- •Contents
- •Table of Cases
- •List of Contributors
- •Introduction
- •1. Bottom-Up Theories
- •2. The Humean Approach
- •1. Introduction
- •2. The Moral Right to Labour Productively
- •2.1 The intellectual context for Lockean rights
- •2.2. Labour as a moral right
- •3. Property Acquisition in Labour Theory
- •3.1 Extending labour from the person to things
- •3.2 The social character of productive appropriation
- •3.3 Productive use as a limit on labour
- •3.4 The communicative function of productive labour
- •4. Control Rights in Labour Theory
- •5. Accession in Labour Theory
- •6. Lost Opportunities to Capture in Doctrine
- •7. Acquisition in Doctrine
- •7.1 The basic test for capture
- •7.2 Constructive capture
- •7.3 Multiple proprietary claims
- •8. Accession Policy and Ratione Soli Doctrine
- •9. On the Relation between Legal Property and Moral Rights to Labour
- •10. Conclusion
- •3: Property and Necessity
- •1. Some Conceptual Preliminaries
- •2. Winstanley’s Challenge
- •3. Grotius on Property and Necessity
- •4. Three Important Objections
- •5. Saving Property and Public Necessity
- •6. Is the Right of Necessity a Property Right?
- •4: Private Property and Public Welfare
- •1. The Fifth Amendment Paradox
- •2. Why Acquisition?
- •3.1 Physical possession
- •3.3 Exchange
- •4. Property in Civil Society
- •4.1 The origin of welfare entitlements
- •4.2 Civil society as a bifurcated entity
- •5. Property in the Political Community
- •5.1 Property in the totalitarian state
- •5.2 Property in the dialogical state
- •6. Conclusion
- •5: Average Reciprocity of Advantage
- •1. Introduction
- •2. Background
- •2.1 Judicial opinions
- •2.2 Academic commentators
- •3. Sources of Average Reciprocity of Advantage
- •4. The Limits of ‘In-Kind’ Compensation
- •4.1 General reciprocity
- •4.2 Probabilistic compensation
- •4.3 Basic structural problems
- •5. Reciprocity and Respect
- •5.1 Accepting the conclusion
- •5.2 Rejecting the premisses
- •5.3 Partial, ‘objective’ compensation
- •6. Conclusion
- •1. Introduction
- •2. Between Promise and Detachment
- •2.1 The moral principle
- •2.2 The value of LPA
- •3. Legal Enforcement
- •3.1. Encouraging pre-contractual Investment
- •3.2 Building up trust: the role of LPA
- •4. Proprietary Estoppel
- •4.1 Varieties of PE
- •a) Bargain
- •b) Gifts
- •4.2 The remedy
- •5. Conclusion
- •7: Possession and Use
- •1. Possession
- •2. The Priority of Exclusion
- •3. Bringing Actual Use Back In
- •4. Conclusion
- •8: Possession and the Distractions of Philosophy
- •1. Introduction: The Puzzle
- •3. Possession and Title
- •4. The Right of Possession and its Omnilateral Structure
- •5. Possession and the Incidents of Ownership
- •6. A Principled Practice of Property?
- •7. Conclusion
- •9: The Relativity of Title and Causa Possessionis
- •2. Privity, Estoppel, and Rights to Possess outside of Ownership
- •2.1 A public law problem?
- •2.2 Privity: the missing link between property and person
- •2.3 Let the chips fall where they may
- •3. Conclusion
- •1. Introduction
- •2. Setting the Limits of Property Rights
- •2.1 Where A has an undoubted property right
- •a) The ‘right to exclude’
- •b) The ‘right to use’
- •i. Chattels
- •ii. Land
- •c) Conclusion
- •2.2 Determining if B’s right counts as a property right
- •a) Physical things
- •b) Non-physical things
- •c) Equitable property rights
- •3. Conclusion
- •11: On the Very Idea of Transmissible Rights
- •1. Title and Succession
- •2. The Argument against Transfer or Transmissibility Stated: The Hohfeldian3 Individuation Argument
- •3. Why the Hohfeldian Individuation Argument is Wrong
- •4. Justifying Transmissible Rights
- •4.1 The power to authorize what would otherwise be a battery
- •4.2 The right to immediate, exclusive possession of property
- •4.3 The power to license and to give property away
- •4.4 The power to sell or transfer pursuant to an agreement
- •4.5 The liability to execution
- •5. A Last Word on Conventions and Social Contexts
- •12: Psychologies of Property (and Why Property is not a Hawk/Dove Game)
- •1. The Inside Perspective
- •1.1 Identity formation
- •1.2 Identity fashioning
- •1.3 Refuge
- •1.4 Empowerment
- •1.5. Generosity
- •1.6 Economic incentives
- •1.7 An admonitory postscript
- •2. The Outside Perspective
- •2.1. The picture from in rem
- •2.2 Hawks and Doves
- •2.3 The virtues of non-ownership
- •13: Property and Disagreement
- •1. Disagreements Substantive and Verbal
- •1.1 Verbal disagreements
- •1.2 Disagreement that is partly substantive and partly verbal
- •a) Clarifying the disagreement
- •b) The analysis of property
- •c) The metaphysics of property
- •d) What about W2 and W3?
- •3. A Minor Disagreement that is both Substantive and Conceptual
- •4. Penner Redux: A Major Disagreement that is both Substantive and Conceptual
- •4.1 Reservations: of Wittgenstein and Dworkin
- •4.2 Individuation and incomplete understanding
- •5. The Nature of Property
- •5.2 Smith and the architecture of property
- •6. Conclusion
- •Appendix
- •14: Emergent Property
- •1. Intensions and Conceptualism in Property Law
- •2. Formalism versus Contextualism
- •3. Functionalism
- •4. Holism and Emergence
- •5. An Application to in Rem Rights and Duties
- •6. Conclusion
- •References
- •Index
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in hot pursuit create close cases for the capture doctrine, these close cases do not undermine the labour-based approach to capture generally.
7.3 Multiple proprietary claims
Ordinarily, black-letter doctrine holds that possession rights should be assigned in all-or-nothing fashion. The custom relied on in Ghen and other whaling cases, however, entitled whale finders to reasonable finder’s fees. This custom makes sense in context. Because it is time and effort intensive to appropriate a whale into human commerce, it is justifiable to give two individuals rewards for doing so—the whaler, and the finder. The law of sunken ships and treasure provides another example. The legal system secures owners’ control and future use by returning stolen or lost articles to owners; this general principle applies to sunken goods when it is feasible to find the owner of a sunken wreck or treasure. In such cases, finders and recoverers deserve restitution but not possession or ownership. When true owners are unavailable, however, productive labour theory recommends that triers of fact follow a series of presumptions. The first presumption is to award boats or treasures to the parties who actually recover—i.e. capture—them. First finders override the claims of actual recoverers only if and when they mark off their claims and then proceed in good faith and with reasonable diligence to recover the boats.139 Yet both the first finder and the first recoverer contribute in different ways to the recovery of sunken goods. In the abstract, there is no way of saying whether the captain who finds a wreck or the one who salvages it successfully contributes more to the reintegration of the wreck into human commerce and use. In some circumstances, it may be reasonable to award the finder property and order restitution to the salvor; in others, the opposite assignments may be reasonable.
Here, productive labour theory justifies and encourages the same style of indirect-consequentialist reasoning as is used in the progression from actual capture to constructive capture. The law begins with a ‘rule’-level presumption in favour of single acquisition and ownership, like the presumption in favour of a bright-line actual capture requirement. As the preference for actual capture is rebuttable, however, the one-owner presumption is also rebuttable, when the asset is unlikely to be discovered without rewarding different contributions to the discovery and recovery of the asset.140
8. Accession Policy and Ratione Soli Doctrine
Again, however, acquisition doctrine operates as something of a backstop, in unowned areas like beaches, highways, and oceans. Quite often, the most effective way to enlarge citizens’ free exercise of their labour rights is to give them legal rights
139See Treasure Salvors, Inc. v Unidentified Wrecked & Abandoned Sailing Vessel 1981; Brady v Steamship African Queen 1960; Eads v Brazelton 1861.
140I thank Daphna Lewinsohn-Zamir for encouraging me to discuss this issue more fully.
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Eric R. Claeys |
that operate with little express reliance on the underlying moral rights. Chancellor Kent certainly appreciated as much. Although he justified civil property rights on natural rights grounds in his Commentaries, he acknowledged readily that acquisition had ‘become almost extinct’, and ‘made to yield to the stronger claims of order and tranquility’ associated with the alienation of property.141 What Kent said of alienation is also true of accession. In most cases, the ratione soli rule and other related accession doctrines secure labour-based property rights more effectively than capture rules do. Productive labour theory can explain, just as well as other theories of property, why accession ‘dominates first possession’ in practice.142
Consider Fisher v Steward, the beehive case discussed in the Introduction. Fisher and several associates had found the beehive while trespassing on Steward’s land, Steward had appropriated the hive, and the New Hampshire supreme court held that Steward’s appropriation and possession were lawful. Although the court rejected the claim by Fisher et al. that their ‘labor and skill’ entitled them to the hive,143 in so doing the court did not necessarily reject labour theory. It takes four separate practical judgments before it can be said that labour-based moral rights justify the positive-law holding in Fisher, and not all of these judgments are uncontroversial. Nevertheless, if a public official consulted simple and obvious observations about how people use land, trees, and bees, he might reasonably conclude that Fisher’s holding represents a reasonable way to secure in law property rights grounded in the moral right to labour. The first move is the move explained in Section 4: if Steward ‘owns’ his land, the best way to promote labour is to endow him as ‘owner’ not merely with a usufruct but rather with broad legal rights of exclusive control, use, and disposition over his land. Each of the next three judgments relates to a separate application of the accession policies discussed in Section 5.
Accession doctrines differ sharply in application, depending on how the proposed ‘principal’ and ‘accessory’ resources in question relate to one another. Legally, the most obvious difference is this: some accession-related doctrines apply as brightline rules (say, the riparian doctrine of accretion144), while others apply as general standards varying in application to the totality of particular circumstances (say, the doctrines regulating the merger (accessio) or substantial transformation (specificatio) of goods145). To reconcile these and many other accession-related doctrines, however, leading early Anglo-American legal authorities justified accession in the same general terms identified in Section 5. According to Blackstone, accession applies when a ‘given corporeal substance receive[s] afterwards an accession by natural or by artificial means, as by the growth of vegetables [or] the pregnancy of animals’, but not in cases in which ‘the thing itself . . . [is] changed into a different species’.146 Blackstone stresses the perception-related aspect of accession doctrine. Entity B deserves to be treated as a legal accessory to entity A if it seems an outgrowth of or extension from A’s ‘corporeal substance’, but not if it seems
141 |
Kent 1826, 2: 290, 255–76. |
142 |
Merrill 2010, 460. |
143 |
Fisher v Steward 1804, 60–1. |
144 |
See Nebraska v Iowa 1892. |
145 |
See e.g. Wetherbee v Green 1871. |
|
146 Blackstone 1765, 2: 404 (emphasis added). |
Productive Use in Acquisition, Accession, and Labour Theory |
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‘a different species’. Kent explains accession in similar terms, but he also exempts cases in which B’s poem is written on A’s parchment, on the ground that the written manuscript belongs to the ‘author[, who] has a higher, and, consequently, the principal interest in’ it.147 For Kent, the owner of entity A deserves to own entity B as an accessory if his labour to create A creates a normative interest in B; in this situation, accession focuses on the previous and likely future uses of A and B. In a similar vein, one early accession case acknowledged that it is ‘very difficult to ascertain any principle of uniform and universal application, on which the [standard] is itself founded’, but then encouraged the law to identify the owner with ‘the principal interest’ in the asset or assets in question.148
To be sure, these legal tests are circular. One asks whether the proposed accessory is perceived so closely with the proposed principal asset that the former should be deemed an accessory to the latter; the other asks whether the former seems likely enough to be used beneficially as a package with the latter that it ought to be deemed a legal accessory to the latter. Notwithstanding this circularity, however, the tests provide enough guidance to focus legal inquiries into the issues needed to settle the Fisher case.
The first application runs from Steward’s land to the trees on his land. Although there may not be perfect or irrefutable empirical information, it seems safe to rely on armchair empirics to conclude that trees are accessories to land. In doctrine, trees are deemed accessories because they are classified as fixtures and fixtures are automatically accessories.149 To be sure, this per se classification could be challenged. In human perception, trees seem less intertwined with land than soil seems. At the same time, because trees are rooted in ground, the law does no violence to human perception if it classifies a tree as part of the same res or ‘entity’ as land. In addition, it seems practically certain that trees and lands are used more productively if treated as a combined entity. If Fisher and friends could have appropriated trees on Steward’s land, they would have deserved and received implied easements of access to tend and enjoy their trees. Such easements would require Steward and similarly situated landowners to monitor their boundaries. Such monitoring would make it more difficult for owners to enjoy their land to the fullest. In addition, a landowner may reasonably be expected to account for trees and how well they fit in with his plans for the long-range management of his land. No surprise, then, that, in the Fisher case, Fisher and the other plaintiffs did not even contest Steward’s ownership of the tree.150
So next, in a case like Fisher, the conscientious judge must determine whether Steward’s exclusive control over the land and tree entitle him to corresponding control over the beehive. Doctrinally, that question presents another possible extension of the fixture doctrine. The answers to the two questions accession policy
147 Kent 1826, 2: 296 (emphasis added). Here, Kent noted Roman law to the contrary, pronounced it ‘absurd’, and recommended that readers follow French principles in conformity with the principles explained in text.
148Lampton’s Executors v Preston’s Executors 1829, 459.
149See e.g. Brown 1975, ss. 16.1–2, pp. 514–22; Kent 1826, 2: 295.
150See Fisher v Steward 1804, 60.
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makes relevant are not settled as decisively in relation to the beehive as they are in relation to the trees. That said, in Fisher, the court was almost certainly correct to conclude that the hive was an accessory to the land-and-tree. The court reasoned that it ‘is much more consonant to our ideas of property to say, that the bees and honey in the [land owner’s] trees belong to him in the same manner and for the same reason as all mines and minerals belong to the owner of the soil’. Since landowners are entitled to exclusive control over their land, and fixture doctrine entitles them to claim mines and minerals as accessories to their land, it is reasonable to presume that owners deserve ownership over lesser articles like beehives on the same grounds. The court then turned to the policies that might reverse the presumption created by the mine and mineral analogies: ‘Will it be pretended that plaintiffs thereby acquired a right to the tree? If they acquired a title to the honey, they must necessarily have a right to take it away, to cut down the tree, to pass over the defendant’s land for the purpose, &c’. In other words, the court forecast the consequences likely to follow if the hive (or the hive and tree together) were treated as an entity separate from the land. As the court understood, if the hive were a separate object of property, hive owners would be entitled to implied easements to traverse owners’ land and service their hives—like the easements non-owners enjoy in rural communities to graze livestock or gather sticks.151 Correctly, the court worried that such an easement would ‘interfere[] with the rights and property clearly vested in defendant; [such an easement] is inconsistent with “the defendant’s property; it lessens its value at least”’.152 Behind the veil of ignorance, the ‘interference’ created by rights of access are much less justifiable for beehives than they are for grazing grass or sticks. The latter are far more urgent than the former to preserve the lives of inhabitants and their livestock.
The last extension runs from the land-and-tree-and-hive to the bees. Doctrinally, this extension involves not the fixture rule but the ratione soli rule. Anglo-American property law has long distinguished domitae naturae from ferae naturae, domesticated and wild species of animals. (Note that these presumptions are usually applied species by species, consistent with productive labour theory’s indirect-consequen- tialist tendencies.) The ratione soli rule parallels the fixture rule; it assigns ownership over domesticated animals to the owner of the land in relation to which the animals have an animus revertendi, a habit of returning because their domicile is located on that land. By contrast, for wild animals, property law entitles landowners only to the exclusive opportunities to catch such animals on their own lots. If a hunter manages to lure a duck off a landowner’s land before catching it (as Keeble did to ducks on Hickeringill’s land), the hunter captures the animal.153
Here, too, none of these rules are strictly required by labour theory or the information and judgment that theory makes relevant. Nor do these sources require that or settle whether accession policies should be applied animal by animal, species by species, or using Blackstone’s two-track distinction between domestication and
151 |
Blackstone 1765, 2: 35. |
152 Fisher v Steward 1804, 61. |
153 |
See Brown 1975, s. 2.4, p. 17. |
|