CORNE

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DIES RESEARC
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An
n Introd
duction
n to Prooperty T
Theoryy

Gregorry S. Aleexanderr and Ed

duardo M
M. Peñaalver

Cornelll Law Scchool

Myronn Taylor Hall
Itthaca, NY
N 148533-4901

Cornelll Law Schoo

ol research ppaper No. 122-15

This paaper can be dow wnloaded withhout charge from:

The Social Sciience Research h Network Elecctronic Paper C
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 Introduction

Disputes over rights of private ownership of property constitute some of the most
contentious political issues of our day. Can the government legitimately take prop-
erty from those with more solely in order to give it to those with less? Can it take
someone’s land in order to help a private developer build a large shopping center
that will bring badly needed jobs and tax revenue to a decaying downtown? To
what extent can a business owner control who can come onto her property? Should
neighbors have a say in how an owner uses property? Should an owner be allowed,
without anyone’s input, to tear down an important historic building in order to build
a more profitable modern office tower? Should she have the right to fill sensitive
wetlands in order to build a home?
Property disputes raise passions, at both personal and political levels, like few
other topics can. It is not surprising, then, that some of the most important think-
ers in history have focused sustained attention on the nature of and justifications
for ownership. In this book, we will provide an introduction to the answers these
theorists have proposed.

What Is Property?
Before we turn to the various theories of property on which this book will focus, it is
important to address a few preliminary definitional questions. Most fundamentally,
we need to define the boundaries of the category at the heart of those theories: prop-
erty. Defining property turns out to be a very challenging task. Indeed, as Jeremy
Waldron has observed, some commentators have argued that the concept of prop-
erty defies definition.1 As Thomas Grey put it in an influential 1980 essay:
How do property rights differ from rights generally – from human rights or per-
sonal rights or rights to life or liberty, say? Our specialists and theoreticians have
1
See Jeremy Waldron, The Right to Private Property (1988), 26.

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 2 Introduction

no answer; or rather, they have a multiplicity of widely different answers, related

only in that they bear some association or analogy, more or less remote, to the com-
mon notion of property as ownership of things . . . . It seems fair to conclude from a
glance at the range of current usages that the specialists who design and manipulate
the legal structures of the advanced capitalist economies could easily do without
using the term “property” at all.2

Grey’s repeated references to “specialists” suggests that at least part of the difficulty
in defining property results from the arguably different ways that lay people and
lawyers approach the question.3 Lay people tend to think of property as a relatively
uncomplicated relationship between a person (the owner) and a thing (the owned
property). Because of the specific context in which they interact with property law
questions, however, lawyers have a tendency to think of property differently.4 They
usually view it as the collection of the individual rights people have as against one
another with respect to owned things, a point of view that makes a great deal of sense
when considering conflicts between litigants over what the specific content of prop-
erty law is with regard to some narrow question.
The lawyer’s view of property, commonly referred to as the “bundle of sticks” con-
ception, captures a valuable insight about the substantial flexibility in the design of
property institutions. But it can also get in the way of efforts to step back and think
about property more broadly as a legal institution or concept. As numerous theo-
rists have observed, the layperson’s conception of property as “things” latches onto
an equally important truth about the institution.5 One of the distinctive features
of property rights is their in rem quality. Property rights, unlike (say) contractual
rights, are good against the entire world. They impose duties on everyone else to
respect those rights. As a result, the creation of property rights has an impact on
people who did not take part in the transaction concerning the property in ques-
tion. Because the boundaries of the “thing” play a vital role in defining the scope of
people’s in rem duties to owners, the layperson is right to think that the “thing” that
is the subject of the property forms a crucial component of a workable definition

2
Thomas C. Grey, “The Disintegration of Property,” in Nomos XXII: Property, ed. J. Roland Pennock
and John W. Chapman (1980), 69, 71–3.
3
See ibid; see also Waldron, Private Property, 26; Bruce A. Ackerman, Private Property and the
Constitution (1977); Stephen R. Munzer, A Theory of Property (1990), 16. For a different view about
the lay person’s and lawyer’s conceptions of ownership and property, see Gregory S. Alexander, “The
Concept of Property in Private and Constitutional Law: The Ideology of the Scientific Turn in Legal
Analysis,” COLUM. L. REV. 82 (1982): 1545 (doubting that the lay person’s and lawyer’s conceptions are
very different from each other).
4
But see Alexander, “The Concept of Property in Private and Constitutional Law.”
5
See Munzer, Theory of Property, 72; Thomas W. Merrill and Henry E. Smith, “What Happened
to Property in Law and Economics?” YALE L.J. 111 (2001): 357, 360–83; Michael A. Heller, “The
Boundaries of Private Property,” YALE L.J. 108 (1999): 1163, 1193.

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 Introduction 3

of property.6 Taking the lawyer’s conception too far risks turning property into a
disaggregated collection of narrowly defined rights, causing us to lose sight of the
connection of those rights to things. Michael Heller is therefore correct when he
says that:

[W]hile the modern bundle-of-legal-relations metaphor reflects well the possibility

of complex relational fragmentation, it gives a weak sense of the “thingness” of pri-
vate property. Conflating the economic language of entitlements with the language
of property rights causes theorists to collapse inadvertently the boundaries of private
property. As long as theorists and the Court rely on the bundle-of-legal-relations
metaphor, they need some analytical tool to distinguish things from fragments,
bundles from rights, and private from nonprivate property.7

If we focus too narrowly on any given right with respect to a thing, and conceive of
that right independently from other rights in the thing, our conception of property
as a distinctive institution begins to fall apart, replaced by disaggregated strands of
rights and duties among particular people. As James Penner has observed, “on the
‘bundle of rights’ picture, ‘property’ is not really a useful concept of any kind. It
doesn’t help judges understand what they’re doing when they decide cases, because
it doesn’t effectively characterize any particular sort of legal relation.”8
To combat the centrifugal tendency of the bundle of sticks metaphor, some con-
temporary property scholars have attempted to discern a single essential feature
of ownership that distinguishes it from other legal concepts. They have, in effect,
seized on specific sticks in the bundle, singling them out as uniquely important.
The most commonly nominated candidate to serve this property defining role is the
right to exclude.9 Thomas Merrill puts the point very starkly:

[T]he right to exclude others is more than just “one of the most essential” constitu-
ents of property – it is the sine qua non. Give someone the right to exclude others
from a valued resource, i.e., a resource that is scarce relative to the human demand
for it, and you give them property. Deny someone the exclusion right and they do
not have property.10

6
See Munzer, Theory of Property, 72; Waldron, Private Property, 33–4; Abraham Bell and Gideon
Parchomovsky, “A Theory of Property,” CORNELL L. REV. 90 (2005): 531, 576–7.
7
Heller, “Boundaries of Private Property,” 1193.
8
J. E. Penner, The Idea of Property in Law (1997), 1.
9
See ibid., 71; Merrill and Smith, “What Happened to Property?”; Thomas W. Merrill, “Property and
the Right to Exclude,” NEB. L. REV. 77 (1998): 730; Adam Mossoff, “What is Property? Putting the
Pieces Back Together,” ARIZ. L. REV. 45 (2003): 371. Arguably, Richard Epstein might fall into this cat-
egory as well, though he would treat the rights associated with ownership at common law – and not
just the right to exclude – as all in some sense essential to our legal concept of private property. See
Richard A. Epstein, Takings (1985), 35–6.
10
Merrill, “Right to Exclude,” 730.

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 4 Introduction

The problem with privileging one strand in the bundle in this way is that it is a
relatively easy task to come up with examples of private property systems in which
the right to exclude is almost entirely absent or, at best, subordinated to other rights.
In Sweden, for example, landowners do not enjoy any overriding right to exclude
others from their property. Nonowners enjoy the right to roam where they wish pro-
vided they do not interfere with the use the landowner has chosen to make of her
land. The Swedish right to roam, known as the Allemansrätt, is deeply embedded in
Swedish culture and is mirrored to varying degrees in other Scandinavian countries.
Thus, in Sweden, the owner’s privileged position is not created through recognition
of a right to exclude in the first instance, but rather by a privileged right to determine
the use of the land she owns, to make decisions around which others must navigate
when exercising their own rights of access. A similar norm of access has prevailed as
a matter of custom in Scotland for centuries, and was recently recognized formally
in the Land Reform (Scotland) Act 2003.11 And yet Scotland and Sweden’s systems
of ownership are nonetheless easily recognizable as private property.12
There are alternatives to treating property as, on the one hand, merely an end-
lessly complex bundle of discrete rights between people with respect to things and,
on the other, searching for one single, essential stick in the bundle of rights that is
definitive of the concept of property. Tony Honoré, for example, has identified a
limited menu of rights (or incidents, as he puts it) of ownership that are character-
istic of most, though not all, systems of property. These include the right to possess
(which includes the right to exclude), the right to use, the right to manage, the
right to the income a thing generates, the right to the capital (i.e., the thing itself),
the right to security, the right to transmissibility and the absent of term (potentially
infinite duration), the duty to prevent harm, the liability to execution (e.g., to satisfy
a debt), and the incident of residuarity (the idea that, when lesser interests come to
an end, the full interest in the property reverts to the owner).13 Collectively, Honoré
says, these incidents are essential features of the full concept of property. But “the
listed incidents,” Honoré says, “though they may together be sufficient, are not
individually necessary conditions for the person of inherence to be designated the
owner of a particular thing.”14 On this approach, systems of property are something
like one of Ludwig Wittgenstein’s “family resemblance concepts.”15 They all share a

11
See John A. Lovett, “Progressive Property in Action: The Land Reform (Scotland) Act 2003,” NEB. L.
REV. 89 (2011): 301. A similar, though less ambitious, legal recognition of the right to roam was codified
in England and Wales in the Countryside and Rights of Way Act of 2000.
12
See Larissa Katz, “Exclusion and Exclusivity in Property Law,” U. TORONTO L.J. 58 (2008): 275.
13
A. M. Honoré, “Ownership,” in Readings in the Philosophy of Law, ed. Jules L. Coleman (1999), 557,
563–74.
14
Ibid., 562–3.
15
See Ludwig Wittgenstein, Philosophical Investigations, trans. G. E. M. Anscombe (1953), § 198, at
80. (“[W]hat has the expression of a rule – say a sign-post – got to do with my actions? What sort of

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 Introduction 5

great deal with one another, but there is no definitive set of characteristics that they
invariably have. Nevertheless, someone familiar with the concept will still be able to
recognize systems of property with sufficient accuracy that the concept is not devoid
of meaning.16
A somewhat different definitional approach would look not just to the various
features or rights within systems of property, trying to determine which ones are
essential. Instead, it might start by looking for an interest served by the body of law
going under the label “property.” James Penner, for example, adopts this kind of
definitional strategy (at least in part) when he defines property as the area of law
that is descriptively characterized by exclusion rights and normatively grounded
in “the interest we have in the use of things, an interest that he in turn grounds
largely in the value of individual autonomy.”17 In a sense, though, attempting to shift
the focus toward the interest served by property risks producing the bundle versus
essence debate. The question simply becomes whether the institution of property
serves one interest or several. Penner stakes out the position that property is the area
of law narrowly “grounded by the interest we have in the use of things.”18 In con-
trast to the position advocated by Penner, Hanoch Dagan and others have argued
that property simultaneously serves a variety of human values. Dagan “perceives
the values of property in an antifoundationalist spirit, as ‘pluralistic and multiple,
dynamic and changing, hypothetical and not self-evident, problematic rather than
determinative.’”19 Although this disagreement about the interests or values served
by property is an important and fruitful one, as a definitional matter it ought to be
possible (and it is arguably necessary) to understand what property is in the first
instance without taking a position on this normative question.
Perhaps the way out of this definitional muddle is to attempt to define property
neither in terms of essential substantive rights that a property system must include
nor in terms of the human interests it serves. Instead, we might look to a spe-
cific function that property performs. Jeremy Waldron takes this approach when
he defines the law of property as that area of law concerned with the function of
allocating material resources.20 Allocation is the process of “determining peace-
fully and reasonably predictably who is to have access to which resources for what
purposes and when.” More specifically, a system of private property (as opposed to

connexion is there here? – Well, perhaps this one: I have been trained to react to this sign in a particu-
lar way, and now I do so react to it.”)
16
See ibid.
17
Penner, Idea of Property in Law, 71.
18
Ibid.
19
Hanoch Dagan, “The Craft of Property,” CAL. L. REV. 91 (2003): 1517, 1561–2 (quoting Hessel E.
Yntema, “Jurisprudence on Parade,” MICH. L. REV. 39 (1941): 1154, 1169); see also Gregory S. Alexander,
“Pluralism and Property,” FORDHAM L. REV. 90 (2011): 101.
20
See Waldron, Private Property, 34–5.

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 6 Introduction

communal or collective property) provides a set of “rules governing access to and

control of material resources” that are “organized around the idea that resources are
on the whole separate objects each assigned and therefore belonging to some par-
ticular individual.”21 But such a system of private ownership is simply one possible
specification of the broader concept of a system for allocating material resources.
Such a functional definition of property helps to differentiate a domain of legal or
social institutions as “property,” but it is neutral as to exactly how rights are allocated
(in customized bundles or standard blocks with essential features) and as to the nor-
mative foundations for structuring the institution in one way rather than another.
From within this view of property as an institution for allocating rights to material
things, not all legal doctrines addressing what people can do with material things
would count as “property.” Waldron gives the example of laws against using knives
to stab people, which he classifies as the kind of law that we should not count as
“property.” Rather, he views these sorts of laws as side constraints that incidentally
affect property but that are rooted in broader norms about – for example – respect
for bodily integrity.22 On the other hand, a doctrine like nuisance, which aims to
define the boundary between owners’ rights to quiet enjoyment and other owners’
rights to do what they want with their land, has an allocative function that allows us
to correctly treat it as part of the law of property. Closer to the boundary, but arguably
still “property,” are doctrines that define (and allocate) rights of access and exclusion
between owners and nonowners. On this view, then, civil rights statutes prohibiting
exclusion from certain categories of property on certain restricted grounds would
arguably constitute “property laws.”

What Is a Theory of Property?

If we define property as the category of legal doctrines concerned with allocating
rights to material resources, we can understand a theory of property as an attempt
to provide a normative justification for allocating those rights in a particular way.
At the most basic level, a theory of property would answer the question of which
human interests are relevant to the project of allocating property rights. Those inter-
ests might be human autonomy, self-realization, aggregate well-being, or some com-
bination of these (and perhaps others).
Armed with a conception of the interests served by a system of property, a theory
of property would then aim to provide reasons for allocating rights in a particular
way. By extension, such a theory would also seek to supply those affected by the
property allocation with reasons for respecting it, even when refusing to do so might

21
See ibid., 38.
22
See ibid.

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 Introduction 7

make them better off. Depending on the content of the theory, the primary bearer
of property rights might be individual human beings or institutions of various sorts,
such as families, states, or corporations, among others.
In addition, a theory of property would attempt to specify the content of property
rights at various levels of generality – for example, the contours of the owner’s right
to exclude others from various kinds of property. Related to this process of specifi-
cation, a theory of property would likely have something to say about whether the
law should treat those rights as disaggregated sticks in a bundle of rights that can be
individually parceled out among different stakeholders or whether, instead, they
should go together in standardized clusters. After all, at first glance, it seems likely
that the bundle-of-sticks conception of property might serve various interests – such
as individual autonomy or aggregate well-being – differently than, say, a conception
that views property as coming in rigid standard-issue clusters.
Our goal in this book is to provide readers with an introduction to the theories of
property that have had the most influence on discussions of American property law.
In Part I, we provide broad overviews of the contours of these theories. We begin
with the two theories that have arguably dominated academic property thought in
recent years: utilitarianism (Chapter 1), which is closely aligned – though not iden-
tical – with the movement known as “law and economics,” and the property the-
ory developed by John Locke (Chapter 2), which has been extremely influential
on those who identify themselves as property rights libertarians. In Chapter 3, we
describe the elaborate property theory developed by German philosopher Georg
W. F. Hegel, as well as the work of more recent theorists who have built on Hegel’s
Philosophy of Right. In Chapter 4, we discuss the property theory articulated by
Hegel’s fellow countryman, Immanuel Kant. Although less influential in contem-
porary property circles, Kantian property theory has begun to gain adherents in
recent years, particularly among a group of scholars at the University of Toronto.
Finally, in Chapter 5, we explore a theory of property rooted in Aristotle’s concep-
tion of human flourishing. We will discuss the strengths of each of these theories, as
well as some of the most trenchant criticisms that have been leveled against them.
Our goal is not to provide comprehensive arguments on behalf of (or against) any of
these theories, but rather to introduce readers to their broad outlines and, hopefully,
to foster a deeper interest in property theory that will spark the reader to pursue these
questions in greater depth than a book of this length permits.
Having introduced readers to the principal contending theories, we shift focus
in Part II to a series of contemporary debates over issues relating to the nature of
property ownership. In Chapter 6, we discuss the problem of redistribution. When,
if ever, is the state permitted to take property from one person in order to give it to
another? When it does so, should it redistribute property “in kind” by tinkering with
the system of property law or should it define property without regard to distributive

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 8 Introduction

goals and rely on other mechanisms (e.g., a system of progressive taxation and
transfer payments) to pursue distributive justice?
In Chapter 7, we explore the nature of the right to exclude and rights of access as
they relate to private property. Should owners enjoy an unqualified right to exclude
others from their land or should they be required to permit access under certain
circumstances? What if owners choose to open up their property to others in order to
do business? Does that change the nature of their rights to exclude or do they retain
nearly absolute discretion to control access to their property? Are civil rights statutes
that prohibit discrimination in “places of public accommodation” merely a codifica-
tion of owners’ limited rights to exclude or are they a violation of those rights?
In Chapter 8, we discuss the related problems of eminent domain and so-called
regulatory takings. Under what circumstances can the state rightfully exercise the
awesome power of eminent domain? Can the state legitimately condemn an owner’s
property to encourage economic development? And when does the state’s restriction
of an owner’s use of property amount to a taking of property that triggers an obliga-
tion to compensate the owner for her losses?
Finally, in Chapter 9, we explore the extension of ownership to the domain of
ideas, or intellectual property. What are the various possible theoretical justifications
for giving creators and inventors (and, perhaps, their employers) ownership rights
over ideas? Can the theories of property that justify private ownership of tangible
property extend unproblematically to a new antibiotic or a musical composition?
How robust should rights of intellectual property be in light of the dependence of
new creations on prior intellectual achievements?
Our aim in these chapters is not to provide definitive answers to, or comprehen-
sive discussions of, any of these fascinating and important questions. Indeed, each of
them could sustain (and have sustained) their own book-length treatments. Instead,
our goal in Part II is to deepen readers’ understandings of the theories of property by
exploring how the theories we have introduced in Part I might approach the various
topics.

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