8

Possession and the Distractions of Philosophy

Lisa M. Austin*

1. Introduction: The Puzzle

Possession is puzzling.

In property law, it is one of the core doctrinal ideas. Moreover, it has multiple aspects.1 It can refer to the relationship between a person and a thing (such as when we inquire into the facts concerning whether a person is in physical control); it can refer to the rights that follow from that relationship (such as the right of possession); and it can refer to the question of to whom these rights can be attributed (the question of title). Sometimes these different aspects are not clearly separated in a particular case, and which facts are decisive in meeting the test for possession in different legal contexts varies widely. Indeed, its perceived fluidity has often led to charges of being simply a vehicle for judicial policy making.2

That possession is both central to the law of property and doctrinally puzzling makes it an attractive focus for legal theorists. But this theoretical attention introduces another set of puzzles. One of the predominant trends in theoretical reflection upon possession is to focus on the idea of first possession as the key to understanding possession generally, and to claim that the key to unlocking the mystery of first possession is to look to the underlying justification for property rights. In this chapter I claim that these two moves are mistaken. Before I outline my claim, let me provide several examples.

In Richard Epstein’s well-known article on possession, he argues that the question of possession is: ‘What principles decide which individuals have ownership rights (whatever they precisely entail) over what things.’3 This is what I have labelled above as the question of title. It is distinct from questions regarding the nature of ownership rights and justifications for ownership. However, in examining the common law rule that first possession of an unowned thing can support a claim to ownership, Epstein in fact looks to various theories regarding the nature of, and

* I would like to thank the participants of The Private Law Theory Workshop (University of Toronto, April 2012), the participants of The Philosophical Foundations of Property Law (UCL, May 2012), Christopher Essert, Amnon Lehavi, and the editors of this volume for their helpful comments on earlier versions of this chapter.

1 Dias 1956, 247. 2 Dias 1956, 239.

justification for, property (for e.g. the labour theory, custom).4 The central problem, he claims, is that ‘[t]here is no way that any individual act can account for a claim of right against the rest of the world.’5 In the end, he defends first possession as providing a better system of property rights—largely because this is the system we have inherited. As he states:

It may be an unresolved intellectual mystery of how a mere assertion of right can, if often repeated and acknowledged, be sufficient to generate the right in question. As an institutional matter, however, it is difficult in the extreme to conceive of any other system.6

What is interesting is the arc of this argument. He begins by announcing a focus on the question of title but in seeking to answer this question becomes tied up in the seeming unilateral nature of the claim and, from there, at least some of the questions regarding the nature of, and justification for, ownership.

Something similar occurs in Carol Rose’s now canonical article about possession. Her focus, as her title suggests, is on the question ‘[h]ow do things come to be owned?’7 In particular, she points to the common law maxim that ‘first possession is the root of title’.8 She argues that in trying to answer the question of why possession is the basis for title, we ‘hit on some fundamental views about the nature and purposes of a property regime’.9 Cases like Pierson v Post, according to Rose, indicate an apparent tension between two principles—the clear-act and the reward- to-labour principles.10 However, this tension can be reconciled if we understand the clear-act principle to require individuals to speak ‘clearly and distinctly’ about their property claims, which turns out to be useful labour from the perspective of economic theory: ‘[w]e will all be richer when property claims are unequivocal, because that unequivocal status enables property to be traded and used at its highest value.’11 The question of title, therefore, ultimately is resolved (or made less mysterious) by looking at the functions of property.

This theoretical attention to first possession, along with the strategy of looking to the justifications and functions of property for clarification are consistent with a much older tradition of philosophical reflection. As J. W. Harris points out, ‘[f]rom classical times there has been a juristic tendency to cloth the law’s reliance on first occupancy as a root of title with the dress of natural right.’12 The natural law

4Epstein 1979, 1225 ff.

5Epstein 1979, 1230. Even if we posit an original community where all property rights are held in common, a parallel problem arises: ‘there is nothing which says that those who prefer common ownership should prevail over those who do not. Equality of rights could be achieved by treating each individual as having the equal entitlement to convert unowned things to his ownership, or by treating all as equal co-owners of resources in the common pool. Neither is easily justified, and the latter has no obvious superiority over the former.’ (Epstein 1979, 1238.)

‘ambiguous subtexts’ and points to the role of audience in determining which kinds of communications count: ‘the audience presupposed by the common law of first possession is an agrarian or a commercial people’ which has largely left out property claims based on aboriginal practices of land use (Rose 1985, 87).

12 Harris 1996, 214.

tradition, with its state-of-nature stories, gives a central position to first possession in accounts of property. But these strategies are also consistent with interpretive theories of law, such as Ronald Dworkin’s, that argue that what the law is is not simply a matter of description but is always also a matter of justification. For Dworkin, ‘Lawyers are always philosophers, because jurisprudence is part of any lawyer’s account of what the law is.’13 Therefore an interpretive account of the law of possession would insist that what possession is is bound up with its justification.

My claim in this chapter is that theoretical accounts of possession that take this question of justification as central are mistaken. We can unravel what it means for the law to recognize a right to possession, and in doing so account for the main features of the law, without having to also say something about why we have private property and why it is valuable. This claim rests upon two interrelated points. The first point is that justifying a particular element of a practice (like possession) is different from justifying the practice as a whole (like property law, or even law more generally). Answering questions regarding the elements of a practice requires reference to the practice itself but not the reasons for the practice. The second point is that the relevant practice that can illuminate the nature of possession is the practice of law itself. By this I mean the particular ideas of the rule of law and the omnilateral structure that is distinctive of legal relations. I argue that these constitutive elements of law provide the central organizing principles of possession and the idea of private ownership in the common law. This is why justificatory strategies that rely on extra-legal ideas—whether by imagining a pre-legal state of nature or by passing quickly through law to weightier ideas of substantive justice— distract us from seeing the centrality of law to a proper understanding of possession.

2. Legal Justification

In this section I want to offer a different view of legal justification. In order to outline what I mean by legal justification, I draw upon a distinction made by Rawls in an early essay entitled ‘Two Concepts of Rules’. In it Rawls claims that there is an important difference ‘between justifying a practice and justifying a particular action falling under it’.14 After outlining what this distinction is for Rawls, and why he thinks it important, I show how it can help us distinguish between what are very different types of justification.

By ‘practice’ Rawls means ‘any form of activity specified by a system of rules which defines offices, roles, moves, penalties, defences, and so on, and which gives

13Dworkin 1986, 380.

14Rawls 1955, 3. This distinction is not unique to Rawls. He himself was influenced by Hart’s understanding of rules and social practices, although I will not take up the question of their relationship here except to say that Hart does not make ideas of the rule of law as central to his account of law as a social practice as I do here. Rawls was specifically concerned in this article to defend a version of rule utilitarianism. This, and his particular example regarding promising, has given rise to a large literature that I cannot discuss here, much of it about utilitarian accounts of promising.

the activity its structure’.15 One could substitute for ‘practice’ some other terms like ‘institution’ or ‘system of rules’ and Rawls does this at various points. The main point of Rawls’s invocation of the distinction between justifying a practice and justifying a particular action that falls under that practice is that different types of arguments are appropriate for the different questions. When we justify a practice, we ask whether that practice is valuable on grounds that themselves are independent of the practice; when we justify a particular action that falls under a practice, we remain within the terms of the practice itself and seek to explain that particular action as part of the practice.16

Rawls argues that the neglect of the distinction between justifying a practice and justifying a particular action that falls under the practice is connected to ‘misconceiving the logical status of the rules of practices’.17 One conception of rules, he argues, is the ‘summary view’ and this conceals the importance of the distinction. Although Rawls is concerned with the summary view in the context of utilitarian claims, several things are important to note about its features. On the summary account, rules are ‘reports that cases of a certain sort have been found on other grounds to be properly decided in a certain way’.18 Individual cases are decided on grounds such as direct utilitarian calculations and the rules that develop are ‘summaries’ of this, and function as helpful guides for rational decision. One element of this is that ‘[t]he performance of the action to which the rule refers doesn’t require the stage-setting of a practice of which this rule is a part’.19 Although Rawls frames his distinction in terms of utilitarianism, his central point is more general—one view of rules sees them as able to be articulated on grounds that do not themselves rely upon the practice.

Rawls contrasts this with what he calls the ‘practice conception’ of rules. In contrast with the summary view, where rules summarize individual cases, the rules define a practice. It is the practice that is logically prior to particular cases and is what provides the definition of the individual action:

given any rule which specifies a form of action (a move), a particular action which would be taken as falling under this rule given that there is the practice would not be described as that sort of action unless there was the practice. In the case of actions specified by practices it is logically impossible to perform them outside the stage-setting provided by those practices, for unless there is the practice, and unless the requisite proprieties are fulfilled, whatever one does, whatever movements one makes, will fail to count as a form of action which the practice specifies. What one does will be described in some other way.20

Rawls provides the example of baseball: one can only steal a base in a game of baseball. From this Rawls draws a number of important implications. He argues

15Rawls 1955, 3.

16Rawls also argues that within a particular practice there are different arguments open to individuals who hold different offices within that practice and which are themselves defined by that practice (Rawls 1955, 28). This point regarding the different kinds of arguments open to individuals in different offices is what Dworkin resists with his claim that legal philosophy is essentially the same as what judges or citizens do when interpreting the law. See e.g. Dworkin 2004, 2: ‘a legal philosopher’s theory of law is not different in character from, though it is of course much more abstract than, the ordinary legal claims that lawyers make from case to case.’

that ‘[i]f one wants to perform an action specified by a practice, the only legitimate question concerns the nature of the practice itself (“How do I go about making a will?”)’.21 Justification of one’s particular actions are better understood as explanations that show these actions accord with the practice.22

We can map these two conceptions of rules onto two conceptions of legal justification in relation to possession. If we adopt the summary view then we would seek to understand possession in light of its desirability in relation to external factors that are not themselves part of the practice of private property or even law. This is, as I have already outlined, the dominant theoretical strategy. If we instead adopt the practice conception of rules then we would seek to understand possession in relation to the practice that provides its possibility. The justificatory question, on this latter view, is not concerned with accounting for the desirability of the doctrine of possession but with explaining why it is an aspect of a larger social practice. It is like stealing a base in baseball: only possible because of a particular practice and therefore only intelligible in relation to that practice.

What I want to further suggest is that the relevant social practice that makes possession intelligible is law itself. Even more strongly, the claim is that certain constitutive elements of the practice of law form the organizing principles of the law of possession, and indeed of private ownership.

But what does it mean for law to be a practice? Most accounts of the nature of law, despite important differences, include some acknowledgement that the rule of law is a constitutive element. It is the rule of law that I want to invoke as providing a set of ideas about the practice of law in relation to which possession can be understood and explained. There are many different views regarding the rule of law, involving its formal aspects, its procedural elements, and its substantive demands. There are also many different views regarding its basic nature, in particular whether it is a moral or prudential ideal. While it is beyond the scope of this chapter to provide a full account of where I stand in relation to all these debates, I do want to outline a number of formal elements of the rule of law that are fairly uncontroversial and then say a few general things that are likely more controversial but, I hope to show in the following sections, helpful when applied to the task of rendering possession intelligible in relation to the practice of law.

Most accounts of the rule of law agree that its core elements include what Lon Fuller called the ‘principles of legality’: generality, publicity, non-retroactivity, clarity, non-contradiction, ability to comply, stability, and congruence between rule and enforcement.23 Although there might be different accounts of how we should understand these principles to cohere, these features are usually understood to support two general ideas regarding the rule of law: (1) that it constrains the exercise of state power (whether by judges or other officials); (2) that it permits individuals to plan in light of the legal consequences of their actions.24

23Fuller 1969. There are also procedural aspects which I do not discuss here.

24Waldron 2008.