine the standing of the crossing
others unless she resets the agenda for the object so that it comes to stand
in conflict with the nonowners’ activity of crossing.
The indirect and coincidental connection between the agenda-setting au-
thority of the owner and nonowners suffers fromthe three above-mentioned
shortcomings that plague the exclusive-use account. Casting ownership in
terms other than possession, accounting for the private-law form that it
takes, and distinguishing it from personal property all call on us to focus
our attention on normative relations and away from objects.
58
However,
both accounts hold in common a rather loose connection between owners
and nonowners while elevating the object—the thingness—to prominence.
According to the exclusive-use account, private ownership is at its core a
relationship of abstention between nonowners and an object not theirs.
And according to the agenda-setting account, the idea of private owner-
ship amounts to the authority relation that exists between an owner and an
object—her object.
Against this backdrop, it is possible to extend, mutatis mutandis, the
three challenges I mount above against the exclusive-use account to the
agenda-setting account. I shall not repeat these but only make three brief
observations specifically relevant to the agenda-setting account. First, this
account does not deny the relativity of agenda setting, the exercise of which
is not a distinctive characteristic of ownership.
59
The special position of the
owner lies in the fact that she is the supreme agenda-setter, while possessors
with inferior rights (including mere actual possessors) exercise a similar
authority, though to a lesser degree. Indeed, their agendas may not override
those set by the owner, but (at least in the eyes of tort law) possessors may
seek the exclusion of all (save for the owner) who pursue nonconforming
plans to the agendas they have set. Thus the position of agenda setting is
a feature of possession and the law’s protection of the interest in actual
possession and not strictly speaking of ownership.
Second, setting an agenda for one’s object, unlike my proposed account,
does not implicate the normative standing of others to the object, at least
not directly, as I argue above. To repeat, the authority vested in the owner
concerns the object itself—the power to determine what functions it will
serve. It implicates nonowners only coincidentally through the (criminal
or private-law) duties of noninterference that might come into play, when
58. That said, I do not deny, nor could I, that the object as such is not a constitutive element
of the practice of private ownership nor of any other form of ownership more generally. I do
deny, however, that its role in a successful account of private ownership must play out in the
normative relations that property rights establish. On my account, an object is the context in
which the authority relations between owners and nonowners operate.
59. “An owner is not necessarily the only decision maker with respect to a resource.” Katz,
supra note 30, at 294.
Private Ownership 23
appropriate, to protect the function determined by the owner. To this ex-
tent, the agenda-setting account holds in common with the exclusive-use
account the notion that the owner exercises her authority (or, as Katz would
say, sovereignty) over a physical domain, which in turn may consequentially
result in the need to impose obligations on the part of certain nonowners.
60
Third, the agenda-setting account, like the exclusive-use account, focuses
on the uses made or that will be made by the owner and the necessary
exclusion of others that they might demand. The power to exchange the
object for consideration—the authority of the owner to turn a nonowner
into an owner—is not an aspect of the exclusion of nonowners who do
not fall in line with the agenda set for the object by the owner. Like the
exclusive-use account, the account of ownership as something that sets the
agenda for a resource is compatible with a system of private property but
nonetheless confines its account of ownership to capture a (Soviet-like)
regime of personal property.
B. Hohfeld’s Legacy: Separating Formalism from Realism
about Private Ownership
Certainly, my account follows the Hohfeldian analytical insight that le-
gal norms—including powers, rights, and duties—govern relationships be-
tween persons inter se, not between nonowners and objects of others.
61
I
remain agnostic, though, concerning the legal-realist notion that private
property is a hodgepodge bundle of sticks, as often associated with Ho-
hfeld.
62
Some exponents of the exclusive-use account of ownership, by
contrast, appear to take the two Hohfeldian theses—property-as-relations
and property-as-bundle-of-sticks—to stand or fall together. This appearance
comes from their insistence on rejecting both theses and, more important,
from associating them with legal realism and conceptual skepticism.
63
60. In contrast, on my preferred account, the authority characteristic of ownership is di-
rected at and exercised over the normative standing of nonowners. Accordingly, the right to
determine functions of a resource is merely the upshot of authority—a consequence thereof—
rather than its immediate object. The agenda-setting account has it the other way around in
this particular respect.
61. At this stage of my argument, I use relations in the limited sense of juridical and in
particular authority relations. In future work I shall seek to show that these relations can also
engender morally important social relations of respect and recognition between owners and
nonowners. This showing, it is worth noting, does not seek to derive property rights from
preexisting social relations, which is a thesis defended in, e.g., Joseph W. Singer, The Reliance
Interest in Property, 40 STAN. L. REV. 614 (1989). Rather, the claim is that ownership creates a thin
though intrinsically valuable society between persons simply by virtue of their being persons,
regardless of preexisting social relations.
62. Whether or not this association does justice to Hohfeld or to legal realism is a separate
question that I set aside. Likewise, it is not clear to me why viewing private property as a bundle
of sticks must carry overtones of a free-floating conception of property.
63. See, e.g., J.E. Penner, The “Bundle of Rights” Picture of Property, 43 UCLA L. REV. 711
(1996).
24 AVIHAY DORFMAN
For example, at the very outset of her account, Katz attributes skepticism
about the coherence of the idea of ownershiptothe bundle-of-sticks thesis.
64
She then goes on (I repeat) to develop a theory of ownership that defeats
skepticismby emphasizing the special connection of the owner to an object.
That is, the owner as the supreme agenda-setter exercises the power to
determine the functions to be served by an object. By this method, Katz
purports to do away not only with the bundle-of-sticks thesis but also with
the property-as-relations thesis. As explained above,
65
the relation singled
out by Katz’s idea of ownership is that which lies between the owner and an
object: of being in the superior position to fix the agenda for an object.
Against this backdrop, is my selective endorsement of Hohfeld tenable?
In particular, how can siding with the property-as-relations thesis not render
my account of private ownership susceptible to the bundle-of-sticks thesis?
66
In answering these questions, I am assuming, for the sake of argument, that
the bundle-of-stick thesis must invite one to view ownership as an amalgam
of sticks or incidents devoid of necessary content.
67
To begin with, the marriage between the two Hohfeldian theses—
property-as-relations and property-as-bundle-of-sticks—has no conceptual
foundations. Of course, it may not be inconsistent to hold (or reject) them
together. However, there is nothing in a commitment to the former thesis
that entails or even implies the latter. On my proposed account, the special
authority relation at the conceptual core of the idea of ownership picks
out the form of ownership, which sets out ownership’s necessary content.
Qua form, it remains indifferent to the functions or purposes for which the
right of ownership may be enlisted—that is, it resists the pressure toward
becoming a placeholder for fungible sticks.
68
Moreover, the conceptual separation between the two theses hints at a
deeper divide between them: the property-as-relations thesis, unlike the
bundle-of-sticks thesis, is not an insight originating exclusively from legal
realism nor from skepticism about legal concepts. In fact, although the
first thesis (which is the one I endorse) is widely attributed to Hohfeld, it
was presented more than a century before Hohfeld published his seminal
essay.
69
It was Kant who observed that “it is clear that someone who was
64. Katz, supra note 30, at 275, 275 n.1, 283.
65. See text accompanying notes 56–61.
66. There is at least one other important thesis associated with Hohfeld’s account of rights:
that in rem and in personam rights are indistinct at their core. I leave the effort of articulating
an account of the distinctive nature of property rights for another occasion.
67. See Anthony M. Honor´ e, Property and Ownership: Marginal Comments, in PROPERTIES OF
LAW: ESSAYS IN HONOUR OF JIM HARRIS 129, 131 (Timothy Endicott et al. eds., 2006) (denying
the association of the Hohfeld-Honor´ e approach to property and ownership with conceptual
skepticism about these concepts).
68. A more complete elaboration on the form of private ownership and its importance for
property discourse appears below. See Section V.
69. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning,
26 YALE L.J. 710 (1917). See SINGER, supra note 1, at 133 (noting that “Hohfeld was the first to
popularize the idea that liberties entail relations.”).
Private Ownership 25
all alone on the earth could really neither have nor acquire any external
thing as his own.”
70
Accordingly, Kant sought to develop a formal account
of private ownership fully contained within his theory of rights as relational
authorizations to employ coercion against duty-holders.
71
It is less impor-
tant for the present purpose whether Kant’s account ultimately succeeds in
deriving absolute ownership from the principle of freedom;
72
the crucial
point is that ownership can be approached from a nonrealist perspective such
as Kant’s without thereby relinquishing the property-as-relations thesis.
V. THE IDEA OF PRIVATE OWNERSHIP AND THE
FACT OF DISAGREEMENT
The argument so far seeks to show that the proposed theory of private
ownership makes good on three threshold requirements for adequate ex-
planation of its subject matter: that of explaining the idea of ownership
independently of possession, as a form of private legal ordering, and in a
way that makes sense of the distinction between personal and private prop-
erty. The argument henceforth develops what may be thought of as its most
important contribution to the theoretical elaboration of the idea of private
ownership under the conditions of modernity.
73
Specifically, I shall argue
that an adequate theory of private ownership must create ample conceptual
space, as it were, for normative disagreements about both the substantive
rights that should make up the core of ownership and their appropriate
scope (call them disagreements about the breadth and scope of ownership,
respectively). Disagreements of these two types are pervasive in philosoph-
ical, legal, and popular discourse and have deep significance for anyone
who is affected by the institution of private property, which is just about
everyone. Together they constitute the fact of disagreement—an inevitable and
fundamental feature of open societies wrestling with the legitimacy of the
institution of private property.
70. IMMANUEL KANT, THE METAPHYSICS OF MORALS 6:261, at 49 (Mary Gregor trans. & ed.,
1996) (1797).
71. See RIPSTEIN, supra note 2, at 86–106, esp. 93 n.11.
72. Although Kant’s account of property proceeds on the basis of relational rights of own-
ership, there are some striking differences between my proposed account and his—at least as
developed in Ripstein’s illuminating book; see id. Three are worth mentioning at this stage.
First, Kant begins with a general and abstract idea of law and property—an a priori idea of
reason and reason alone—and then works out the implications of this idea for actual legal
practice. By contrast, I seek to reconstruct the idea of private ownership from the actual le-
gal practice. Second, the Kantian account of private ownership may be best understood as a
variation on the exclusive-use theme, the theme I have been criticizing above. Third, Kantian
ownership is in principle absolute. There is nothing except for the equal freedom of others
that can render legitimate society’s attempt to narrow it (say, by pursuing a luck-egalitarian
program). As Section V of my account makes clear, however, private ownership need not call
for absolute rights.
73. I emphasize theoretical elaboration and leave to another occasion the doctrinal aspects
of my account (viz., the elaboration of particular doctrinal areas in property law in the light of
the concept of private ownership I develop).
26 AVIHAY DORFMAN
Disputes concerning the breadth of ownership revolve around owners’
substantive rights; some elevate the right of owners to exclusive use, others
the right to sell, waste, donate, or bequeath an object, and yet others the
responsibilities of owners topromote social justice inthe light of the inequal-
ities generated in part by their ownership.
74
Disagreements concerning the
scope of ownership focus on whether any one right of ownership should
be extended or restricted—say, the extent to which owners can exclude
others, the financial terms of mortgaging one’s land to a lender, the kind of
restraints on the right to destroy an object (say, a C´ ezanne), or the eligibility
of owners, by virtue of their ownership, to claim the entire proceeds from
the sale of land.
These disagreements may arise when one believes, with Holmes, that
“[t]he absolute protection of property, however natural to a primitive com-
munity more occupied with production than in exchange, is hardly con-
sistent with the requirements of modern business.”
75
Or society may take
private ownership to be commending more respect for owners’ right to
exchange their objects, as when it repels the just-price doctrine and grants
owners the discretion to determine the terms of the exchange (including,
most importantly, the exchange value of objects). More recently, normative
disagreements may also erupt when society decides for compelling reasons
to denounce restaurant owners’ rights to exclude black nonowners as an
allegedly natural expression of their private ownership. And finally they
pervade the current efforts to determine the contours of private owner-
ship in matters of intellectual property, featuring arguments for and against
the adoption of the model of ownership rights characteristic of tangible
property.
76
Inall these cases, the disagreements are normative frombeginning toend.
They may not be eliminated simply by conceptual arguments that lead one
side to appreciate its errors and accept the claims of its rival. Indeed, they do
not present themselves—or would be better not to present themselves—as
analytical arguments about the idea of private ownership. (Consider the
oddity of an analytical effort in this vein, applied to the right of restaurant
owners to exclude patrons on the basis of their race or an argument saying
that the fair-use doctrine is incompatible with the logic of private ownership
of copyrighted work.)
But are we entitled to consider these widespread disagreements in terms
of arguments concerning private ownership in the first place? Perhaps they
share nothing special in common and thus present isolated problems about
the appropriate regulation of distinct relationships between persons in rela-
tionto objects. This wouldbe the case if reference to private ownership—the
74. The locus classicus of these and other substantive rights or incidents of ownership is
Anthony M. Honor´ e, Ownership, in OXFORD ESSAYS IN JURISPRUDENCE 107 (A.G. Guest ed., 1961).
75. HOLMES, supra note 17, at 100.
76. For more, see Avihay Dorfman & Assaf Jacob, Copyright as Tort, THEORETICAL INQUIRIES IN
LAW (forthcoming 2010).
Private Ownership 27
idea—turns out to be doing no work in disciplining the arguments or oth-
erwise laying the backdrop against which to analyze them thoroughly. Thus
the fact of disagreement concerning the breadth and scope of ownership
prompts the question of whether the idea of private ownership has neces-
sary content at all, for otherwise it would be best to do away with it. And
even if it has, can this content make sense of these disagreements, for exam-
ple, by drawing the line between arguments about private ownership (say,
how best to realize it) and claims against it (say, an argument in favor of an
alternative system of ownership)?
There is an obvious trade-off here between the necessary content of pri-
vate ownership and the fact of disagreement. Thus, for example, the argu-
ment made by Holmes and mentioned above in favor of a more relaxed
protection of ownership can be seen as a claim about the contours of pri-
vate ownership—the appropriate scope of private ownership. Or it can be
understood to be an argument against private ownership and in favor of a
different system of ownership governed by a different idea of property (call
it shrivate shownership). The more substantive the content of private own-
ership gets, the less conceptual space is left within the discourse of private
ownership for disagreements. The more open-ended it becomes, the more
space is available for these disagreements.
The danger, however, is that substantive content necessarily renders the
idea of private ownership too parochial to account for the fact of disagree-
ment concerning ownership’s breadth and scope. And vice versa, an open-
ended content, because it generates no necessary content, might fail to
exhibit any idea of private ownership to begin with.
77
In both cases, the
idea of private ownership may be useless. Substantive content might in-
crease the demand for more concepts (such as shrivate shownership) to
compete against the narrow idea of private ownership to the point of creat-
ing a hyperinflation of ideas. Open-ended content might go the other way,
eliminating the need for a unifying idea altogether.
An adequate idea of private ownership, I argue below, must not only
convey some necessary content but must also (and more fundamentally)
provide a formal category against whichsubstantive disagreements couldflour-
ish. Moreover, and once again, this formal category must be thin enough to
avoid crowding out normative disagreements but not so thin that it becomes
useless. As I seek to show, the formal category offered by the exclusive-use ac-
count fails to appreciate the former hazard, whereas conceptual skepticism
about the idea of private ownership invites the latter hazard. The proposed
account, by contrast, provides a formal characterizationof the idea of private
ownership which is appropriately thin (though not too thin) to accommo-
date disagreements about the breadth and scope of private ownership. The
77. For elaborations on this proposition, see HARRIS, supra note 3, at 119–161; Henry E.
Smith, Mind the Gap: The Indirect Relations between Means and Ends in American Property Law, 94
CORNELL L. REV. 959 (2009).
28 AVIHAY DORFMAN
reason for this, I shall argue, is that the idea of private ownership—namely,
an authority to fix in some measure the normative standing of others in
relation to an object—does not predetermine the breadth and scope of
ownership.
78
To set the stage, I consider the response of the exclusive-use account to
the charge of the bundle-of-rights account concerning the useless character
of the idea of private ownership, showing that this response remains in the
end just as unsatisfying. To begin with, the fact of disagreement has been
utilized by the bundle-of-rights account as evidence for the lack of an idea of
private ownershipor for its uselessness. The most celebrated(andextremist)
attack of this sort is Thomas Grey’s thesis concerning the disintegration of
property. Grey’s claim, in essence, is that the idea of private ownership—and
perhaps property more generally—is used to express many different ideas
and that these cannot hang together. He lists six different usages of the term:
property as real estate, a right inrem, anentitlement that advances allocative
efficiency, a public-law entitlement (also known as the new property), a
thinglike definition of property for the purpose of the taking clause of
the U.S. Constitution, and an injunctive remedy (contrasted with liability
rule).
79
However, that a term such as property or ownership is employed
by English-speakers inconnectionwiththese or other notions says absolutely
nothing concerning the coherence or incoherence of the idea of property
or, for the present purpose, private ownership. And Grey’s assertion that
these are “discontinuous usages”
80
is of no help, whichrenders unacceptably
conclusory his entire thesis that we should understand institutions of private
property without recourse to an idea of private ownership.
It is possible to restate the disintegration thesis more moderately to pro-
vide for a less radical and plausibly a more potent challenge to the thought
that private ownership has a unifying idea despite the fact of disagreement
mentioned above. Hanoch Dagan, rejecting the conceptual nihilism of the
preceding account, argues that property and private ownership give rise
to several institutions or sets of rules that share a Wittgensteinian family
resemblance.
81
Thus the legal arrangements that figure in different social
contexts (say, the economic market or the family) and are applied to dif-
ferent categories of resources (such as land or chose of action) defy their
reduction into a unified form.
82
The family-resemblance argument can cer-
tainly account for the theoretical and doctrinal variations in property law
throughout the different areas it purports to regulate without endorsing
78. A more precise explanation appears in text accompanying notes 85–92.
79. Thomas C. Grey, The Disintegration of Property, 22 NOMOS 69, 71–73 (J. Roland Pennock &
John W. Chapman eds., 1980). And see MUNZER, supra note 11, at 31–36 (providing a sustained
attack on Grey’s thesis).
80. Grey, supra note 79, at 72.
81. See Hanoch Dagan, Exclusion and Inclusion in Property (unpublished manuscript on
file with author); Hanoch Dagan, The Craft of Property, 91 CAL. L. REV. 1517, 1558–1565 (2003).
82. According toDagan, “ownershipfor one purpose does not imply ownershipfor another.”
Dagan, Craft, supra note 81, at 1563.
Private Ownership 29
the disintegration thesis. However, it may not so easily entitle one to reject
the possibility that the idea of private ownership does the work of pick-
ing out, as it were, the several family members of private property such as
those identified above. Quite the contrary, in fact, for the resort to the idea
of family resemblance (or to a set of property institutions) presupposes a
common origin—an overarching conceptual structure that allows one to
think in terms of family resemblance to begin with, that is, an idea by virtue
of which it is possible to come to a conclusion about resemblance, and a
familial one at that.
The Daganresort to family resemblance need not deny the existence of an
overarching idea of private ownership.
83
It can concede the point but scale
down its significance by urging that a unified idea of private ownership is so
abstract and open-ended as to render its ambition to shape the normative
discourse about private ownership redundant; in which case Dagan has
made a full circle back to Grey—to agree that the idea of private ownership
is useless.
By contrast, the exclusive-use account is widely considered to have shown
that the idea of private ownership can nonetheless be useful. It provides a
stable, univocal background—a formal definition—against which the reg-
ulation of relationships between persons in connection with objects can
be developed and evaluated in a coherent fashion. And this is because it
carries necessary content that is also truly concrete: private ownership picks
out the right to use an object to the exclusion of others. In earlier stages of
my argument I argue that this is not after all an idea of private ownership.
Now I am arguing that this idea may in addition be of no help in sorting
out disagreements about the breadth and scope of ownership. That is, the
right to exclusive use falls short of accommodating normative and political
disagreements about the breadth and scope of ownership. This shortcom-
ing, I shall argue, is inherent to casting private ownership in the terms of
exclusive use.
Whereas the open-ended idea presupposed by the bundle-of-rights ac-
count cannot guide, let alone help settle, the disagreements mentioned
above, the trouble with the idea of private ownership as the right to exclu-
sive use is that it settles them too early, as it were. Indeed, the exclusive-use
account takes sides in the substantive disagreements about both breadth
and scope. It argues that the right to use an object to the exclusion of oth-
ers is the defining formal feature of private ownership; and it argues for
a more or less maximalist scope for this right. It therefore presents a nar-
row and rigid understanding of private ownership that pays no heed to the
disagreements characteristic of popular and theoretical discourses about
what many participants would regard as the contours of private ownership.
83. It is not implausible to interpret Dagan as advocating this thought in saying that his
preferred approach “understands the forms of property . . . as important default frameworks
of interpersonal interactions.” Id. at 1558. The important question is, of course, how rebuttable
the default is.
30 AVIHAY DORFMAN
By implication, any argument that deviates from this (substantive) position
amounts to a claim for an alternative idea to that of private ownership.
84
In this world, the idea of private ownership could therefore do no work,
since in principle, disagreements concerning the breadth and scope of own-
ership rights become disagreements between competing ideas of property
arrangement rather than between competing conceptions of the concept
or idea of private ownership. Or so I am arguing.
Perhaps, however, the right to exclusive use is less parochial and rigid
than I suggest here. As mentioned above, the right to exclusive use does not
empower the owner to exclude the rest of society; it is not, strictly speaking,
a right good against the world, as there is any number of situations in which
nonowners need not exclude themselves from an object. It is better viewed
as a limited right to exclude others. But the qualifier limited bends the idea
of exclusion in an unnatural direction.
85
Indeed, there is a point on the
limited-exclusion scale where talk of the right of exclusive use becomes
incoherent and, indeed, mistaken. Limitation, in other words, must be
allowed on the margins only.
Many disagreements about the breadth and scope of private ownership
concern, directly or indirectly, the appropriate balance between the limited
and the exclusion. Recall the disagreements regarding the adoption of a
model of tangible property rights in the case of copyright (disagreements
about the breadth and scope of copyrights). Certainly a broad interpreta-
tion of the fair-use doctrine is incompatible with a right to exclusive use,
including a limited right to exclude others. Would this necessitate the con-
ceptual argument according to which copyright does not fall within the idea
of private ownership? It is not clear why this must be so. Of course, there
may arguably be good reasons that we should not conceive of copyright as
a case of private ownership. However, these do not amount to denying that
copyright can be cast in terms of private ownership.
The same can be further extended in considering disagreements about
the scope of ownership of tangible property, as in the case of Britain’s Coun-
tryside and Rights of Way Act 2000. According to this act, private owners
cannot exclude nonowners rambling around certain uncultivated parts of
their lands. Here again, the key question on the exclusive-use account would
84. Another way to put this point is to say that the exclusive-use account, because it insists
on the essentiality of the right to exclusive use, purports to be the only conception of the
concept of private ownership. A conception, on the Rawlsian terminology, is a theory of the
concept. See RAWLS, supra note 15, at 5–6. The concept/conception distinction is introduced to
property discourse in WALDRON, supra note 2, at 47–53, and more recently deployed in LAURA
S. UNDERKUFFLER, THE IDEA OF PROPERTY: ITS MEANING AND POWER 19 (2003). But both of these
cases are mistaken insofar as they take conception to stand for a concrete application of the
concept. Once again, according to Rawls, a conception of the concept is not an application
but rather a theory of the concept.
85. Smith concedes that the right to exclusive use “is best regarded not as absolute but as
carrying heavy presumptive force.” And he further observes that characterizing heaviness in
this regard is “a worthy topic for debate.” Smith, supra note 77, at 968.
Private Ownership 31
be how substantial the limitation is on the right to exclude nonowners. Per-
haps in this case the limitation might seem fairly trivial (though I doubt
that). At any rate, these and numerous other examples (some of which are
mentioned above) force the exclusive-use idea of private ownership to grap-
ple with the metaphysical question of how limited the concept of limited
exclusion proves to be in any given case.
But this approach to sorting out disagreements about the breadth and
scope of private ownership seems counterintuitive. With a focus on the
appropriateness of the limitation on exclusive use, disagreements about
the breadth and scope of ownership become nothing but disagreements
about the very idea of private ownership. Any argument in favor of impos-
ing limitations on the right to exclude is in the first instance an argument
against the very idea of private ownership, unless these limitations are suf-
ficiently insignificant as to bear merely on the margins of exercising the
right. The thought that according to the exclusive-use account of private
ownership, disagreements about the breadth and scope of ownership are
disagreements about the idea of private ownership is not surprising but
it is remarkable. It is not surprising, because the term exclusive use turns,
by definition, on breadth and scope—bluntly put, its quality is purely a
property of its quantity. The remarkable thing about this thought is that
many of the disagreements about the breadth and scope of ownership do
not cast themselves in terms of arguments for or against the very idea of
private ownership. They do not seek to advance alternative ideas to private
ownership. Rather they represent substantive disagreements about the ap-
propriate shape that private ownership should take. Some, depending on
their moral and political beliefs, may envision a less limited form of private
ownership, and others would have it the other way around. But they are all
of a piece insofar as they seek to present what they separately view as the
best case for private ownership—the most compelling interpretation or the
best realization of this idea. The idea of private ownership picked out by
the exclusive-use account cannot account for this state of affairs and more
precisely fails to appreciate the distinction between the very idea of private
ownership and its substance—its breadth and scope.
In contrast, the idea of private ownership developed above—namely, the
authority to fix in some measure the normative standing of others in rela-
tion to an object—entertains sufficient space for normative disagreements
concerning the substantive rights of ownership. Like the exclusive-use ac-
count, it rejects skepticism about private ownership by articulating a formal
definitionof this idea. Unlike the exclusive-use account, however, it provides
a formal framework within which substantive disagreements are settled by
recourse to normative rather than conceptual arguments. In particular, the
space it creates provides the scope and breadth needed to show that dis-
agreements about the core rights of ownership, including disagreements
between the exclusive-use and the bundle-of-rights accounts, are not dis-
agreements about the very idea of private ownership. More precisely, its
32 AVIHAY DORFMAN
necessary content—the authority to fix normative standing—does not spec-
ify the breadth and scope of ownership rights and so does not preempt
normative and political disagreements in these matters. Moreover, its for-
mal character does not render the idea useless. Let me explain.
I begin with the scope of ownership rights. Some of the disagreements in
question, perhaps most of them, are focused not on the number of rights
that form the core substance of ownership but rather on the appropriate
scope of each particular right. The very idea of ownership, the very idea
of assuming authority to fix the normative standing of others in relation
to an object, does not entail absolute rights to exclude, destroy, sell, and
so on. There is nothing in the proposed account of ownership that turns
on the scope, maximal or otherwise, of the authority of owners to fix the
normative standing of others. It is sufficient for the authority vested in
owners that they could exercise some power over the standings of others
to an object. Accordingly, it takes a normative rather than conceptual ar-
gument to specify the precise scope of each and every substantive right of
ownership.
To be sure, some measure of authority on the part of owners is not only
sufficient but also necessary; otherwise private ownership is impossible even
on its own formal terms. Thus, on the one hand, holding title subject to
the right of nonowners to compel owners to sell any of their objects for a
reasonable price cannot be cast in terms of private ownership because a
widespread practice of private taking renders meaningless the authority of
owners to fix the normative standing of others in relation to an object.
86
Precisely the same rationale explains why private ownership rules out perpe-
tuities (because contingent threats of future forfeiture negate the authority
of the present and future owners of an object subject to perpetuities) and
the medieval French doctrine of retrait lignager, according to which an owner
cannot alienate her landed property without securing the expected heir’s
approval.
87
On the other hand, a just-price doctrine places constraints on
owners’ authority because it fixes the economic terms of the exchange by
reference to objective criteria, but it does not abrogate the authority alto-
gether. Certainly owners can nonetheless determine the normative standing
of other parties to the transaction even when the details of the bargain itself
are not fully at their respective wills.
More broadly, the idea of private ownership reflects a necessary form of
relations between owners and others, namely, authority relations between
86. One of the benefits of the proposed theory of private ownership is that it accounts for
the qualitative difference between eminent domain and private taking. Because the state vests
owners with the authority to fix others’ normative standing to an object, the state need not
be subject to this authority in the same way that fellow citizens are. The state has compelling
reasons to defer to the authority in question at most times, to be sure, and the general
constitutional considerations of fairness that governits interactions withcitizens are not without
force here.
87. For the doctrine of retrait lignager, see 2 FREDERICK POLLOCK & FREDERICK W. MAITLAND,
THE HISTORY OF ENGLISH LAW 313 (2d ed. 1923).
Private Ownership 33
owners and the normative standing of others. Inasmuch as the right in
question takes this form, as the idea of private ownership requires, mere
variations on its scope remain fully committed to this idea. The stage, then,
is appropriately left for normative arguments about the point of private
ownership and how best to realize it.
Apart from variations on the scope of the substantive rights of private
ownership taken severally, the proposed idea of private ownership keeps
to an important extent a critical distance from the breadth of the rights
that taken together might form its core. Indeed, prior to the question of
scope, disagreements often focus on whether owners should be allowed
to exercise all the rights traditionally associated with private ownership.
That is, whether their authority to fix the normative standing of others in
relation to an object must or should be carried forward into all sorts of
relationships engendered by these rights. The straightforward answer is no,
for the same reasons given with respect to the scope of private ownership.
For example, the right to destroy one’s object has been receiving greater
critical attentioninthe light of the increasing concerns for the environment.
By implementing some form of prohibitions against waste, society does not
thereby abandon private ownership even though it diminishes its previous
breadth. Indeed, being a sufficiently thinformal category, private ownership
can generally range from parsimonious to generous versions, from few to
many rights and powers available to owners, depending on the balance of
reasons established through normative and political disagreements about
its breadth.
However, the fluidity that the idea of private ownership allows cannot go
unrestrained. In particular, there must exist some rights that give rise to the
authority relation characteristic of private ownership. This requirement is
a logical upshot of my account, as the proposed idea of private ownership
would amount to empty formalism were no rights of ownership to obtain.
More concretely, the right toalienate anobject, I argue, must be part of these
necessary rights, for otherwise the authority to fix the normative standing
of others in relation to an object—to turn a nonowner into a right-holder—
amounts to an empty set.
88
Unlike proponents of the exclusive-use account,
who insist on the strict separation of this right from private ownership,
89
and unlike those who marry this right with private ownership by reference
to a normative argument about the desirability of doing so,
90
my proposed
88. It does not follow that other rights traditionally associated with private ownership are
necessarily contingent. Thus, for example, the right to some measure of exclusive use might
be necessary insofar as it is a prerequisite for the exercise of the authority vested in private
owners to fix the normative standing of others in relation to an object. I leave this secondary
question for another occasion.
89. See PENNER, supra note 2, at 91–92, and recall my analysis in the main text concerning
the conceptual difference between private ownership and contract in my account.
90. See Jeremy Waldron, What Is Private Property?, 5 OXFORD J. LEGAL STUD. 313, 341–344
(1985).
34 AVIHAY DORFMAN
account renders the connection between the right (of alienation) and the
idea (of private ownership) a conceptual one.
91
That the power of alienation is the surface manifestation of the very idea
of private ownership is already implicit in my critique of the exclusive-use
account. The private-law form that private ownership takes, its qualitative
difference from possession (of whatever strength), and its opposition to the
idea of personal ownership are three implications of the authority relations
it engenders between owners and nonowners. The right to alienate, on this
account, is just the execution of these authority relations, as the alienator—
the owner—fixes the normative standing of the alienatee—the nonowner—
in regard to an object. Of course, as the preceding analysis makes clear, it
takes a normative argument to determine the precise scope of this right.
However, because an outright elimination of the right renders obsolete the
authority relations that make up the core of the idea of private ownership,
disagreements concerning the very necessity of this right are not merely
debates about the breadth of private ownership and the best ways to realize
its idea in practice; rather they take stock of the idea of private ownership
itself—they involve arguments for and against private ownership.
92
The formal category of private ownership outlined in these pages is not,
of course, bereft of normative content. No account in the realm of law
could stay aloof from controversy. However, its susceptibility to the fact
of disagreement, as demonstrated here, renders it thin enough to set the
conceptual backdrop against which substantive disagreements about the
contours of private ownership take place. The reason, as explained here,
has been that the breadth and scope of private ownership are not parts of
the proposed idea of ownership being an authority to fix in some measure
the normative standing of others in relation to an object.
VI. CONCLUSION: FROM MORPHOLOGY
TO NORMATIVITY
In these pages I have sought to reclaim the characterization of private own-
ership. I elaborate on the qualitative difference between the idea of private
ownership and possession, the private-law form that this idea takes, its in-
timate connection with economic markets, and its openness to substantive
disagreements about its best realization. In future work I shall deploy this
91. By using the term the right to alienate, I do not seek to overplay idiosyncratic powers
such as the right to make a bequest (which involves the question of whether the authority
of the owner exists posthumously) or gratuitously give a gift (which normally presents itself
within circles of intimacy or sectarian fraternity). Instead, in line with the entire argument of
these pages, the emphasis is on the right of free exchange, including the exchange of certain
rights—say, the right to use an object—for consideration.
92. And once the latter set of arguments wins the debate, and the right to alienate is
thereby abolished, the idea of private ownership transforms into a conceptually different
system of possessory rights that displays indifference to the private or public form that it takes
and naturally applies to command economies.
Private Ownership 35
theory in the service of explaining core features of private ownership such as
the numerus clausus principle and the nature of in rem rights of property. In
the remaining paragraph, I speculate on the implication of thus character-
izing the idea of private ownership for the separate question of justification.
It is beyond the purpose of my current argument to consider this question
in depth. However, it would be apt to conclude the argument by reflecting
on how the proposed account of private ownership could illuminate the
justification of private ownership.
Normally, private ownership is praised or blamed for its consequences to
individual liberty, optimal allocation of resources, and distributional equal-
ity among members of society. My emphasis on the normative—legal and
moral—relations it establishes between persons could bring into sharp fo-
cus entirely different considerations that earlier treatments of the idea of
private ownership have left unaddressed and so unexplained. Thus private
ownership, because it demands that nonowners submit to the authority of
owners, raises concerns for the legitimacy of authority that might be analo-
gous to the problem of political authority familiar from the field of political
philosophy: How is authority—here an owner’s authority—possible? One
way out of this difficulty could be to elaborate on the society that authority
relations might engender between an owner and a nonowner. Indeed, a
relation involving a nonowner respectfully recognizing to some extent the
point of view of an owner as a freestanding constraint on the nonowner’s
own practical affairs suggests that a practice of private ownership might in
itself be a value quite apart from its positive or negative consequences for
liberty, equality, and efficiency. A person embracing the point of view of
another as being in some measure authoritative comes to respect the latter
on her own terms, not merely on his parochial and egocentric terms. Private
ownership, on this speculation, might be associated with a liberal form of
social solidarity that private-law practices more generally aspire to generate
among members of a complex, modern society.
93
93. For efforts in this vein, see Daniel Markovits, Contract and Collaboration, 113 YALE L.J. 1417
(2004); Avihay Dorfman, What is the Point of the Tort Remedy?, AM. J. JURIS. (forthcoming 2010).

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