eprint Theoretical Inquiries in Law The Cegla Institute for Comparative and Private International Law The Buchmann Faculty of Law The Dynamic Analytics of Property Law Michael a heller Volume 2 January 2001 Number 1
The dynamic analytics of P operty Law Michael A. heller' The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership This essay suggests two appi creating new ideal types and synthesizing existing ones-that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing have made jurisprudential debates unsolvable and rendered concrete problems invisible Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.' Justice Benjamin Cardozo(1926) ODUCTIO Property theory scholarship works cyclically-reasoning from real-world contests over scarce resources, to analytic tools that translate these struggles into useful conceptual terms, to jurisprudential debates regarding the rightness of resulting allocations, to practical politics that implement one property regime or another, and then back to the on-the-ground struggles which refuse to hold still. What happens if the static categories of property scholarship have gone astray and familiar conceptual terms have failed to keep up with emerging property relations? Consider the familiar analytic tools of property theory: for example Professor of Law, University of Michigan. Thanks to Hanoch Dagan, Daphna Lewinson-Zamir, Ariel Porat, and the participants at the Cegla Institute Conference on Legal Scholarship. The University of Michigan Law School Cook Endowment provided generous research support I Berkey v. Third Ave Ry Co., 244N,Y. 84, 94, 155N E 58, 61(1926)
Theoretical inquiries in La Vol.2:79 2001] 80 The Dynamic Analytics of Property Law Blackstone's image of private property as"sole despotic dominion", 2 analysis of ownership, and typologies of justificatory arguments Hardins metaphor of the "tragedy of the commons and, more generally Tinkering with these matters has become a sort of benign addiction the division of ownership into a trilogy of private, commons, and state forms Each of these concepts has a distinguished pedigree and certain present In Becker's view, an analytic addiction is at least"benign, rather usefulness, but each also imposes a cost when it renders new forms of property pemicious, because"we would lose a great deal of clarity and rigor if [t invisible. This essay argues that property theory scholarship would benefit onceptual apparatus] were ignored. "6 Still, for Becker, the conceptual front from a more dynamic approach to analytics, one better suited to supporting has been adequately covered- it is good enough -and the main work for property theory lies elsewhere innovations at the frontiers of property Similarly, Jeremy Waldron suggests in his jurisprudential work a good enough approach to property analytics. As he puts it, the standard analytic framework"respects both the technician's sensitiv SHOULD ANALYTICS BE DYNAMIC? legal detail ohilosopher's need for a set of well-understood"ideal types' to serve as the focus of justificatory debate. ""In this view, a dynamic approach to ptoperty indeed, challenge the premise of this essay that analytics can and should be approached more dynamically. If analytics are understood just to mean stable, transparent, and neutral-seeming ideal types that allow people to argue workable taxonomy, then little fundamental would be gained by a renewe productively with each other regarding more substantive issues focus on conceptual work; indeed, analytic property theory would have a marginal role, simply cutting and pruning the well-tended vineyard of e roperty theorists also challenge the raison d' etre of property analytics om the other end of the spectrum, deploying what I call the never property terms. Further work on property concepts would quickly translate good enough approach. This approach rejects not just the existing analytic into mind-numbing parsing of taxonomic detail in a high Germanic style framework, but also the possibility of an improved version. For example, I call this taxonomic view of property analytics the good enough approach Thomas Grey once suggested that private property is, in the end, indefinable According to this view, we just need a reasonably consistent and intelligible in any useful or determinate way and that the categories we use to talk with common language of property that is good enough to sustain the more one another collapse on themselves upon closer examination. In this view, important normative and practical debates that follow. To give an example, atic or dyn be understood to be ab note Lawrence Becker's plea for more work on pluralist justifications for mystifying real power relations that, in essence, resist categorization. Like property in an article where he bluntly summarizes the current state of the good enough approach, the never good enough criticism does not seem to leave much room for further work on property analytics So the challenge from existing property theory is substantial: to thread What has been left undone? What has been done to death?. [An etween, on the one hand, a view that the taxonomies we have already are inquiry that has] been done enough(perhaps even overdone).is the od enough and normatively empty so further work amounts to, at best, a extensive recapitulation and dissection of the now-standard conceptual analysis of property theory: Hohfeld,'s analysis of rights, Honore's 5 Lawrence C. Becker, Too Much Property, 21 Phil& Pub. Aff. 196, 197-98(1992) 6 d 2 2 William Blackstone, Commentaries on the Laws of England"2 (Univ. of Chicago 7 Jeremy Waldron, Property Law, in A Companion to Philosophy of Law and Legal heory 3(Dennis Patterson ed, 1996). Press ed.1979)(176-1769) 3 Garrett Hardin, The Tragedy of the Commons, 162 Science 1243, 1244-45(1968). 8 See, e.g, Waldron, supra note 4, at 331-32("As categ of social, economic 4 See, e.g., Duncan Kennedy Frank I. Michelman, Are Property and Contract or political science, it is clear that these ideas of a private property system,a Eficient?, 8 Hofstra L. Rev. 711(1980); Frank I Michelman, Ethics, Economics collective property system, and a common property system are very much ideal and the Law of Property, in 24 NOMOS: Ethics, Economics and the Law 3, 5-6(J typic categories. It is also clear to quote Weber, 'none of these ideal types. is Roland Pennock& John W. Chapman eds, 1980); Jeremy Waldron, What is Private sually to be found in historical cases in pure'form. )(citing 1 Max Weber, Property 5 Oxford J Legal Stud. 313(1985) Economy and Society 216( Guenther Roth& Claus Wittich eds, 1968) 9 Thomas C Grey, The Disintegration of Property, 22 NOMOS 69, 69(1980)
Theoretical inquiries in Law [Vol.2:79 The Dynamic Analytics of Property La benign addiction, and, on the other hand, a position that conceptual work A. Private Property on closely observing on-the-ground, emerging property fray at the edges. For property theorists(and for ordinary layfolk"),the relations; asking whether the existing framework facilitates understanding of term seems reasonably coherent and capable of simple definition, despite and support for these new forms of ownership; and proposing new analytic Grey's arguments, For example, Michelman focuses his definition on rules tools where the present ones fail. Because people are constantly creating for initial acquisition and reassignment. He defines sole ownership to mean new types of property, I suggest that there remains substantial room for the rules must allow that at least some objects of utility or desire can be fully analytic innovation in property scholarship, innovation which, in turn, will owned by just on"and freedom of transfer to mean"owners ar carry normative punch when it redirects jurisprudential and practical debates immune from involuntary deprivation or modification of their ownership to new questions rights and empowered to transfer their rights to others at will, in whole or in part. "Similarly, Jeremy Waldron defines priv operty"around the idea that contested resources are to be regarded as separate objects each assigned I. THE PROPERTY TRILOGY AND ITS DISCONTENTS to the decisional authority of some particular individual (or family or To illustrate my argument more concretely, the discussion will focus on the These standard definitions can be multiplied many times over, but all preeminent analytic tool of property theory, that is, the well-worn trilogy ariake of and help keep current William Blackstone's endlessly repeated of ownership forms-private, commons, and state property. While I focus definition of private property as"that sole and despotic dominion which here on the trilogy, any of the other core concepts of property theory, such one man claims and exercises over the extermal things of the world as the bundle of rights"image, could equally sustain my argument, a point total exclusion of the right of any other individual in the universe. I7 While i discuss briefly in conclusion the image of sole dominion has never adequately described any real world The trilogy of ownership forms has long formed the focal point for property ownership, as even Blackstone recognized, the idea rings through normative and practical property debates. As Frank Michelman states, "We the ages and continues to block clear thinking about private property need some reasonably clear conceptions of regimes that are decidedly not Private property, with which [private property] can be compared. "This process of working from ideal types pervades property theory stretching back Locke's discussion of the State of Nature and forward to the modern law and-economics debates. Today, liberals and utilitarians deploy the trilogy in 12 See generally Michael A Heller, The Boundaries of Private Property, 108 Yale LJ calling for a tilt towards private property; socialists disparage private property l163(1999 and advocate more state control; and communitarians press for expanding 13 See Bruce Ackerman, Private Property and the Constitution 98-100(1977) the scope of commons property. Theorists push reforms towards one type or (discussing the layperson' s view of property as thing-ownership) the other, but none subjects the trilogy itself to much challenge. The trilogy 15 Michelman, supra note 4, at 4-5. These definitions hearken back to and build another is so entrenched as to seem almost natural, beyond serious contestation or steady part of the standard conceptual apparatus of property, crystallized in the elaboration. Before we go about constructing new ideal types or synthesizing Hohfeld-Honore picture of property as a"bundle of rights. "Wesley N.Hohfeld existing ones, let us briefly recapitulate the trilogy itself. So, what are these Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal ideal types? Essays 96(Walter W. Cook ed, 1923); A M Honore, Ownership, in Oxford Essays in Jurisprudence 107(AG. Guest ed, 1961). See also infra text accompanying notes 30-32(discussing the bundle of rights metaphor) 16 Waldron, supra note 7, at 6 18 See Robert W. Gordon, Paradoxical Property, in Early Modern Conceptions of 10 See, e.g,Jeremy Waldron, The Right to Private Property 44(1988) Property 96,96(ohn Brewer& Susan Staves eds, 1996)(discussing the ever-present I1 Michelman, supra note 4, at 5 thicket of restrictions Blackstone recognized in his day)
Theoretic [vol.2:79 The Dynamic Analytics of Property Law B Commons Property C State Commons property has been the residual category that theorists usually use when they describe a regime that is not private or state property. Michelman State property, also sometimes called collective property, can be defined as a property regime in which defines a commons property regime as one where "there are never any exclusionary rights. All is privilege. People are legally free to do as they [i]n principle, material resources are answerable to the needs and wish, and are able to do, with whatever objects(conceivably including in the [commons]. "9 To restate, this definition n purposes of society as a whole, whatever they are and however they means that every are determined, rather than to the needs and purposes of particul individual may use any object of property and no individual has the right to individuals considered on their own no individual has such an intimate association with any object that he can make decis Although this is not the place to elaborate the point, a useful distinction without reference to the interests of the collective 2 Ons about its use could be drawn between the utilitarians'image of commons property and the liberals notion of a State of Nature: the two images share a core definition As Jeremy Waldron notes, a state property regime is similar to commons everyone has privileges of inclusion and no one has rights of exclusion property in that no individual stands in a specially privileged position with but have different emphases and contexts. Liberal property theorists usually regard to any resource, but is distinguished from commons property in deploy the State of Nature image to describe a pre-political common that the state has a special status or distinct interest- that of owner of which then evolves towards private property; while the commons metapho all resources, able to include or exclude all individuals according to the of modern law-and-economists reflects their goal of explaining the marginal rules of that particular state.2 In other words, the collective, represented evolution towards private property in specific scarce resources, such as the usually by the state, holds all rights of exclusion and is the sole locus of enclosure of the English commons. For all these scholars, the transition decision-making regarding use of resources. So, a subsidiary set of questions commons to private property is the paradigmatic problem that property need to be answered to specify a state property regime fully, including what seeks to explain. is the"collective interest"and what procedures will be used to apply that conception to a particular case Today, for most property theorists, state property has become a less and less important category, particularly since the decline of socialist states and rise of the worldwide movement towards privatization. 4 For liberal, communitarian, and utilitarian theorists alike, the trilogy may elman, supra note 4, at 5. effectively reduce down to a dichotomy private and commons -so 20 See Waldron, supra note 4, at 329(many philosophers have used the idea of that all theoretical work takes place in the interplay of these two regimes common property to characterize the initial situation of men in relation to resources For example, Michelman says that a commons can be seen as"a scheme in the so-called"State of Nature"); see, e.g, Blackstone, supra note 2, 88 2-8: 2 John Locke, Two Treatises of Government at ch. V( Peter Laslett rev. ed. 1963) of universally distributed, all-encompassing privilege that is opposite to (3d ed. 1698)(Of Property), Rose uncovers the contradictions that these narratives obscure in moving across the commons/private boundary, Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 22 Waldron, supra note 4, at 328-29, 329 n 45 2 Yale J. L& Human. 52 (1990) sO C.B. MacPherson, Property ee, e. g, Terry L. Anderson pJ Hill, The Evolution of Property Rights: A Study Mainstream and Critical Positions 5-6(1978)(substantially the same definition of tate property) of the American West, 12 J. L. Econ. 163( 1975)(westem land); Harold Demsetz, 23 Waldron, supra note 4, at 329 Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347, 354(1967)( fur trappers); H. Scott Gordon, The Economic Theory of a Common-Property Resource 24 Property theorists always recognize that any actual regime will contain all elements The Fishery, 62 J. Pol. Econ. 124(1954); D. Bruce Johnsen, The Formation and of the trilogy we have identified, but they maintain the distinctions among the types Protection of Property Rights Among the Southern Kwakiutl indians, 15 J. Legal See, e.g., Robert C. Ellickson, Property in Land, 102 Yale L.J. 1305, 1381, 1381 tud. 41( 1986)(potlaching): Arthur F. McEvoy, The Fisherman's Problem(1986) n342(1993)(noting that large U.S. cities devote about 25% of developed land to fisheries); John Umbeck, A Theory of Contract Choice and the California Gold a ghways and streets and 10% more to public parks); see also id. at 1397 n413 Rush, 20 J.L.& Econ. 421(1977)(gold fields) ommenting that both law-and-economics and critical legal scholars have come to share the view that land regimes inevitably will(and implicitly should)mix private and public elements)