7

Possession and Use

Arthur Ripstein*

My aim in this chapter is to examine the relation between possession and use in the concept of property.1 Many writers find it difficult to see how property could be of any interest or importance if it was not related in a fundamental way to an owner’s use of the property. At the same time, doctrinally speaking, the right to exclude is often said to be the fundamental or even the sole organizing norm of property law. In what follows, I will develop a conceptual argument for the priority of exclusion—which I will refer to by the term ‘possession’—over use. Possession, as I shall articulate it here, is the formal precondition of use, but does not depend upon the particularities or actuality of use. But I shall go further, and argue that the sense in which possession, and so use, both figures in the law and matters cannot be explained except by reference to the concept of exclusion. Rather than having the right to exclude others so that you may use your property, your property is useful to you because it is exclusively yours. The only interest in use that the law of property protects is specific to the owner and explicitly contrastive: it protects the owner’s interest in being the one to determine the use of the object, as against others. That is just to say it protects an interest in exclusive use.

Versions of the thesis which I will defend have been defended by others. In The Idea of Property in Law James Penner writes:

It is my contention that the law of property is driven by an analysis which takes the perspective of exclusion, rather than one which elaborates a right to use. In other words, in order to understand property, we must look to the way that the law contours the duties it imposes on people to exclude themselves from the property of others, rather than regarding the law as instituting a series of positive liberties or powers to use particular things.2

* I am grateful to Lisa Austin for exacting comments on an early draft, to participants in the workshop ‘Philosophical Foundations of Property Law’ for their comments and questions, and especially to James Penner and Henry Smith, both for including me in their conference and volume, and for their extremely helpful comments on the post-conference draft.

1I will say nothing here about intellectual property. Nor shall I even comment on whether it is usefully characterized as property at all, or whether any unification of property and intellectual property is to be sought. Instead, I will focus exclusively on property in land and chattels.

2Penner 1997, 71.

the owner because she is a human being capable of benefiting from control over resources, the second, autonomy-based account grants the power to the owner as a way of enabling her to exercise her own autonomy. Neither is capable of making sense of the priority of possession, and this inability, in turn, prevents either from making sense of a basic right to use. Both treat the generality of the right to exclude as a response to epistemic limitations; because non-users and non-agenda setters cannot typically know who is using the item in question, or the agenda user has set for it, a simple ‘keep out’ rule protects the use-based interest as effectively as possible. I will contend, however, that both accounts actually presuppose a more robust concept of possession. I will conclude with some more general remarks about the relation between rights and interests.

1. Possession

The most familiar doctrinal feature of property law (in tangibles) is the right to exclude. Despite its familiarity, it raises the question for many contemporary theories of property: to what end? There is plenty of controversy about the nature of rights in general, and property rights in particular. What is not controversial, however, is the thought that, once someone has a right to do something, the right holder is thereby permitted to exercise the right foolishly, imprudently, and, at least within limits, immorally. If you have a right to freedom of expression, you are allowed to say things that you should not say. And if you have a right to private property, you are allowed to exercise that right in stupid, pointless, and unhelpful ways. Although there is moral and occasionally legal controversy about whether you need to make your property available to another person to save his or her life, there is no controversy about whether you need to make your property available to someone who could put it to better use than you can. You do not. Utilitarian theories of property argue that in general, systems of private property increase overall welfare. They do not, and could not, argue that in every instance every exercise of property rights does so. Instead, they treat rights as generalizations which must be honoured because of the benefits generated by general conformity to them. Thus they must be respected even when they fail to provide the goods they are supposed to. I will argue that the only real alternative to this instrumental view is to suppose that rights have a different type of generality, which cannot be reduced to the sort of empirical generalization on which all overinclusive rationales must depend.

The structural features of the right to exclude are simple and familiar: outside of certain qualifications, an owner gets to decide what will happen with her property and, most fundamentally, gets to decide the terms on which anyone else may use that property for any purpose. There are, to be sure, various restrictions and qualifications imposed on the rights of owners by other areas of the law. So, for example, common carriers must take everyone on their vehicles or vessels, business establishments may not discriminate on the basis of race, and public officials may commandeer property in an emergency. These are all nonetheless exceptions,

restrictions, and qualifications on a structure that normally leaves the decision entirely to the owner. If you are not a common carrier, you get to decide who rides in your car or boat, and you are allowed to decide who comes into your home; no question of grounds even comes up. Nor may you ordinarily commandeer any other person’s property.

The right to exclude is not, on its face, a protection against harm or loss. Harmless trespasses against land are actionable, and although in common law jurisdictions trespasses against chattels ordinarily require that some damage be established, the threshold does not depend on any sort of interruption in the owner’s use of or plans for the object. And even with chattels, if no harm is suffered but the non-owner gains an advantage, the owner is entitled to recover damages which are measured by the defendant’s gain.4 The basic structure of the wrong consists in using something that belongs to somebody else.

The basic action-guiding norm of property reflects the constitutive role of possession: that norm speaks to non-owners and says ‘do not use or interfere with anything that is not yours’. It formulates this norm in distinctively secondpersonal terms: ‘is not yours’ rather than ‘belongs to owner [insert name here]’ precisely because the basic action-guiding norm does not require anyone to know about title; it only requires that people know that something does not belong to them. Henry Smith has noted this is an epistemically undemanding rule, which requires almost no information to apply; such information as it does require is autobiographical, and so typically available to each person. It is, at the same time, morally very demanding, as it requires people to abstain from the property of others pretty much no matter what, and so restricts many other things they might wish to do with it, including very worthwhile things. These familiar features can be explained in two ways. One attaches priority to the epistemic, and says that we make the morally demanding rule because it is easy to implement. The other view goes in the opposite direction: the morally demanding rule requires an epistemically easy implementation; our moral situation is not, in the first instance, a matter of ignorance.

But even putting it in these terms understates the significance of possession. It is trite law, though puzzling to some writers, that you can commit a trespass even if you are in no position to know who the owner is. If you take another’s coat, innocently mistaking it for your own, you have a full defence to any criminal charge, but still commit a trespass against chattels; if, through no fault of your own, you are confused about where your land ends and your neighbour’s begins you commit a trespass. In such cases, there may be a question about the seriousness of the wrong. But it is uncontroversial that you commit a legal wrong.

4 There is an ongoing controversy as to whether such damages are properly characterized as gain based, or rather that the measure of the damages is tied to the invasion of the right. I defend the version of the former position in Ripstein 2007; for a defence of the latter position, see Stevens 2007. The difference between our positions is not important to the question addressed here, which is just that damages can be awarded even if the owner suffers no actual harm or consequential loss.