almost entirely dissolves the disagreement between us, and otherwise it resolves the dispute in my favour.

4. Penner Redux: A Major Disagreement that is both Substantive and Conceptual

Penner is one of the few lawyer-philosophers to devote sustained attention to the nature of concepts. In a major article he separates a Classical view of concepts from a Criterial view.80 Under the Classical view, concepts are tied to a rigorous semantics. In a rigorous semantics, the word ‘property’ has a definite meaning if, and only if, one can give necessary and sufficient conditions for its application. In turn, the Classical concept of property must have a correspondingly definite extension: each item of property falls under the concept of property, and each item that is not property is outside its extension. Though Penner makes little mention of sets, evidently his précis of the Classical view of concepts rests on classical set theory. This section is concerned with Penner’s positions earlier labelled W1 and to a lesser extent W2 and W3. I clarify the nature of our conceptual disagreement and resolve it in favour of a tentative account of concepts that addresses their individuation and incomplete understanding. I also show that Wittgensteinian family-resemblance concepts favour my position over Penner’s.

Penner believes that what he calls the Classical concept of property does not tally at all well with bundle theories of property as he understands them. Bundle theories offered by Christman, Grey, Hoffmaster, Honoré, Waldron, and A. Weinrib are, despite their differences, all found wanting to a greater or lesser extent.81 They come up short because they leave indefinite the metes and bounds of the concept of property. I am in the dock with the others, though charitably Penner finds it more difficult to detect a fixed position in my book.82 I acknowledge, with thanks, his charity and caution. I agree with him, if on different grounds, that it is not possible to supply necessary and sufficient conditions for the concept of property.

Furthermore, Penner is right to be unsatisfied by the concept/conception distinction that Waldron borrows from Dworkin and employs in Waldron’s book on property. Penner seems to hold that the distinction just allows Waldron to avoid issues about which ‘things’ can be property.83 Reasons exist to think that Dworkin’s distinction, at least as drawn as late as 1977, suffers from considerable infirmities.84 It is, moreover, difficult to figure out how it is possible even in principle to distinguish concepts from conceptions. How can I tell, in writing this sentence, whether my thought involves the concept of property rather than

80Penner 1996a, 767–98. Penner 1997 replicates little of his earlier discussion, and talks more about the idea rather than the concept of property—e.g. at 1–3, 169–86.

81Penner 1996a, 770–9.

82Penner 1996a, 774–7. In 1990, I had no well-considered view on concepts.

83Penner 1996a, 778. Cf. Waldron 1988, 52 and n. 53; Dworkin 1978, 103, 134–6. Dworkin in turn seems to get the distinction from Rawls 1955, 3–4, 19, 24–30, 32; Rawls 1971, 5–11.

84Munzer and Nickel 1977, 1037–41.

some conception of that concept, or somehow both of them? For the moment I lay to one side whether Dworkin’s later work, in Law’s Empire and Justice for Hedgehogs, solves or sidesteps these problems.85

Penner turns to the Criterial view of concepts for a congenial analysis of the concept of property.86 This view, he says, rests largely ‘on Wittgenstein’s later writings on language and rule-following in the Philosophical Investigations’.87 As to the concept of property, the chief value of the Criterial view, he writes, is that ‘it allows us to outline a theory of terms on which the absence of Classical definition [through necessary and sufficient conditions] is not to be regarded as a sign that a term has a diminished, much less no, meaning’.88 The thrust of his argument is that the Criterial view helps to ‘explain the determinate character of concepts . . . while recognizing the real diversity of phenomena which, in a real diversity of circumstances, satisfy complex concepts underpinning terms like “property”’.89 Just as Wittgenstein’s notion of family resemblance arguably enables us to elucidate the concept of a game, so, Penner reasons, that notion arguably helps us to explain the concept of property—in terms not only of criteria but also of the circumstances in which the concept and the term for that concept are correctly applied.90 The concept of property and related concepts such as that of ownership are useful because, Penner holds, similarities illuminated by family resemblance give those concepts, within limits, a determinateness unblemished by rigidity.91 So the Criterial view, Penner suggests, explains why the concept of property has a unitary content whose essence is the right to exclude rather than dissolving into the composite fluidity of, he believes, a bundle theory.

4.1 Reservations: of Wittgenstein and Dworkin

A significant worry about Penner’s account of the Criterial view is his heavy reliance on Wittgenstein in arguing for W1. The relevant section of his article is headed ‘The Criterial View of Concepts’.92 Throughout that section he frequently refers to concepts generally and to particular concepts, such as those of property and games. He peppers these reflections with discussions of meaning, sense, Wittgenstein’s philosophy of language and rule following, Criterial semantics, the defeasibility of the correct use of terms and expressions, and internal relations of grammar.93 Penner’s heavy reliance on Wittgenstein’s notion of family resemblance, I think, undoes his project W1. Games may exhibit a family resemblance, but they do not have an essence. It is baffling how Penner can think that property has an essence if a family resemblance is in play.94

92Penner 1996a, 779.

93Penner 1996a, 779–98. Penner does not mention work on concepts done by cognitive scientists such as Fodor 1975 and Fodor 1983.

94Penner 1996a, 798–818.

It is important to get clear on two different though connected strands of inquiry: the theory of concepts and the theory of language. As brought out at the beginning of Section 2, concepts qua types are abstract objects whereas concepts qua tokens are mental representations. Concepts qua types are not conventional. But the relation between words and their meanings is conventional. These theories are no longer the sole domain of philosophers. Psychology, linguistics, and cognitive science have made many contributions of their own.

One way to connect these strands of inquiry is to clarify an issue about words and reference. Modifying Strawson, one can say that people can use certain words to refer.103 Take the word ‘dog’. People can use this word to refer to the set of all dogs. Differently, they can also use it to refer to the concept dog. The first use refers to the extension of the concept whereas the second refers to the concept itself. There are many natural languages. People can use the words ‘Hund’ and ‘chien’ to refer to all dogs or to the concept dog, and use the words ‘Eigentum’ and ‘propriété’ to refer to all items of property or to the concept property.

The options for explicating the concept of property are fewer once we reject the Classical view and the Criterial view. There remain Ronald Dworkin’s interpretive account of concepts and an account of the individuation of concepts and the incomplete understanding of them. I look first at Dworkin’s most recent work.

With Law’s Empire, Dworkin’s work took an interpretive turn; that turn included a chapter on interpretive concepts.104 A quarter-century later, in Justice for Hedgehogs, he returned to interpretation in earnest.105 The latter work devotes an entire chapter to conceptual interpretation and interpretive concepts.106 My exposition rests on his account in Justice for Hedgehogs as his final view, and I ignore minor differences between the two books.

Dworkin’s taxonomy recognizes criterial (small ‘c’) concepts, natural-kind concepts, and interpretive concepts. Although Dworkin holds that not all concepts have necessary and sufficient conditions for their application, he does not use the term ‘criterial concepts’ in the same way as Penner. Penner regards Criterial (capital ‘C’) concepts as definite enough, while Dworkin admits of both precise criterial concepts, e.g. of an equilateral triangle, and vague criterial concepts, e.g. of baldness.107 Dworkin pays little attention to natural-kind concepts, such as those of a chemical compound or an animal species; these seem almost entirely irrelevant

103 Strawson 1950. Strawson was concerned, not with all words or even all nouns, but with referring expressions such as demonstrative pronouns, proper names, and phrases beginning with ‘the’ followed by a noun or noun phrase.

104 Dworkin 1986, 45–86.

106Dworkin 2011, 157–88. The concept/conception distinction pops up from time to time, e.g. at 161, but it is on the fringe of the inquiry. Some literature on concepts and conceptions in the philosophy of mind distinguishes between having a concept and mastering it. E.g. Villanueva 1998, 149–96. Dworkin does not cite this literature and it may not be relevant to his project. It may, however, be pertinent to the incomplete understanding of concepts, which I consider later in this section.

107Dworkin 2011, 158–9.

to his project.108 His attention centres on interpretive concepts, such as the concepts we find in morality, politics, and law, including the concept of property.109 A concept is interpretive if we (1) ‘share [it] in spite of not agreeing about a decisive test’, (2) regard the best way of understanding it to be justifying its operation in our shared value-practices, and (3) use the concept ‘as interpreting the practices in which [it] figure[s]’.110

Property counts as an interpretive concept under Dworkin’s account of interpretation. It would be inappropriate to list him as a supporter of a bundle theory of property, because though he writes in this way he does not mention, let alone consider, any alternative to a bundle theory.111 Still, one can deploy his view of interpretive concepts in favour of a bundle theory. The way that the concept of property functions and is understood in contemporary legal systems outstrips the right to exclude with a correlative duty not to trespass on or harm the owner’s land. Lawyers today recognize that zoning and covenants, land transfer and finance, defence against government intrusion, appropriate use of eminent domain, and many other practice areas are within the repertoire of property lawyers. Intellectual property is a booming area. One could hardly make sense of these features of legal systems and law practice without recourse to powers to transfer, lease and licence, immunities against expropriation without compensation, and a vast array of other rights, powers, liberty-rights, immunities, and disabilities. Even if disagreement exists on the exact contours of property, conceptual interpretation helps in understanding these disagreements while pointing out the huge domain of property on which our practices and justifications for inclusion agree.

This argument should not be thought of in terms of linguistic deference. Deference of that sort might help to reduce, if not dissolve, the partly verbal disagreement between Penner and me treated in Section 1. In this conceptual context, however, the intellectual work is done by justificatory arguments for interpreting our practices regarding property and the concept of property along the lines of my version of the bundle theory. Even if Penner were minded to appeal to Dworkin on interpretive concepts, it would aid Penner hardly at all. Dworkin’s interpretive concepts and the legal and social practices they illuminate are far richer than Penner’s insistence on the right to exclude.

At the same time, I am not comfortable with relying on Dworkin’s account of conceptual interpretation and interpretive concepts in responding to Penner. First, I do not accept Dworkin’s claim that conceptual ‘interpretation is interpretive all the way down’, unless of course that claim is tautological.112 He is willing to travel down Friedrichstrasse farther than I am. Second, I do not accept the ‘overall theme

108Dworkin 2011, 159–60.

109Dworkin 2011, 160–3, 166–70, 180–8, 327–415. He mentions property on 374–5, where he

seems to assume that some version of the bundle theory is sound.

110Dworkin 2011, 160, 162, 164.

111Dworkin 2011, 375. At 374–5 he is more concerned with libertarian versus non-libertarian concepts of property.

112Dworkin 2011, 162.