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《知识产权法》课程教学资源：Property Rules, Liability Rules, and Inalienability：One View of the Cathedral

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VOLUME 85 APRIL 1972 nUMBeR 6 HARVARD LAW REVIEW PROPERTY RULES, LIABILITY RULES AND INALIENABILITY ONE VIEW OF THE CATHEDRAL Guido calabresi and A douglas melamed s Professor Calabresi and Mr. Melamed develop a framework fe ve serves to integrate various legal relationships which are traditionally analyzed in separate subject areas such as Property and Tort using their model to suggest solutions to the pollution probler writers in the field, and by applying the model to the question criminal sanctions, they demonstrate the utility of such an integrated approach I. INTRODUCTION O NLY rarely are Property and Torts approached from a uni- fied perspective. Recent writings by lawyers concerned with economics and by economists concerned with law suggest, how ever, that an attempt at integrating the various legal relationships treated by these subjects would be useful both for the beginning student and the sophisticated scholar By articulating a concept of entitlements"which are protected by property, liability, or inalienability rules, we present one framework for such an ap- proach. We then analyze aspects of the pollution problem and of John Thomas Smith Professor of Law, Yale University. B.S. Yale, 1953; B, A. xford, I955; LL. B. Yale, I958; M A. Oxford, I959 * Member of the District of Columbia Bar. B A. Yale uni 1967: J D Harvard University, 197o See, e.g., Michelman, Pollution as a Tort: A Non-Accidental Perspective on Calabrest's CosTS, So YALE L.J. 647(1971)(analysis of three alternative rules in ollution problems); Demsetz, Toward a Theory of Property Rights, 57 AxE. CON. REv. 347(1967)(Vol. 2-Papers and Proceedings)(analysis of property ermalization which ignores liability rule alternatives a Since a fully integrated approach is probably impossible, it should be empha- d that this article concerns only one possible way of looking at and analyzin legal problems. Thus we shall not address ourselves to those fundamental legal questions which center on what institutions and what procedures are most suitable for making what decisions, except insofar as these relate directly to the problem of selecting the initial entitlements and the modes of protecting these entitlements. While we do not underrate the importance, indeed perhaps the primacy, of legal process considerations, see pp. III6-17 infra, we are merely interested in the light HeinOnline 85 Harv. L Rev. 10891971-1972

VOLUME 85 APRIL 1972 NUMBER 6 HARVARD LAW REVIEW PROPERTY RULES, LIABILITY RULES, AND INALIENABILITY: ONE VIEW OF THE CATHEDRAL Guido Calabresi * and A. Douglas Melamed Professor Calabresi and Mr. Melamed develop a framework for legal analysis which they believe serves to integrate various legal relationships which are traditionally analyzed in separate subject areas such as Property and Torts. By using their model to suggest solutions to the pollution problem that have been overlooked by writers in the field, and by applying the model to the question of criminal sanctions, they demonstrate the utility of such an integrated approach. I. INTRODUCTION O NLY rarely are Property and Torts approached from a unified perspective. Recent writings by lawyers concerned with economics and by economists concerned with law suggest, however, that an attempt at integrating the various legal relationships treated by these subjects would be useful both for the beginning student and the sophisticated scholar.' By articulating a concept of "entitlements" which are protected by property, liability, or inalienability rules, we present one framework for such an approach.2 We then analyze aspects of the pollution problem and of * John Thomas Smith Professor of Law, Yale University. B.S. Yale, i953; B.A. Oxford, T955; LL.B. Yale, 1958; M.A. Oxford, 1959. ** Member of the District of Columbia Bar. B.A. Yale University, 1967; J.D. Harvard University, 1970. See, e.g., Michelman, Pollution as a Tort: A Non-Accidental Perspective on Calabresi's Costs, So YAL_ L.J. 647 (1971) (analysis of three alternative rules in pollution problems); Demsetz, Toward a Theory of Property Rights, 57 Am. EcoN. REv. 347 (1967) (Vol. 2 -Papers and Proceedings) (analysis of property as a means of cost internalization which ignores liability rule alternatives). 2 Since a fully integrated approach is probably impossible, it should be emphasized that this article concerns only one possible way of looking at and analyzing legal problems. Thus we shall not address ourselves to those fundamental legal questions which center on what institutions and what procedures are most suitable for making what decisions, except insofar as these relate directly to the problems of selecting the initial entitlements and the modes of protecting these entitlements. While we do not underrate the importance, indeed perhaps the primacy, of legal process considerations, see pp. 1116-17 infra, we are merely interested in the light 1089 HeinOnline -- 85 Harv. L. Rev. 1089 1971-1972

HARVARD LAW REVIEW criminal sanctions in order to demonstrate how the model enables us to perceive relationships which have been ignored by writers in those field The first issue which must be faced by any legal system is one we call the problem of"entitlement "Whenever a state is pre sented with the conflicting interests of two or more people, or two or more groups of people, it must decide which side to favor. Absent such a decision, access to goods, services, and life itself wi be decided on the basis of "might makes right'-whoever stronger or shrewder will win. Hence the fundamental thing that law does is to decide which of the conflicting parties will be en- titled to prevail. The entitlement to make noise versus the en- titlement to have silence, the entitlement to pollute versus the entitlement to breathe clean air. the entitlement to have children versus the entitlement to forbid them -these are the first order of legal decisions Having made its initial choice, society must enforce that hoice. Simply setting the entitlement does not avoid the problem of"might makes right"; a minimum of state intervention is always necessary. Our conventional notions make this easy to compre- that a rather different approach may shed on problems frequently looked at pri marily from a legal process point of view. As Professor Harry Wellington is fond of saying about many discussions of w, this article is meant to be only one of Monets paintings of the Cathedral at Rouen. To understand the Cathedral one must see all of them. See G. HAMILTON, One could of course look at the state as simply a larger coalition of friends designed to enforce rules which merely accomplish the dominant coalitions desires. Rules of law would then be no more than "might makes right" writ large. Such decides too many issues in response to too many different coalitions. This fact, by itself, would require a different form of analysis from that which would suffice to explain entitlements resulting from more direct and decentralized uses of "might 4 For an excellent presentation of this general point by an economist, see Samuels, Interrelations Between Legal and Economic Processes, I4 J. LAw EcoN, 435(I97r) We do not intend to imply that the state relies on force to enforce all or most ly force wo win. The use by the state of feelings of obligation and rules of morality as means of enforcing most entitlements is not only crucial but terribly efficient. Conversely, bsent the state, individuals would probably agree on rules of behavior which rould govern entitlements in whole series of situations on the basis of criteria ther than "might makes right. "That these rules might themselves reflect the same for legal entitlements is, of neither here nor there. What is important is that these social compacts" would no less than legal entitlements, give rise to what may be called obligations. These ehave in accordance with the particular cases regardless of the existence of a predominant force. In this article HeinOnline 85 Harv. L Rev. 1090 1971-1972

HARVARD LAW REVIEW criminal sanctions in order to demonstrate how the model enables us to perceive relationships which have been ignored by writers in those fields. The first issue which must be faced by any legal system is one we call the problem of "entitlement." Whenever a state is presented with the conflicting interests of two or more people, or two or more groups of people, it must decide which side to favor. Absent such a decision, access to goods, services, and life itself will be decided on the basis of "might makes right" -whoever is stronger or shrewder will win.' Hence the fundamental thing that law does is to decide which of the conflicting parties will be entitled to prevail. The entitlement to make noise versus the entitlement to have silence, the entitlement to pollute versus the entitlement to breathe clean air, the entitlement to have children versus the entitlement to forbid them - these are the first order of legal decisions. Having made its initial choice, society must enforce that choice. Simply setting the entitlement does not avoid the problem of "might makes right"; a minimum of state intervention is always necessary.' Our conventional notions make this easy to comprethat a rather different approach may shed on problems frequently looked at primarily from a legal process point of view. As Professor Harry Wellington is fond of saying about many discussions of law, this article is meant to be only one of Monet's paintings of the Cathedral at Rouen. To understand the Cathedral one must see all of them. See G. HAMILTON, CLAUDE MONET'S PAINTINGS or ROUEN CATHEDRAL 4-5, 19-20, 27 (196o). ' One could of course look at the state as simply a larger coalition of friends designed to enforce rules which merely accomplish the dominant coalition's desires. Rules of law would then be no more than "might makes right" writ large. Such a view does not strike us as plausible if for no other reason than that the state decides too many issues in response to too many different coalitions. This fact, by itself, would require a different form of analysis from that which would suffice to explain entitlements resulting from more direct and decentralized uses of "might makes right." 4 For an excellent presentation of this general point by an economist, see Samuels, Interrelations Between Legal and Economic Processes, 14 J. LAW & EcoN. 435 (1971). We do not intend to imply that the state relies on force to enforce all or most entitlements. Nor do we imply that absent state intervention only force would win. The use by the state of feelings of obligation and rules of morality as means of enforcing most entitlements is not only crucial but terribly efficient. Conversely, absent the state, individuals would probably agree on rules of behavior which would govern entitlements in whole series of situations on the basis of criteria other than "might makes right." That these rules might themselves reflect the same types of considerations we will analyze as bases for legal entitlements is, of course, neither here nor there. What is important is that these "social compacts" would, no less than legal entitlements, give rise to what may be called obligations. These obligations in turn would cause people to behave in accordance with the compact in particular cases regardless of the existence of a predominant force. In this article 1o9o [Vol. 85:1o89 HeinOnline -- 85 Harv. L. Rev. 1090 1971-1972

I972] PROTECTING ENTITLEMENTS hend with respect to private property. If Taney owns a cabbage patch and Marshall, who is bigger, wants a cabbage, he will get it unless the state intervenes But it is not so obvious that the state must also intervene if it chooses the opposite entitlement, com- munal property. If large Marshall has grown some communal cabbages and chooses to deny them to small Taney, it will take state action to enforce Taney 's entitlement to the communal cab- bages. The same symmetry applies with respect to bodily in- egrity. Consider the plight of the unwilling ninety-eight-pound weakling in a state which nominally entitles him to bodily in tegrity but will not intervene to enforce the entitlement against a lustful Juno. Consider then the plight-absent state intervention -of the ninety-eight-pounder who desires an unwilling Juno in a state which nominally entitles everyone to use everyone elses body. The need for intervention applies in a slightly more com- plicated way to injuries. When a loss is left where it falls in an auto accident it is not because god so ordained it. Rather it is because the state has granted the injurer an entitlement to be free of liability and will intervene to prevent the victims friends, if they are stronger, from taking compensation from the injurer. The loss is shifted in other cases because the state has granted an entitlement to compensation and will intervene to prevent the stronger injurer from rebuffing the victims requests for com- e are not concerned as much with the workings of such obligations as with the reasons which may explain the rules which themselves give rise to the obligations. " Bigger"obviously does not refer simply to size, but to the sum of an indi- viduals resources. If Marshall,'s gang possesses superior brain and brawn to that e Different cultures deal with the problem in different ways. Witness the fol Life Insurance" Fee is 4 Bulls and $I2o0. Port Moresby, New guinea. Peter Howard proved that he values his life more than four bulls and SI20D. But he wants $24 and one pig in change. Mr. Howard gave the money and livestock to members of the jiga tribe, which had threatened to kill him because he killed a tribe member in an auto accident last October 29 The police approved the extortion agreement after telling the 38 year old Mr. Howard they could not protect him from the sworn vengeance of th ribe, which lives at Mt. Hagen, about 35o miles Northeast of Port Moresby. Mr. Howard, of Cambridge, England, was attacked and badly beaten by the tribesmen after the accident They said he would be killed unless the payment of money and bulls was made according to the tribal traditions. It was the first time a white man in New guinea had been forced to bow to tribal law After making the payment, Mr. Howard demanded to be the assault on him by the tribesmen. He said he wanted $24 and one pig. A Jiga spokesman told him the tribe would "think about it. "New York Times, Feb. I6, I972, at I7, col. 6 HeinOnline 85 Harv. L Rev. 1091 1971-1972

PROTECTING ENTITLEMENTS hend with respect to private property. If Taney owns a cabbage patch and Marshall, who is bigger, wants a cabbage, he will get it unless the state intervenes. But it is not so obvious that the state must also intervene if it chooses the opposite entitlement, communal property. If large Marshall has grown some communal cabbages and chooses to deny them to small Taney, it will take state action to enforce Taney's entitlement to the communal cabbages. The same symmetry applies with respect to bodily integrity. Consider the plight of the unwilling ninety-eight-pound weakling in a state which nominally entitles him to bodily integrity but will not intervene to enforce the entitlement against a lustful Juno. Consider then the plight - absent state intervention - of the ninety-eight-pounder who desires an unwilling Juno in a state which nominally entitles everyone to use everyone else's body. The need for intervention applies in a slightly more complicated way to injuries. When a loss is left where it falls in an auto accident, it is not because God so ordained it. Rather it is because the state has granted the injurer an entitlement to be free of liability and will intervene to prevent the victim's friends, if they are stronger, from taking compensation from the injurer.6 The loss is shifted in other cases because the state has granted an entitlement to compensation and will intervene to prevent the stronger injurer from rebuffing the victim's requests for compensation. we are not concerned as much with the workings of such obligations as with the reasons which may explain the rules which themselves give rise to the obligations. "Bigger" obviously does not refer simply to size, but to the sum of an individual's resources. If Marshall's gang possesses superior brain and brawn to that of Taney, Marshall's gang will get the cabbages. ' Different cultures deal with the problem in different ways. Witness the following account: "Life Insurance" Fee is 4 Bulls and $i2oo. Port Moresby, New Guinea. Peter Howard proved that he values his life more than four bulls and $12oo. But he wants $24 and one pig in change. Mr. Howard gave the money and livestock to members of the Jiga tribe, which had threatened to kill him because he killed a tribe member in an auto accident last October 29. The police approved the extortion agreement after telling the 38 year old Mr. Howard they could not protect him from the sworn vengeance of the tribe, which lives at Mt. Hagen, about 350 miles Northeast of Port Moresby. Mr. Howard, of Cambridge, England, was attacked and badly beaten by the tribesmen after the accident. They said he would be killed unless the payment of money and bulls was made according to the tribal traditions. It was the first time a white man in New Guinea had been forced to bow to tribal laws. After making the payment, Mr. Howard demanded to be compensated for the assault on him by the tribesmen. He said he wanted $24 and one pig. A Jiga spokesman told him the tribe would "think about it." New York Times, Feb. 16, 1972, at r7, col. 6. 1972] lO91 HeinOnline -- 85 Harv. L. Rev. 1091 1971-1972

Io92 HARVARd LAW REVIEW [Vol. 85: IoS9 The state not only has to decide whom to entitle, but it must also simultaneously make a series of equally difficult second order decisions. These decisions go to the manner in which entitlements are protected and to whether an individual is allowed to sell or trade the entitlement. In any given dispute, for example, the state must decide not only which side wins but also the kind of protec tion to grant. It is with the latter decisions, decisions which shape the subsequent relationship between the winner and the loser, that this article is primarily concerned. We shall consider three types of entitlements titlements protected by property rules, en- titlements protected by liability rules, and inalienabl e entitle ments. The categories are not of course, absolutely distinct; but the categorization is useful since it reveals some of the reasons which lead us to protect certain entitlements in certain ways An entitlement is protected by a property rule to the extent that someone who wishes to remove the entitlement from its holder must buy it from him in a voluntary transaction in which the value of the entitlement is agreed upon by the seller. It is the form of entitlement which gives rise to the least amount of state intervention: once the original entitlement is decided upon, the state does not try to decide its value. It lets each of the parties say how much the entitlement is worth to him, and gives the seller a veto if the buyer does not offer enough. Property rules involve a collective decision as to who is to be given an initial entitle- ment but not as to the value of the entitlement Whenever someone may destroy the initial entitlement if he is willing to pay an objectively determined value for it, an entitle ment is protected by a liability rule. This value may be what it is thought the original holder of the entitlement would have sold it for. But the holder's complaint that he would have demanded more will not avail him once the objectively determined value is set. Obviously, liability rules involve an additional stage of state intervention: not only are entitlements protected but their trans fer or destruction is allowed on the basis of a value determined by some organ of the state rather than by the parties themselves An entitlement is inalienable to the extent that its transfer is not permitted between a willing buyer and a willing seller. The state intervenes not only to determine who is initially entitled and to determine the compensation that must be paid if the en "A property rule requires less state intervention only in the sense that inter- vention is needed to decide upon and enforce the initial entitlement but not for the separate problem of determining the value of the entitlement. Thus, if a par- alar property entitlement is especially difficult to enforce- for example, the right personal security in urban areas-the actual amount of state intervention can e very high and could, perhaps, exceed that needed for some entitlements pro- tected by easily administered liability rules. HeinOnline 85 Harv. L Rev. 1092 1971-1972

HARVARD LAW REVIEW The state not only has to decide whom to entitle, but it must also simultaneously make a series of equally difficult second order decisions. These decisions go to the manner in which entitlements are protected and to whether an individual is allowed to sell or trade the entitlement. In any given dispute, for example, the state must decide not only which side wins but also the kind of protection to grant. It is with the latter decisions, decisions which shape the subsequent relationship between the winner and the loser, that this article is primarily concerned. We shall consider three types of entitlements - entitlements protected by property rules, entitlements protected by liability rules, and inalienable entitlements. The categories are not, of course, absolutely distinct; but the categorization is useful since it reveals some of the reasons which lead us to protect certain entitlements in certain ways. An entitlement is protected by a property rule to the extent that someone who wishes to remove the entitlement from its holder must buy it from him in a voluntary transaction in which the value of the entitlement is agreed upon by the seller. It is the form of entitlement which gives rise to the least amount of state intervention: once the original entitlement is decided upon, the state does not try to decide its value.' It lets each of the parties say how much the entitlement is worth to him, and gives the seller a veto if the buyer does not offer enough. Property rules involve a collective decision as to who is to be given an initial entitlement but not as to the value of the entitlement. Whenever someone may destroy the initial entitlement if he is willing to pay an objectively determined value for it, an entitlement is protected by a liability rule. This value may be what it is thought the original holder of the entitlement would have sold it for. But the holder's complaint that he would have demanded more will not avail him once the objectively determined value is set. Obviously, liability rules involve an additional stage of state intervention: not only are entitlements protected, but their transfer or destruction is allowed on the basis of a value determined by some organ of the state rather than by the parties themselves. An entitlement is inalienable to the extent that its transfer is not permitted between a willing buyer and a willing seller. The state intervenes not only to determine who is initially entitled and to determine the compensation that must be paid if the en- ' A property rule requires less state intervention only in the sense that intervention is needed to decide upon and enforce the initial entitlement but not for the separate problem of determining the value of the entitlement. Thus, if a particular property entitlement is especially difficult to enforce - for example, the right to personal security in urban areas - the actual amount of state intervention can be very high and could, perhaps, exceed that needed for some entitlements protected by easily administered liability rules. 1092 [VOL. 85:1o89 HeinOnline -- 85 Harv. L. Rev. 1092 1971-1972

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