their dispute goes both to the meaning of ‘chef ’ and to the question of what makes someone a chef.

1.2 Disagreement that is partly substantive and partly verbal

I turn to the work of James Penner for a disagreement over property that is both partly substantive and partly verbal. Penner is a well-known opponent of the claim that property is a bundle of rights.15 Insofar as this claim is a slogan, Penner is not concerned to refute it, because he regards a slogan as ‘an expression that conjures up an image, but which does not represent any clear thesis or set of propositions’.16 Pace Penner, I claim that at least my version of the bundle theory is a theory because it sees property as a set of relations between persons with respect to things. In making this claim, I have to confront his insistence that it is ‘quite mistaken’ to see this claim ‘as any kind of analysis or substantial thesis’ because that would take property to be ‘a structural composite, i.e., that its nature is that of an aggregate of fundamentally distinct norms’.17 A chapter of a book I wrote is a conspicuous target of his critique.18

a) Clarifying the disagreement

It is not easy to get clear on what Penner’s alternative position is, for he states his position, or perhaps positions, in different ways. The three most prominent ways are:

W1—Property is the right to exclude (or, sometimes, the right of exclusive use). W2—The right to property is the right to exclude.

W3—The right to (or of ) property is the right of exclusive use.

It is not so much that one of these ways dominates Penner’s writing as that he oscillates among them. As an example of W1, under such headings as ‘the definition of property’ and ‘an alternative definition of property’,19 he writes:

The foregoing analysis of property as the right of exclusive use implicitly undermines the substantive bundle of rights thesis . . . . Property qua the right of exclusive use stands for the proposition that property is not by its nature some bundled together aggregate or complex of norms, but a single, coherent right.20

Because of his definitional aspirations I take him to be partly concerned with the meaning of ‘property’ and hence with a partly verbal disagreement. Many passages exemplify W2. For instance, he states his ‘exclusion thesis’ as follows: ‘the right to

15Penner 1996a; Penner 1997.

16Penner 1996a, 714. Cf. Penner 1996a, 767, 769, 778, 819–20.

19Penner 1997, 152 (bold type and initial capital letters omitted) and Penner 1996a, 742 (initial capital letters omitted), respectively. The emphasis on the word ‘property’ and the concept for which it stands is most evident in Penner 1996a, 767–99.

20Penner 1996a, 754.

property is a right to exclude others from things which is grounded by the interest we have in the use of things’.21 He adds: ‘On this formulation use serves as a justificatory role for the right, while exclusion is the formal essence of the right.’22 As to W3 he writes, ‘We can now reformulate the right of property, or the right of exclusive use, to take account of the element of alienability . . . ’23

This tripartite classification clarifies the nature of the disagreement. These three ways of formulating an alternative position are not equivalent, and they propose three different jurisprudential projects. W1 is a clear competitor with a bundle approach to property in a way that W2 and W3 are not. W1 is about property. According to W1 property consists of only one normative modality, whereas under my version of the bundle theory property consists of many normative modalities with respect to things. W2 presupposes that there is a unique right that one can point to as the right to property. Possible competitors with W2 are the claims that the right to property is the right to possess or the right to use. W3 is something of a compromise proposal compared to W2, for one could easily break down W3 into two rights, the right to exclude and the right to use. A possible competitor with W3 is the claim that the right to property is the set of the rights to exclude, possess, use, abandon, and destroy. As indicated below, my version of the bundle theory is somewhat, though not entirely, orthogonal to W2 and W3.

I concentrate on W1: that property is the right to exclude.24 If the disagreement between us is partly verbal, one could say that by ‘property’ he means ‘property1’ whereas I mean ‘property2 ’. This move might clarify any partly verbal aspect of our disagreement but it would not resolve it. Yet the main point of interest would still lie in a partly substantive disagreement between us, which has at least two different dimensions: analytical and metaphysical. I explain each in turn, point out how each is also partly verbal, and try to resolve some of the points in dispute. Only at the end do I tackle W2 and W3. What I say in this section clarifies some aspects of our dispute and resolves others.

To launch the investigation, let us confirm that W1 and my version of the bundle theory meet the test for the pertinent kind of disagreement over the term ‘property’. I give both a practical legal example and a more theoretical example. Both examples also illustrate Chalmers’s method of elimination.25 The method’s purpose is to give a sufficient condition for determining whether a dispute over S is wholly or partly verbal with respect to some term T. The method is first to bar use of the term T and then to try to find another sentence S0 over which two parties disagree partly substantively such that the disagreement over S0 is part of the disagreement over S.

Consider the following sentence S: ‘Crosswinds, a large, stately home suitable for use as a quadruplex or as a bed-and-breakfast, is the property of four sisters—Amy, Beth, Cathy, and Donna—as tenants in common’. Suppose the term T is ‘property’. Now consider the sentence S0 which does not contain the term T: ‘Amy has

24For brevity I use the short form ‘right to exclude’ rather than ‘right to exclude (or, sometimes, right of exclusive use)’.

25Chalmers 2011, 526–30.

the right to exclude others from setting foot on Crosswinds’. The acute lawyer will immediately pick out an ambiguity in S 0—namely whether Amy has a right to exclude all other persons from Crosswinds, which would be the case for rights in rem, or only a right to exclude some persons from Crosswinds. The uncautious lawyer might answer that of course Amy has a right to exclude everyone else. But the acute lawyer will answer that if Crosswinds is used as a quadruplex, then Amy cannot exclude her sister cotenants because of a legal rule in the United States that all cotenants are ‘entitled to possession of all parts of the land at all times’.26 If, instead, Crosswinds is used as a bed-and-breakfast, then it is a public accommodation in the United States and the cotenants may not exclude any potential customers on account of race, natural origin, religion, sexual orientation, disability, or marital status.27 Thus, a partly substantive disagreement exists over S0 such that the disagreement over S0 is part of the disagreement over S, for the extent of the right to exclude is part of the dispute over what property is. So the disagreement over S is partly verbal and partly substantive.

My second property example belongs to the realm of legal theory. Consider the following sentence S: ‘A salient feature of the definition of property is whether it is legally permissible to sell whatever items of property one owns.’ Suppose that the term T in S is ‘the definition of property’. Is S true? Suppose Abercrombie says yes and Fitch says no. We can use the method of elimination to determine whether the disagreement is wholly or partly verbal with respect to T by barring that term from the following sentence S0: ‘A woman has the legal right to sell land that she owns in fee simple absolute.’ Is S0 true? Again Abercrombie says yes and Fitch says no. Abercrombie follows most thinkers who write about the theory of property by saying, as to S0, that the woman most assuredly has the right to sell the land. Fitch follows Penner, who says that ‘property entails a right to give, but not to sell’.28 Penner adds that ‘the definition of property I have proposed is completely neutral on the question of whether one should be able to sell one’s property; that concerns the limit and extent of the justification of a very different interest, the interest in undertaking voluntary obligations by way of a particular kind of agreement, i.e., the bargain’.29 Consequently, a partly substantive disagreement over S0 is part of the disagreement over S, since the existence of the right to sell land held in fee simple absolute is part of the dispute over what property is. The disagreement over S is therefore partly verbal and partly substantive.

26 Stoebuck and Whitman 2000, 203 (case citations omitted). This rule sometimes leads to amusing classroom discussions about the impenetrability of matter at the macro level.

27The limits on whom the cotenants may exclude vary from state to state. Singer 1996.

28Penner 1996a, 746 (footnote omitted). My example follows Penner in using the term ‘right’ to sell rather than, as I would prefer, the legal ‘power’ to sell. The right/power distinction is a side issue in our dispute. Most legal systems contain both a right and a power to exclude. Later, when Penner refers to a right to give, that would involve a correlative duty to accept. That is odd because in most legal systems a donee can refuse the gift. It would be better to say that donor has a power to give, and the donee has both a liberty-right and a power to accept or refuse the gift.

29Penner 1996a, 746–7.

b) The analysis of property

With this spadework done, I turn to the first dimension in which Penner and I disagree in relation to W1—namely, the analysis of property. I maintain that property is a set of relations between the owner and other persons with respect to things, and that a good many normative modalities are involved in property besides the right to exclude. I regard this right as salient but consider other normative modalities, such as the owner’s rights to use and possess and her power to transfer, to be important, too. In addition, the owner has other claim-rights, liberty-rights, powers, and immunities as well as a duty not to use the thing in certain ways that harm others. Recently I gave reasons for preferring my view to a view like Penner’s.30 I remain unrepentant.

By contrast, Penner contends that the right to exclude is not merely the core of property but its ‘formal essence’.31 True, he makes room for the rights to use and to abandon. He allows the right holder to give the thing to someone else. But he makes some startling claims in mapping out what property or the right to property does not encompass. Chief among them is that his definition of property takes no position on ‘whether one should be able to sell one’s property’.32 Here Penner moves what is commonly regarded as a salient topic in the theory of property to the theory of contract.33 Moreover, in partial opposition to Honoré, Penner maintains that liability of property to execution and an owner’s duty not to use her property harmfully are not incidents of property.34 Finally, Penner’s explication of the right to exclude is itself somewhat unusual. He stresses the duty on all others (in the case of property rights in rem) ‘to exclude themselves’ from the owner’s property.35 It would, he writes, be ‘a serious misconception’ to understand the ‘right to exclude’ as a right or power on the part of an owner to physically boot others off her land or to order others off or even to put up a fence so as actually to exclude others.36 To a degree, these remarks are common sense. Others have duties not to interfere, and the law limits what an owner can do to keep others off her land. Yet to some scholars, Penner might seem not to give due weight to the owner’s claim-rights and liberty-rights, and her powers, to exclude interlopers. For instance, the owner can exercise her liberty-right to erect a fence provided that doing so violates no governmental or private restrictions. Again, if someone damages her land by repeatedly crossing over it, she can exercise her power to bring an action for trespass in order to obtain damages and an injunction.

Alas, resolving the substantive dimension of this disagreement regarding the analysis of property would require more ink that I am allowed to spill here. I would have to answer all objections he lodges against my view in the works under discussion.37 Perhaps not even Penner and I could sustain interest in such a fine mincing.

Nevertheless, deference to community usage might help to resolve the verbal aspect of our disagreement with respect to W1.38 Here the relevant linguistic community is all speakers of English who talk and write about property in a given legal system. These speakers include not only judges, lawyers, and law teachers but also homeowners and tenants, real estate agents, land-use experts, state condemnation authorities, licensors of copyrights and patents, and financiers of the purchase and leasing of land, office buildings, and aircraft. In the United States, the bundle approach to property dominates, and not just as a slogan.

Of course, Penner and others are free to make a proposal that is partly linguistic: that ‘property’ is the right to exclude. I doubt that the proposal will enjoy much support in the United States once members of the pertinent community learn that, so far as the legal theory of property goes, for Penner property does not include a power to sell, a liability to attachment in bankruptcy or to execution to satisfy a court judgment, a duty to refrain from certain harmful uses, a power to sue others for trespass or nuisance, or, apparently, an immunity against government expropriation for public use unless it pays the owner just compensation.39

His proposal, or some other, might jibe better with community usage in some other legal system, but it does not seem to work any better in England than it does in the United States. Boiling down the meaning of ‘property’ in English law to the right to exclude is closer to a linguistic recommendation than it is a faithful report on usage in British English within the relevant linguistic community, namely English judges, lawyers, law teachers, and others. For example, Gray and Gray’s treatise on English land law observes:

‘Property’ in land means no more and no less than what the state actually permits an individual to do with ‘his’ or ‘her’ land . . . . On this analysis, each individuated element of utility within the bundle of rights (or ‘bundle of sticks’) which comprises an estate or interest can itself be characterised as a species of ‘property’.40

Although this treatise notices the importance of the right to exclude, it also sees property as ‘a socially constructed concept’ that includes a bundle of limitations as well as a bundle of rights, and points out that the state can augment or curtail the bundle of rights.41 Judges, too, point out the partly offsetting ‘sticks’ in the bundle. ‘The [defendants’] liability is simply an incident of the ownership of the land which gives rise to it. The peaceful enjoyment of land involves the discharge of burdens which are attached to it as well as the enjoyment of its rights and privileges.’42

38This dispute could be explicitly verbal or implicitly verbal under a refinement introduced by Chalmers 2011, 525 n. 8.

39Penner 1996a, 746, 761–4, 815; US Constitution, amendment V.

40Gray and Gray 2009, 111 (footnote omitted). ‘[C]asual lay concepts of “ownership” [sometimes] dissolve into differently constituted aggregations or bundles of power exercisable over land.’ Gray and Gray 2009, 93.

41Gray and Gray 2009, 91, 102, 111.

42Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank 2004, 572 (per Lord Hope of Craighead), cited by Gray and Gray 2009, 92 n. 3. Here land is the thing with respect to which the owner and other persons have various relations.