учебный год 2023 / !!The Property Platform in Anglo-American Law and the Primacy of the Property Concept

contracts. These are primary conditions for the type of autonomy that is protected when one has the right to exclude (and the corresponding right to include or contract away rights to the self or one’s labor), ownership of the self, and overall dominion over the self against all others.95 Every alteration of or infringement on property rights necessarily changes our understanding of the proper role of law vis-à- vis all things owned, including one’s self and his liberty, which in the Madisonian conception are part of the property each individual owns.96

Any system must decide what ownership in the self means. Every legal system must decide the level of protection or recognition of property in the self before it can make any decision on what rules to create in relation to real property, tort or contract. For these reasons, the property concept forms a platform upon which many other doctrines grow, including property, contract, and tort. The rules in all three develop on their own, but each can be measured from their consistency or deviation from a starting base of absolute property ownership in the self. Once we understand that the platform for each of these areas of law is based in the property concept, we can then have a metric for discussion to evaluate deviations from pure property principles that develop in each doctrine (or separate discipline) thereby allowing us to also isolate the most unique characteristics attributable only to a discrete subject, like contract or tort. But understanding that the property concept is at the base of all three legal species—property, contract, and tort—is nonetheless the necessary starting point for an understanding of any of them.

95. Justice Joseph Story has stated:

That government can scarcely be deemed to be free, where the rights of property are left solely dependent on the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require; that the rights of personal liberty and private property, should be held sacred.

Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 657 (1829).

96. As the Supreme Court posited in one case, “Individual freedom finds tangible expression in property rights.” United States v. James Daniel Good Real Prop., 510 U.S. 43, 61 (1993).

VI. A REQUIRED UNDERSTANDING: WHY THE “PROPERTY CONCEPT” HAS A PRIVILEGED STATION IN THE WHOLE OF ANGLO-AMERICAN PRIVATE LAW

Throughout history, “property has been the most important subdivision of the field of law.”97 This Article posits that property exists as the platform of law, upon which other fields rely and launch their own doctrines from. The literature is filled with passing references to interconnectivity of law. Some, for example, have described the law as a seamless web, although that view has its degrees of criticism.98

Some discuss specifically the link between property and other areas of law. A few examples are worth noting. William Howard Taft described “indissoluble” links between property, contract, and liberty.99 Friedrich Hayek proclaimed, “Law, liberty, and property are an inseparable trinity.”100 Richard Epstein describes an “abiding intellectual unity” between property, contract, and tort.101 Epstein succinctly describes the relationship: “Property law governs acquisition of the rights persons have in external things and even in themselves. Torts governs protection of the things reduced to private ownership. Contracts governs transfer of the rights so acquired and protected.”102 Freedom of contract indeed is dependent on the right of property.103 And the overlap between the features of property and the features of torts or wrongs is evident throughout the law.104

97.TOM BETHELL, THE NOBLEST TRIUMPH: PROPERTY AND PROSPERITY THROUGH THE AGES 20 (1998) (arguing property has had primacy in law “[si]nce Roman times”).

98.F.W. Maitland, A Prologue to a History of English Law, 14 L.Q.R. 13, 13 (1898) (discussing law as forming an organic unity, while stating that “[s]uch is the unity of all history that any one [sic] who endeavours to tell a piece of it must feel that his first sentence tears a seamless web”).

99.William H. Taft, The Right of Private Property, 3 MICH. L.J. 215, 218 (1894) (“[W]e inherited from our English ancestors the deep seated conviction that security of property and contract and liberty of the individual are indissolubly linked, as the main props of higher and progressive civilization . . . .”).

100.F.A. HAYEK, 1 LAW, LEGISLATION AND LIBERTY 107 (1973).

101.EPSTEIN, supra note 72, at vii.

102. Id.

103.JOHN STUART MILL, PRINCIPLES OF POLITICAL ECONOMY 280 (5th London ed. 1864) (“The right of property includes, then, the freedom of acquiring by contract.”).

104.“We . . . find that many of the most fundamental constitutive features of the law of property are actually found in the law of wrongs, both civil and criminal.” J.E. PENNER, THE IDEA OF PROPERTY IN LAW 74 (1997).

The major areas of private law admittedly have grown into distinct disciplines, but from the embryonic level, they rely on the basic principle of property to mature. At their conception, each was dependent, in whole or in part, on the property concept defined by the right to exclude or include, ownership, and dominion.

Although many scholars note the connections, they do not go as far as to describe a property platform, upon which most of the other areas of law must emerge. Under the accepted, limited definitions of property, many see correlations and overlaps between property, contracts, and torts,105 but few defend the proposition that contracts and torts are dependent on the definition of property.

Some scholars recognize similarities between property, torts, and contracts but are stuck on the idea that property relates only to “things” as a reason to limit their discussion of property’s place in contract and tort law. This Article has already discussed this limitation of the work of Merrill and Smith.106 Stoebuck and Whitman provide an example of such “things”-based thinking that prevents some from pursuing the property concept in contracts and torts when describing the Second Restatement of Property approach:

What distinguishes “property” from “personal” interests is that “property” interests (1) relate to “things”—land, chattels, and intangible “things”—and (2) are usually protected by law against an indefinitely large number of persons (“the world”). Some “personal” interests are protected against an indefinitely large number of persons but do not relate to “things”—e.g., the interest in freedom from personal injury caused by the

105. For example, although not focusing on a theoretical property concept, the ALI Restatement effort recognized some level of property’s connection with many other subjects:

At this moment in history Property seems a far less coherent intellectual subject than Contracts or Torts. There is much greater variation in what is included in introductory law-school courses. Most Property cases are also Contracts or Torts cases, and some—for example, enforcement of landlord-tenant regulations—are criminal cases. Real property as an independent field has become comparatively less important over time, and an introductory course in Property now considers principles applicable to corporation law, to environmental law, and to intellectual-property law.

LANCE LIEBMAN, AM. LAW INST., A CONCISE RESTATEMENT OF PROPERTY, at IV (2001). 106. See supra notes 67–68 and accompanying text.

intentional or negligent acts of others. Other “personal” interests relate to “things” but are generally enforceable against only one or a few persons—e.g., the interest in performance of promises made by the other party to a contract.107

But this “thing”-based distinction would disappear if we work from an understanding of property as including the person and the Madisonian broad definition.108

Because the right to exclude is at the essence of property’s definition,109 it is often discussed in property law and by property scholars. But it has vital application in torts and contracts too. As Merrill and Smith explain, “Together these rights to exclude and governance rules collectively make up the law of property and connect property to adjacent areas of contracts, torts, regulation, and public law,”110 yet their work only references this connection rather than directly applying the property analysis in these other areas of law. Moreover, they ultimately focus on a things-based definition that excludes the broader property concept and its considerations of the ownership of the self.

O. Lee Reed is one of the few writers to make an explicit case for property as a fundamental and organizing concept for all of law, describing the law as a wheel with property as its hub:

In both the theoretical and practical sense, however, “property” is an enormously significant word. . . . Property and liberty are intertwined in theory and history, and most of the subjects of law—contract, tort, criminal prohibition, regulation, and even much constitutional interpretation—fan out like spokes from the conceptual hub of property. The implications of these sweeping assertions both for the private market and those who

107.WILLIAM B. STOEBUCK & DALE A. WHITMAN, THE LAW OF PROPERTY 4 (3d ed. 2000) (describing the Second Restatement of Property view).

108.For the same reasons, we can look past any distinction based on the in rem versus in personam nature of property and contract laws and remedies as irrelevant.

109.Reed, supra note 51, at 473 (“From this essence, it is possible to define property as a single negative right, the right of exclusion as applied to limited resources.”).

110.MERRILL & SMITH, supra note 34, at v.

underlying theme of provision of protection and extension (c.p.) of (the freedom of) action. If property is a device used to protect means for action, whether it be the body, physical objects, or relationships with other people, then the concern of tort law may be seen to determine when wrongful interference has occurred . . . . The remainder of the civil side of the law is constituted by legal practices by which we are able to create means such as contracts, wills, trusts, estates in land, etc. which allow persons to extend their agency. These themselves, since they are means, are also protected from wrongful interference, and consequently are property.114

This “protection” theory comes closer to an understanding of property’s role as a critical element in contract and tort. Yet, neither Reed, nor Coval, Smith, and Coval, relate the identified connection to the right to exclude, ownership, dominion, and the related characteristics of the property concept herein described.

Randy E. Barnett’s explanation of the three areas (property, contract, and tort) accepts that the property concept is vital to each, even if the doctrine develops separately:

The law of contracts, property, and torts can be viewed as defining boundaries within which each person may make her own choices in pursuit of her own happiness. You are allowed to do what you wish with what is yours (as defined by property law), provided that you do not infringe (as defined by tort law) on the property of others—including the inalienable property rights one has in one’s own body. Contract law provides the means by which a person can transfer her property to another by her consent (although wholly gratuitous transfers are considered

114. S. Coval, J.C. Smith & Simon Coval, The Foundations of Property and Property Law, 45 C.L.J. 361, 474 (1986). “[T]he integration of these three areas of the law around the protections and furtherance (c.p.) of actions gives us another reason why we cannot separate the right to property from any of our other basic rights.”). Id. at 475.

to be an aspect of property law, not contracts).115

Thus, Barnett’s explanation better captures the idea of self-ownership as helping define the property concept broadly, and he ultimately comes close to explicitly indicating that the connection between the three—property, contract, and tort—is based on traits like exclusion, ownership, and dominion. In that regard, Barnett proceeds to explain that each discipline deals with “rightful domain”:

So contract, property, and torts—along with other subjects such as restitution—can be viewed as providing the legal boundaries that define the scope of individual liberty and distinguish rightful from wrongful conduct. To act rightfully is to remain within one’s boundaries; wrongful conduct is when one crosses over into another’s rightful domain. . . . Contract, property, and torts . . . distinguish[] those actions that are nevertheless permissible from those that are not.116

Referencing in part similar conclusions by Charles Fried,117 Barnett’s discussion of “rightful domain” is closely related to the ideas commonly accepted in property associated with the right to exclude, ownership, dominion, authority, and the sic utere maxim.

So, we return to consider the three species of Anglo-American law most at issue in this Article—property, contracts and torts. Each is architecturally and operationally distinct and does have its own enclave with different causes of action, different coverage, different aims, different enforcement, different remedies, and so on. But the fact that they are distinct does not negate the fact that the concept of

115. Randy E. Barnett, Contract Is Not Promise; Contract Is Consent, SUFFOLK U. L. REV. (forthcoming), available at http://ssrn.com/abstract=1792586, at 12.

116. Id.

117. As Barnett explains, Charles Fried has made very similar statements regarding this interrelationship. For example, Fried has explained that:

“The law of property defines the boundaries of our rightful possessions, while the law of torts seeks to make us whole against violations of those boundaries, as well as against violations of the natural boundaries of our physical person. . . . [T]he law of contracts facilitates our disposing of these rights on terms that seem best to us.”

Id. at 13 (quoting CHARLES FRIED, CONTRACT AS PROMISE 1-2 (1981)).

property permeates and is critical to the foundation of each. At the very least there is theoretical–rhetorical weight for property principles in the formation and evolution of all three species of law— even if the property concept is not the accepted, proffered justification for them.

The enforcement of consensual transactions is dependent on a determination that one has ownership, dominion, and authority to transfer the good or service involved in that transaction. A court must necessarily look at those property concepts whenever it is enforcing a contract. A court must also evaluate in some of those instances whether someone has exercised his right to include a person on his property or to use his property in labor for the benefit of another. The same is true when a court must provide a remedy for nonconsensual or objectionable acts or for transactions that rise to the level of a breach of contract or of an actionable tort. The nonconsensual or objectionable nature will be tested by whether there has been an intrusion against someone’s right to exclude or an otherwise unauthorized act on the property or (property in the) person of another.

A tort is an injury or wrong, but to what is it an injury or wrong? The injury must be inflicted upon something (property in the self or sometimes real or personal property), and it must be a wrong for some reason—because it violates a fundamental right to exclude others.

A contract is an exchange, but for what is it an exchange? Services are made by persons who have a choice whether to extend their labor precisely because they own themselves and the extension of themselves through labor. Goods are things—property owned by someone—which can only be lawfully exchanged if the person holding them and offering them for transfer has the authority to do so—i.e., property rights and dominion in them. One cannot trade something in contract unless and until she owns it. Again, the currency and objects of contract must first be made valid by property before accepting it as governed by the law of contract.

I am not contending that the species of private law are entirely linked, as they have developed over time. Each has developed its own constituencies, language, and vehicles and is invested in its separateness. Each is imbued with separate characteristics that have been manipulated to achieve different social ends. I am contending, however, that they share a common foundational base—the property concept and its platform—from which adherence or deviations can be measured.

Take the example of your fist. If one owns his fist, when he implants his fist in un-owned ground and improves it, he reduces it into his dominion, and ownership of that land is recognized in real property as a result of first possession and labor theory. The ownership of the land is an extension of the ownership in the self. Now consider tort law. I cannot implant my fist in another’s face because it violates that person’s ownership in himself and the reciprocal right of that person to exclude my fist. Implanting my fist in pre-owned property constitutes a trespass on real property. Implanting my fist in another’s face constitutes what looks like a “trespass” on a person in tort because my ownership of my fist ends at the tip of another’s ownership in his nose. Yet, because X owns his fist and Y owns his face, each with reciprocal rights to exclude the other in the first instance, each also has the right to include the other so long as the property each owns is alienable. This is the foundation of contract law and the right of exchange. Contract law governs the ability to alienate and adjust all or part of the property rights. Hence, we have the sport of boxing—a legalization of what would otherwise be a violation of another’s property in the self (or a tort) because of the exchange of property rights after an alteration of the initial assignment of those property rights through the contractual adjustment of the rights to exclude and include.

Of course, none of this requires that we recognize implanting the fist in land as enforceable real property rights, the implantation of the fist in the face as a tort, or an agreement to implant fists on each other’s person a legally sanctioned activity. A legal system could decide to prohibit such exchanges or not to recognize certain of these

things as wrongs, and so on. However, in order to make these decisions about recognizing or not recognizing such rights or obligations, the level of legal characterization of each of these activities does require any system to start with a decision on the contours of property and ownership and what those things mean. The development of property, contract, and tort rules require a decision on the level of recognition of the property concept that any system desires or will tolerate.

Accepting this platform contention as true, an alteration in our treatment of property principles has rippling effects on the whole of legal doctrine. As goes property, so goes the rest of the law—because the substance and character of our principles in property law will inform the starting assumptions and elements in each of the major substantive areas of legal doctrine. Property is a species of law that weaves its way all throughout the legal ecosystem, at least in terms of its underlying concepts.

The critical terms—the right to exclude, ownership, dominion, authority, and the sic utere maxim—normally segregated to our discussions of property law are transferable to the foundations of contract and tort law and deserve greater application in those disciplines. Within property law literature, scholars should also recognize that property scholarship does not have a monopoly on these terms. It is telling to recognize that contracts and torts scholars far more often recognize the applicability of property concepts to their fields than do property scholars recognize the broader application of their property concepts to other fields. Property scholarship needs a greater recognition of its place as the platform of much broader application than what has emerged as the property discipline. The development of our seemingly atomized property law can, by altering the base upon which others depend, have substantial consequences for the stability of the base of other artificially “distinct” species of law.