1. Contrast the economic analysis of law, for which "the true grounds of legal decision are concealed rather than illuminated by the characteristic rhetoric of opinions." Richard Posner, The Economic Analysis of Law, 4th ed. (Boston: Little, Brown, 1992), 23.

2. The prime, contemporary example of such an approach seeks to unify the common law under the goal of efficient resource allocation; see Posner, Economic Analysis of Law. There are, however, other examples. Margaret Radin views property law as a means for realizing a certain vision of human flourishing in community; see "Property and Personhood," 34 Stan. L. Rev. 957 (1982); "Market-Inalienability," 100 Harv. L. Rev. 1849 (1987); "The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings," 88 Col. L. Rev. 1667, 1687-1696 (1988). Frank Michelman reinterprets aspects of takings jurisprudence from the standpoints of welfare maximization and of Rawlsian distributive justice; see "Property, Utility, and Fairness: Comments on the Ethical Foundations of 'Just Compensation' Law," 80 Harv. L. Rev. 1165 (1967).

3. See, e.g., George Priest, "The Common Law Process and the Selection of Efficient Rules," 6 J. Leg. Stud. 65 (1077); John Goodman, "An Economic Theory of the Evolution of the Common Law," 7 J. Leg. Stud. 393 (1978).

4. Richard Posner, "Utilitarianism, Economics, and Legal Theory," 8 J. Leg. Stud. 191 (1980); Richard Posner, "The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication," 8 Hofstra L. Rev. 487 (1979).

5. Joseph Singer, "The Reliance Interest in Property," 40 Stan. L. Rev. 611, 623-657 (1988); Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89 Harv. L. Rev. 1685, 1728-1731 (1976).

6. This point will no doubt seem overstated to some. One might argue that from the absence of a unified theory of law it does not follow that there is nothing but the clash of undiscussable preference; for even in a world of contradictory principles, judges are obliged publicly to justify their decisions in terms of some principle as well as to give reasons for their choice of principle, and to that extent their decisions will not be simply arbitrary; see Frank Michelman, "Justification (and Justifiability) of Law in a Contradictory World," in J. R. Pennock and J. W. Chapman, eds., Nomos, vol. 28: Justification (New York: New York University Press, 1986), 85. I wonder, however, whether this refuge from a "contradictory world" might be illusory. Leave aside the point that the principle and reasons appealed to may be saluted by only part of the "community," which part will be unable to persuade those whose allegiance is to the contrary principle. To work, the argument must show that the judge is obligated to justify his decision with reference to one of a number of contradictory paradigms and to give reasons for his choice of paradigm. But if the obligation to give reasoned judgments itself belongs to a particular ethical paradigm, then in a world of contradictory paradigms, that obligation cannot be set up as a privileged moral fact somehow above the fray. Rather, it becomes itself something contestable and hence no longer valid as an obligation. Of course, if the judge decides without reasons, his activity will not be recognized as an example of judging by those involved in the practice of law; his decisions will be criticized, showing that there is an internal norm requiring principled decision making. But this phenomenon requires a theoretical account, and it seems that only a unified theory of law offers a satisfactory one, since only such a theory renders the idea of obligation coherent. Once one accepts the premise of inevitable contradiction, the conclusion is inescapable that the practice of criticizing judgments in light of internal norms involves a mass self-delusion—a bad faith flight from the reality of lawless freedom. Is not the comforting assurance that there exists a middle ground between a unified theory and nihilism precisely such a flight?

7. Our approach thus differs from that offered in Ernest Weinrib, "Right and Advantage in Private Law," 10 Cardozo L. Rev. 1283 (1989), and in Peter Benson, "Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory," 10 Candozo L. Rev. 1077 (1989), both of which seek the unifying principle of private law in an undifferentiated normative foundation, namely, the abstract universality of personhood.

8. Stephen Munzer has recently offered what he too advances as a pluralist theory of property; see A Theory of Property (Cambridge: Cambridge University Press, 1990). However, the Hegelian theory I am putting forward is pluralist in a way different from Munzer's. Let ns first distinguish between a pluralist and an eclectic theory. A pluralist theory of property integrates different foundational principles within a single structure that coherently limits the scope of each principle and prescribes methods for resolving all conflicts. The constituent principles are in one sense "reduced" in that within the whole they are no longer foundational or absolute; but in another important sense they are not reduced, because they retain within limits an independent jurisdiction; they are not subsumed under a more comprehensive principle (a federalist constitution is a good analogy). An eclectic theory combines different foundational principles in a way that leaves each as foundational, so that conflict resolutions appear as compromises. Since Munzer admits the possibility of insoluble conflicts between his principles, and since he would resolve others by intuition (see id., chap. 11), his theory is ultimately eclectic rather than pluralist. Second, the theory we propose is in a sense more inclusive than Munzer's because it incorporates both distributive and nondistributive justifications of property, whereas Munzer provides only different criteria for just distributions —namely, labor desert, utility, and equality. Because it cannot account for a property right that is independent of distributive justice, Munzer's theory of property, whatever one may think of its prescriptive force, does not square well with common-law practice.

9. See H. L. A. Hart, "Positivism and the Separation of Law and Morals," 71 Harv. L. Rev. 593, 594-600 (1958).

10. Ronald Dworkin, Law's Empire (Cambridge: Belknap Press, 1986), 68-76; cf. Alasdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1984), 204-225; Hans-Georg Gadamer, Truth and Method (New York: Crossroad, 1985), 245-274.

11. For a sustained argument that normative validity can be ascribed only to contents generated from the serf-determination of freedom, see Richard Dien Winfield, Reason and Justice (Albany: State University of New York Press, 1988), 118-155.

12. See G. W. F. Hegel, Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford University Press, 1977), 52-57; see also The Logic of Hegel, trans. W. Wallace (Oxford: Oxford University Press, 1892), pars. 79-82.

13. Hegel's Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967). Numbers in the text refer to paragraph numbers of this work. The letter "A" after a number refers to the addition to the paragraph consisting of lecture notes taken by Hegel's students and included by Knox in his edition of the Philosophy of Right; the letter "R" after a number refers to Hegel's own remark to the paragraph.

14. For a clear statement of this position, see Thomas Holland, The Elements of Jurisprudence, 11th ed. (Oxford: Clarendon Press, 1910), 1-13.

15. Rudolf Von Jhering, "In the Heaven of Legal Concepts,' in Morris Cohen and Felix Cohen, eds., Readings in Jurisprudence and Legal Philosophy (New York: Prentice-Hall, 1951), 678-689.

16. Southern Pacifc Co. v. Jensen, 244 U.S. 205, 222 (1917).

17. Holland, Elements of Jurisprudence, 80: "Jurisprudence is concerned not so much with the purposes which Law subserves, as the means by which it subserves them." The law's divorce from purpose is also an admitted feature of the formalism recently elaborated by Weinrib. For Weinrib, law consists in the "articulations of a coherent justificatory structure," a structure constituted by one of the forms (corrective or distributive) of justice; see "Legal Formalism: On the Immanent Rationality of Law," 97 Yale L. J. 949, 969 (1988). Thus a doctrine (like loss spreading) justified in terms of distributive justice cannot be part of the law enforced in an institutional setting whose intelligibility rests on corrective justice. Since the criterion of law (justificatory coherence) is neutral with respect to substantive justifications in terms of purposes, Weinrib must say that "the only function of the law of torts is to be the law of torts." See "The Insurance Justification and Private Law," 14 J. Leg. Stud. 681, 686 (1985).

18. See R. E. Megarry and H. W. R. Wade, The Law of Real Property, 5th ed. (Agincourt, Ont.: Carswell, 1984), 67-70. A fee simple embraces all the incidents of ownership (e.g., the right to possess, enjoy, alienate) atemporally. It is thus the practical equivalent of absolute ownership. A defeasible fee simple is one that can be defeated on the happening of some event specified by the grantor, e.g., Black-acre to John for as long as he remains married to Jane.

19. Heath v. Lewis, 3 De G. M. & G. 954, 956, 43 E.R. 374, 375 (1853), per Knight Bruce, L.J.

20. Thus animals are purposive, but because they standardly do not create in terms of purposes, they are not a source of rationality.

21. The formerly rigid distinction between the concepts of lease and contract (as a result of which a landlord had no duty to mitigate his damages if a tenant abandoned the leased premises and lost all further claims against the tenant if he did mitigate) is another example of this form of conceptualism; see John Hicks, "The Contractual Nature of Real Property Leases," 24 Baylor L. Rev. 443 (1972); Douglas Stollery, "The Lease as Contract," 19 Alberta L. Rev. 234 (1981).

22. This outcome impels legal thought to distinguish between "law in books" and "law in action"; and it leads to a conception of law as regularities in judicial behavior on the basis of which one may predict the outcome of litigation; see O. W. Holmes, "The Path of the Law," 10 Harv. L. Rev. 457 (1897) Inasmuch as its general theory of law as behavioral regularity presupposes the downfall of a specific conception of law as norm, "realistic" jurisprudence lives entirely within the shadow of the formalism it opposes.

23. See Felix Cohen, "Transcendental Nonsense and the Functional Approach," 35 Col. L. Rev. 809, 821-834 (1935); Rudolf Von Jhering, Law as a Means to an End, trans. Isaac Husik (Boston: Boston Book Co., 1913), 325-347.

24. This is now the conventional wisdom about property; see John Cribbet and Crowin Johnson, Principles of the Law of Property, 3d ed. (Westbury, N.Y.: Foundation Press, 1989), 5: "Occasionally in your reading of cases, you will find a court saying, "We cannot grant the relief requested by the plaintiff because no property interest is involved. . . .' Is not this reasoning in reverse? If the court grants the protection, it has created a species of property. . . . No particular harm is done by the legal formula set forth above as long as you realize that property is not a mystical entity established by some fiat outside the framework of the law." See also Arnold Weinrib, "Information and Property," 38 Univ. Toronto L. J. 117, 120-122 (1988); Singer, "The Reliance Interest," 637-641.

25. See Joseph Singer and Jack Beermann, "The Social Origins of Property," 6 Can. J. Law and Jurisprudence 217, 241-248 (1993). For the bundle of rights conception of property, see Wesley Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," 23 Yale L. J. 16, 24 (1913); see also Felix Cohen, "Dialogue on Private Property," 9 Rutgers L. Rev. 357, 373-374 (1954); Tony Honoré, Making Law Bind: Essays Legal and Philosophical (Oxford: Clarendon Press, 1987), 165-179; Thomas Grey, "The Disintegration of Property," in J. R. Pennock and J. W. Chapman, eds., Nomos, vol. 22: Property (New York: New York University Press, 1980), 69-73.

26. Of course, authoritative balancing is less reliable than free market transactions, so that efficiency supports "property" when such transactions are feasible. However, this means that property is a variable conclusion of a calculus as to the relative efficiency in the circumstances of market and authoritative reallocations; see Posner, Economic Analysis of Law, 49-55.

27. See Grey, "The Disintegration of Property," 69.

28. See Cohen, "Dialogue on Private Property," 380-381.

29. See Susan French, "Toward a Modern Law of Servitudes: Reweaving the Ancient Strands," 55 S. Cal. L. Rev. 1261 (1982); Susan French, "Servitudes Reform and the New Restatement of Property: Creation Doctrines and Structural Simplification," 73 Cornell L. Rev. 928 (1988); Uriel Reichman, "Toward a Unified Concept of Servitudes," 55 S. Cal. L. Rev. 1177 (1982).

30. G. W. F. Hegel, Vorlesungen über Rechtsphilosophie 1818-1831, ed. K-H. Hting (Stuttgart-Bad Cannstatt: Frommann-Holzboog, 1974), IV, 172.

31. On the principle of logical consistency as a way of moving from right-claims to valid (because mutually recognized) rights, see Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: University of Chicago Press, 1982), 51-55.

32. Contrast the approaches of Margaret Jane Radin and Jeremy Waldron, on the one hand, and Peter Benson, on the other. Radin begins an account of property from an advanced conception of moral personality as embracing concrete projects, thereby rendering invisible the system of property law hazed on abstract personality; see "Property and Personhood," 34 Stan. L. Rev. 957 (1982). Likewise Waldron interprets Hegel as justifying property "as something everyone needs in order to develop his freedom and individuality," ignoring Hegel's claim that abstract right prescinds from all considerations of welfare; see Right to Private Property (Oxford: Clarendon Press, 1988), 351. The idea ora human good for which property might be needed is not introduced until the section on "Morality"; see Philosophy of Right, par. 128. Since Waldron conflates the paradigms of abstract right and morality, he has to criticize Hegel for incoherently connecting a human need theory of property with a right to things specifically acquired by acts of possession; see id., 386-389 (how these two theories connect is precisely the burden of this study). If Radin and Waldron fail to see abstract right, Benson sees nothing else. In failing to move beyond the paradigm ruled by abstract personality, Benson suppresses the doctrines of contract law embodying a right of intention; see "Hegel and Contemporary Contract Theory," 1147-1196.

33. See, e.g., R. v. Stewart, [1988] 1 S.C.R. 963; International News Service v. Associated Press, 248 U.S. 215, 248-267 (1918), per Brandeis, J.

34. See INS v. AP, 238, per Pitney, J.; Krouse v. Chrysler Canada Ltd., 25 D.L.R. (3d) 49, 59-62 (Ont. H.C. 1972); Exchange Telegraph Co. Ltd. v. Howard and Manchester Press Agency Ltd., 22 T.L.R. 375 (1906), per Buckley, J.: "The knowledge of a fact which is unknown to many people may be the property of a person in that others will pay the person who knows it for the information as to that fact."

35. An entailed estate passes to the lineal heir automatically; it cannot be freely alienated in a will. Fines and recoveries (their differences are unimportant here) were collusive procedures whereby a tenant in tail, with the acquiescence of the court, offered no defense to a stranger's suit for the land, so that the stranger took the land free of the entail. The stranger then either paid the purchase price or conveyed the land, now unencumbered, back to the tenant. The common-law rule against the remote vesting of interests (also called the rule against perpetuities) declared void any remainder that might vest later than the period of a life-in-being plus twenty-one years. For example, in the grant "on trust to A for life, remainder to A's firstborn son when he turns thirty," the remainder is void if A's firstborn son is under nine years old at the time of the grant.

36. Duke of Norfolk's Case, 2 Swans. 454, 460 (1681).

37. Id.

38. See, e.g., Re Collier, 60 D.L.R. (2d) 70 (Nfld. S.C. 1966).

39. See Davies v. Davies, 36 Ch.D. 359, 393 (1887), per Bowen, L.J.: "The law of England allows a man to contract for his labour, or allows him to place himself in the service of a master, but it does not allow him to attach to his contract of service any servile incidents,—any elements of servitude as distinguished from service." See also In Re James Sommersett, 20 St. Trials 1 (1771-1772); Archer v. The Society of the Sacred Heart of Jesus, 9 O.L.R. 474 (Ont. C.A. 1905).

40. Guido Calabresi and A. Douglas Melamed, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," 85 Harv. L. Rev. 1089, 1111-1112 (1972).

41. See Charles Callaghan, Adverse Possession (Columbus: Ohio State University Press, 1961), 89-96.

42. Aristotle's justification of private ownership is an example of this type; see Politics, 1262b-1265b. So, of course, is Jeremy Bentham's; see "Principles of the Civil Code," in C. K. Ogden, ed., The Theory of Legislation (London: Routledge & Kegan Paul, 1931), 158 ff. Contemporary examples are Munzer, A Theory of Prop erty, chaps. 4-6; Jeremy Waldron, Right to Private Property, chaps. 8-10; Harold Dem-setz, "Toward a Theory of Property Rights," 57 Am. Econ. Rev. Papers and Proceedings 347 (1967).

43. John Locke, The Second Treatise of Government, ed. Thomas Peardon (Indianapolis: Bobbs-Merrill, 1952), pars. 25-51.

44. For critiques of the "mixing" theory, see Waldron, Right to Private Property, 184-191; Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 174-175; William Lucy and Francois Barker, "Justifying Property and Justifying Access," 6 Can. J. Law and Jurisprudence 287, 299-303; Lawrence Becker, Property Rights: Philosophic Foundations (Boston: Routledge & Kegan Paul, 1977), 33-43.

45. For accounts of Hegel's theory of property that adopt this perspective see Peter Stillman, "Hegel's Analysis of Property in the Philosophy of Right," 10 Cardozo L. Rev. 1031 (1989); Jeremy Waldron, Right to Private Property, chap. 10.

46. Since a "thing" is simply an entity that lacks the capacity for self-consciousness, there is no reason to limit property to tangible things, and the common law never did so (witness incorporeal hereditaments). Accordingly, there is no basis for the view that the modern "dephysicalization" of property is inconsistent with the classical notion of property; see Kenneth Vandevelde, "The New Property of the Nineteenth Century: The Development of the Modern Concept of Property," 29 Buffalo L. Rev. 325, 331-340 (1980); Morton Horwitz, The Transformation of American Law, 1870-1960 (New York: Oxford University Press, 1992), 145. I discuss the conceptual genesis of intangible property below, n. 83. Moreover, since a thing is whatever lacks self-consciousness, there is no reason to limit property to things outside the self. Thus, skills, talents, and time-restricted exercises of labor power may also be the subject matter of property; see Hegel, Philosophy of Right, par. 67. Radin criticizes Hegel for basing the distinction between property and nonproperty on an elusive distinction between what is outside and what is inside the self, a distinction he then supposedly violates in allowing labor power to be alienable property; see "Market-Inalienability," 1891-1898. But this critique rests on a misunderstanding of Hegel's statement that only things "external by nature" can be property (Philosophy of Right, par. 65). This does not mean that only things external to the self can be property; it means that only things that lack the interior-ivy of serf-consciousness and that are thus "external by nature" can be property.

47. Hegel, Vorlesungen, III, 187, 197.

48. The law of co-ownership exemplifies rather than contradicts the private nature of common-law property. Joint tenants merge (by virtue of the four unities) into a single person who is considered to hold indivisibly all rights in respect of the object. The single owner is not a transcendent or common personality in whose ownership the several persons have a distributive share; rather, it is quite literally a single person in which the several individuals are obliterated. Thus joint owners in theory own no shares in the object (hence the right of survivorship), and a statute was required to allow one joint tenant to sue another for appropriating more than an equal share; see Megarry and Wade, Law of Real Property, 417-433. By contrast, tenants-in-common own shares in the object; yet they do so not as beneficiaries of a common property but as private owners of segments that have not yet been divided.

49. Thus, apart from contract, an obligation to look after someone's property arises only if one has assumed legal possession of the object, for only then is one's obligation a negative one not to interfere with or "take" the bailor's property. Someone who merely licenses the use of his premises for the storage of property assumes no duty of care; see E. L. G. Tyler and N. E. Palmer, eds., Crossley Vaines' Personal Property, 5th ed. (London: Butterworth, 1973), 79-82.

50. Epstein affirms the unity of the incidents of ownership but gives no account of this unity; see Richard Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985), 57-62. The argument for unity consists in a series of rhetorical questions disputing the possibility of coherently subtracting any of the incidents from ownership. "Is it sensible," Epstein asks, "to have a notion of ownership without the right of possession?" (id., 60). Someone might reply, however, that this subtraction is precisely the basis of the landlord-tenant relationship, which, if incoherent, is not self-evidently so. Epstein also claims that rights of ownership are of "infinite temporal duration" (id., 60). But how is this consistent with a grant of rights of possession and use for a finite temporal duration? If there is some time during which I do not possess these rights, then I do not possess them for an infinite duration. The correct formulation would seem to be that ownership embraces its incidents conceptually and therefore atemporally.

51. Lawrence Becker summarily dismisses Hegel's argument that first possession confers a right to exclude on the ground that Hegel's statements establish at best a right to appropriate but not to keep; see Becker, Property Rights, 29-30. However, Becker misses the normative claim behind appropriation that establishes the right to keep. If my possession makes good the claim that I am the thing's final end, then the thing is "mine" (subject to any superior self-validation by another).

52. Cf. Immanuel Kant, The Metaphysics of Morals, trans. M. Gregor (Cambridge: Cambridge University Press, 1991), 68-77.

53. The usual explanation for this rule is instrumentalist. Giving the finder a right subject to the right of the previous occupier prevents free-for-ails while vindi-caring expectations of secure possession; for a version of this argument, see David Hume, A Treatise of Human Nature (Oxford: Clarendon Press, 1888), 505. Yet this rationale fails to determine the rule, since chaos will also be prevented by a rule giving the state custody of lost objects subject to the right of the true owner. Arguments might be advanced for the pragmatic superiority of a finder's right, but their validity would be relative to circumstances. By contrast, the argument from personality determines the rule, for it explains how possession by itself could be thought to confer a right to possess.

54. Keron v. Cashman, 33 A. 1055 (1896).

55. It follows, too, that objects susceptible only to an incomplete reduction to the will are the subject of a qualified property. Thus, a person has an unconditioned property in a tame animal but a qualified one in a wild animal; once the wild animal regains its liberty, it is no longer his. See a William Blackstone, Commentaries on the Laws of England, 4th ed. (1771), 392-393.

56. This is Posner's view; see Economic Analysis of Law, 35-36. In the economic theory of property, rights of exclusive possession emerge when it becomes worthwhile to internalize the costs and benefits of resource use. This occurs when changes in demand make certain resources acutely scarce in relation to human want. At that point property is needed to ensure that investors capture the benefits of their labor (for otherwise the incentive to produce what others want will be lacking) as well as to ensure that the costs of resource utilization are internalized to the user (for otherwise the incentive for efficient utilization will be lacking). See Harold Demsetz, "Toward a Theory of Property Rights," 57 Am. Econ. Rev. Papers and Proceedings 347 (1967). According to economic theory, then, property is a policy response to a competition for scarce resources that, if unregulated, would produce inefficient outcomes. Scarcity itself is left unexplained, since human wants are accepted as given. Also unexplained is the goal of efficiency, which is simply assumed as a value. Thus, economic theory explains property as a device for achieving an unexplained goal in the face of an unexplained problem.

57. See Carol Rose, "Possession as the Origin of Property," 52 Univ. Chic. L. Rev. 73, 81-82 (1985). It is difficult to see how, short of a statutory recording system, a requirement that possession be notorious eliminates uncertainty of title. As Rose notes, the question as to what constitutes notorious possession remains a fecund source of conflict.

58. See South Staffordshire Water Co. v. Sharman, [1896] 2 Q.B. 44.

59. See D. R. Harris, "The Concept of Possession in English Law," in Anthony Guest, ed., Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1961), 82-84.

60. See Kant, Metaphysics of Morals, 83-84; 2 Blackstone, Commentaries, 258; Richard Epstein, "Possession as the Root of Title," 13 Ga. L. Rev. 1221 (1979); Rose, "Possession as the Origin of Property," above n. 57.

61. O. W. Holmes, The Common Law, ed. M. Howe (Cambridge: Belknap Press, 1963), 163-167.

62. This error is responsible for a number of false steps in the common law; see below, n. 67.

63. Armory v. Delamirie, 93 E.R. 664 (1722).

64. That ownership is distinct from best pnssessory tide is shown by the fact that an owner with no right to immediate possession (e.g., a bailor) can sue for damages to his reversionary interest; see Tyler and Palmer, Personal Property, 79.

65. Hegel, Vorlesungen, IV, 218: "A property without ususfructus is only an empty word."

66. The superiority of use to possession as an embodiment of personality (and so as a basis of title) is also reflected in the ancient doctrine of alteration. Someone who wrongfully takes another's grapes and mrna them into wine has the best property in the wine; he is liable in damages only for the value of the grapes; see 2 Blackstone, Commentaries, 404.

67. See, e.g., Rodgers v. Elliott, 146 Mass. 349, 15 N.E. 768 (1888). Considered as inwardly limited by the requirement of objectivity (and so by the equal right of others), the right to use is prolific of common-law and statutory doctrines. It underlies not only nuisance law but also the tenant's right to quiet enjoyment, the landlord's duty to provide and maintain residential premises fit for habitation, restrictions on tenants' use, the right to lateral and subjacent support, riparian rights, and the law of easements and of restrictive covenants. The tendency to privilege possession at the expense of use as the paradigm of property is responsible for some of the more egregious false steps of the common law. Until recently, for example, the tenant's right to quiet enjoyment was regarded as protecting him only against physical invasions inconsistent with possessory title. Interferences with ordinary use were not per se enjoinable unless associated with the use of the landlord's property or unless construable as an effective eviction. Similarly, public regulation depriving an owner of a reasonable use of his land has sometimes been denied the status of a compensable taking because the owner retains his possession. And a breach of the landlord's duty to provide premises fit for habitation was traditionally viewed as providing no justification for withholding rent because rent was seen as consideration for a possessory right, which the tenant still held. Finally, the rule that economic loss is recoverable in tort only if consequential on physical damage to property seems also to exalt possession from an element of property to a criterion thereof. Yet all of these errors have either been corrected by statute or are in the process of revision by the common law.

68. See Sturges v. Bridgman, 11 Ch.D. 852 (1879).

69. That the right to use is circumscribed by the equal user right of others reveals the limited sense in which it is true to say that property is a conclusion of tort law. This statement is true to the extent that one's claim of right must be objectively validated, and this requirement of objectivity implicates at least one other will; thus one's property in specific uses must be codetermined with that of another person according to an objective and impersonal standard. What begins as an asocial relation between a person and a thing culminates in a social one between persons, and I shall presently say more about the significance of this movement. However, the statement is interpretively dubious if it implies that one's property in uses is flexibly mediated through a criterion of social welfare independent of the priority of the person. The account of property that fits the dominant common-law discourse is one that reveals property as an objectively valid connection between a thing and an abstract person. The objectivity of this connection makes relevant the abstract persons of others but consigns to irrelevance their welfare. There is thus a formally determined property in uses that is independent of welfarist considerations and whose invasion constitutes a transitive taking. The welfarist conception of property, as Ronald Coase has shown, leads to the result that property does not matter, since bargaining will theoretically produce the optimal welfarist result wherever the entitlement is initially placed; see Ronald Coase, "The Problem of Social Cost," 3 J. Law and Econ. 1 (1960). The obsessive preoccupation of courts with what is economically irrelevant must then be explained by the existence of real-world negotiating costs that obstruct movement toward the efficient outcome. This explanation is unsatisfying, however, since it only reaffirms the position that property is irrelevant. If the court awards the entitlement to the party who would, but for transaction costs, have bought it from the other party, it implies that the process of market transfer is of no intrinsic importance, that only the result matters, even though the process (who pays whom) is determined precisely by the locus of the property right. Further, the economic interpretation of nuisance law leads us to expect that, where transaction costs are low, judges would resolve a dispute over conflicting uses randomly (thus saving the expense of hearing legal argument, guessing the optimal assignment, etc.), an expectation disconfirmed by experience. The reply must then be that judges do imperfectly something other than their rhetoric avows. To this we can respond only with an alternative account of judicial practice, one that is validated by its rhetoric rather than isolated by it.

70. See Tulk v. Moxhay, 41 Eng. Rep. 1143 (Ch. 1848).

71. See Cribber and Johnson, Principles, 375-376; French, "Toward a Modern Law of Servitudes," 1289, 1292.

72. See French, "Servitudes Reform," 929-930.

73. See INS v. AP, 238, per Pitney, J.; Krouse v. Chrysler Canada Ltd., 25 D.L.R. (3d) 49, 59 (1972); cf. Locke, Second Treatise, par. 27.

74. Epstein, "Possession as the Root of Title," 1226.

75. Locke, Second Treatise, par. 27.

76. For a discussion of the relation between labor and property in Hegel's the-try of property, see Alan Ryan, Property and Political Theory (Oxford: Blackwell, 1984), 124 ff.

77. Locke, Second Treatise, par. 27; Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1974), 174-182.

78. How can we reconcile this conclusion with the right of the first occupier? As long as we are on the path toward a full property, each step on the way is self-contradictory, driving us forward. Thus, first occupation confers a property, for it is an incursion of personality in the thing that must be respected if personality is to be respected as an end. However, the unilateral nature of the exclusion means that possession is a defective and hence inchoate property. When we arrive at the culminating condition of property, each of the preceding phases is retrogressively validated. First occupation now confers a coherent property (defeasible by the adverse possessor) because the conditions are now in place which render it consistent with the equal right of others to an unlimited appropriation.

79. See S. von Pufendorf, De Officio Hominis et Civis Juxta Legem Naturalem Libri Duo, trans. F. G. Moore (New York: Oceana, 1964), II, 62; Hugo Crotius, De Jure Belli AcPacis Libri Tres, trans. F. W. Kelsey (New York: Oceana, 1964), II, 189-190.

80. That property in a thing is conceptually fulfilled by the power freely to alienate it explains the special common-law remedies for intentional infringements of property. Trespasses are actionable without proof of physical damage and even if the plaintiff is benefited, for the act's inconsistency with property lies not in the material harm it inflicts but in its failure to respect the free choice of the owner. To protect this choice, courts enjoin takings before they occur, and they may award damages in excess of the market value of something converted if ordinary damages would amount to a sale forced on the plaintiff; see John Fleming, The Law of Torts, 8th ed. (Sydney: Law Book Co., 1992), 69. Indeed, if the defendant's gain exceeds the plaintiff's loss, they will allow the plaintiff—through waiver of tort—to capture the gain in order to vindicate his right freely to dispose.

An instrumentalist view of the injunctive remedy sees it as promoting efficient resource allocation in situations where transaction costs are low, since injunctions permit the free expression of the parties' subjective valuations and so ensure that the object will find a home where it is valued most; see Calabresi and Melamed. "Property Rules, Liability Rules, and Inalienability." Thus we do not protect an entitlement with a property remedy in order to reflect its status as property; rather, something is property because we protect it with a "property" remedy, and the decision to do so is driven by the variable exigencies of efficiency. Were it simply a political program for the reorganization of property law under the primacy of economic efficiency, the economic perspective could not be immanently criticized as either true or false, since it would recognize no object by which to test the validity of its ultimate norm. One could criticize it only as a dogmatism that, because it gives equal standing to rival dogmatisms, renders theoretical disputes absurd. Perhaps to avoid this result, the economic perspective presents itself not as an opinion as to how legal remedies ought to be remodeled but as a "view of the cathedral," that is, as an interpretive account of the practice and discourse of property law. Yet once it recognizes this discourse as a touchstone for the truth of its own, it convicts itself of uttering falsehoods, for its account of property transforms the latter into something entirely different from the property understood by the common law. Common-law property refers to an objectively valid connection between an external object and an individual person. It is an individual right of exclusive control. In the economic account, the idea of a valid bond between object and subject is still present, but the subject of this relation is no longer the individual person but the collective one. What the common law calls property is for economic analysis simply an entitlement protected by an injunction, a remedy one will receive only if transaction costs will not distort efficient trading. Thus the only noncontingent property consists in the relation between the object and the collective person whose welfare-maximizing goal determines where entitlements rest and how they are protected. Whatever one may think of this notion as a political proposal, it unquestionably presents a distorting perspective on the cathedral.

81. Thus Seyla Benhabib is not strictly correct in saying that for Hegel the "proprietary rights of the individual are stipulated prior to the act of contract." See "Obligation, Contract, and Exchange: On the Significance of Hegel's Abstract Right," in Z. A. Pelczynski, ed., The State and Civil Society: Studies in Hegel's Political Philosophy (Cambridge: Cambridge University Press, 1984), 163.

82. Fountainebleu Hotel Corp. v. Forty-Five-Twenty-Five, Inc., 114 So.2d 357 (Fla. S.C. 1959); Port v. Griffith, [1938] 1 All E.R. 295.

83. We are now in a position to understand the significance of property in such intangibles as shares, choses in action, trade secrets, endorsing power, and goodwill. Once property is fulfilled in exchange, commensurability between diverse objects requires an abstraction from corporeal things to incorporeal value. At this point, one's property is not confined to the sensuous thing one temporarily possesses but extends perdurably to its exchange value vis-à-vis all other objects; that is, one's final property is in a certain extent of control over the material world in its entirety (sec Vorlesungen, IV, 227). But sensible objects are not the only sources of such control. Legally recognized entitlements to resources (e.g., corporate shares) are too, as are trade secrets and commercial reputation. Thus, once juridicai control over the world is established in exchange, that control becomes itself amenable to exchange. It becomes possible for incorporeal value to attach not only to physical objects but to already existing entitlements to objects or to the power to accumulate objects. If we forget the origins of this development, we may arrive at the conclusion that property is any legally protected valuable interest; and then it is a short step to treating property as an idle concept—as any entitlement secreted from the political accommodation of competing interests; see Vande-velde, "The New Propcrty," 329. The fallacy in this reasoning lies in assuming that the logical culmination of a developmental process makes the preceding stages superfluous—an assumption that would make adulthood intelligible without childhood and adolescence. From the fact that property is conceptually fulfilled in a right to exchange value, it does not follow that the concept of property is swallowed up by the idea of a valuable legal interest. One may view all the developmental phases of property as essential to its concept, in which case possession and use confer a property independently of public policy.

84. Cf. Kant, Metaphysics of Morals, 218-219. Thus Radin errs when she writes that the framework of right based on abstract personhood logically culminates in universal commodification; see "Market-Inalienability," 1897-1898.

85. See Johnstone v. Johnstone, 12 D.L.R. 537 (Ont. C.A., 1913). Because a valid gift emerges only from a relation (albeit an imperfect one) of mutual recognition between ends, it is vitiated by factors—for example, mistake, fraud, and undue influence—that undermine mutuality. Thus, the donee may recognize the owner's capacity to dispose, but the gift will fail if mistake undercuts the donor's recognition of the donee. Conversely, if the donee overpowers the independent will of the donor, the latter becomes incompetent to establish a property in the donee.

86. See Hegel, Phenomenology of Spirit, 290—328.

87. See Morris Cohen, "Property and Sovereignty," 13 Cornell L. Q. 8, 11-14 (1927); C. B. MacPherson, "The Meaning of Property," in MacPherson, ed., Property: Mainstream and Critical Positions (Toronto: University of Toronto Press, 1978), 12.

88. See Inwards v. Baker, [1965] 2 Q.B. 29 (Eng. C.A.).

89. See Pascoe v. Turner, [1979] 1 W.L.R. 431 (C.A.).

90. See Hurst v. Picture Theatres, Ltd., [1915] 1 K.B. 1 (C.A.); see also Er-rington v. Errington, [1952] 1 K.B. 290 (C.A.).

91. See Sorochan v. Sorochan, [1986] 2 S.C.R. 38; Pettkus v. Becker, [1980] S.C.R. 834.

92. The exception of public expropriation will be explained below, sec. 7.

93. See Perka v. The Queen, [1984] 2 S.C.R. 233.

94. See Post v. Jones, 60 U.S. (19 How.) 150 (1856).

95. See Woollerton and Wilson Ltd. v. Richard Costain Ltd., [1970] 1 W.L.R. 411.

96. 124 N.W. 221 (1910).

97. Ernest Weinrib, "The Case for a Duty to Rescue," 90 Yale L. J. 247, 268-279 (1980).

98. Above n. 33.

99. See Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor, 58 C.L.R. 479 (H.C. 1937).

100. Singer, "The Reliance Interest," 633-637.

101. For example, United States v. Bethlehem Steel Corp., 315 U.S. 289, 326 (1942), per Frankfurter, J.: "[I]s there any principle which is more familiar or more firmly embedded in the history of Anglo-American law than the basic doctrine that the courts will not permit themselves to be used as instruments of inequity and injustice? Does any principle in our law have more universal application than the doctrine that courts will not enforce transactions in which the relative positions of the parties are such that one has unconscionably taken advantage of the necessities of the other?" Stockloser v. Johnson, [1954] 1 Q.B. 476, 488-489 (C.A.), per Denning, L.J.: "The claimant invariably relies, like Shylock, on the letter of the contract to support his demand, but the courts decline to give him their aid because they will not assist him in an act of oppression." Lloyd's Bank v. Bundy, [1975] 1 Q.B. 326, 336-337, per Lord Denning, M.R.: "There are cases in our books in which the courts will set aside a contract, or a transfer of property, when the parties have not met on equal terms—when the one is so strong in bargaining power and the other so weak—that, as a matter of common fairness, it is not right that the strong should be allowed to push the weak to the wall." Re Diplock, [1948] Ch. 465, 532 (C.A.), per Lord Greene, M.R.: "[E]quity intervenes not to do what might be thought to be absolute justice to a claimant but to prevent a defendant from acting in an unconscionable manner. Equity will not restrain a defendant from asserting a claim save to the extent that it would be unconscionable to do so. If this limitation on the power of equity results in giving to a plaintiff less than what on some general idea of fairness he might be considered entitled to, that cannot be helped."

102. My conclusion regarding Vincent v. Lake Erie, therefore, is that it is either a case of this type or it was wrongly decided (i.e., the plaintiff was entitled to compensation for the expropriation in addition to that for damage to the dock).

103. The good faith purchaser for value exception to the rule that nemo dat quod non habet is also explicable in these terms. Here equity protects the projects of the good faith purchaser against a property law that, in the circumstances, impinges on him in the form of a blind and incalculable fate. Since its effects are beyond the scope of the purchaser's rational foresight and control, property law would, if enforced in these circumstances, contradict the agent's autonomy. The law's enforcement would thus subvert its own universality, for it would be unrecognizable to the rational agent as his good, as supporting his self-determination. Once again, therefore, equity revokes the self's estrangement in formal property by canceling the power of property insofar as this power acts externally· The limitations of the exception ensure that it will govern only in circumstances where the enforcement of formal property would subject the purchaser to an incalculable fate rather than to consequences under his rational control. Thus, the purchaser must take in good faith; he must believe the seller has good rifle. Moreover, his belief must be based on reasonable grounds (e.g., he must have purchased in a "market overt" or must have reasonably relied on the owner's assurance that the transferor had a right to transfer the goods). Finally, he must give value for the goods; that is, he must be innocent of wrongdoing himself, for otherwise the enforcement of property against him is immanent in his rational will (as a vindication of the equal worth of persons) and not external to it. Equity thus cancels property only in order to realize better the end that property itself embodies.

104. Hegel formulates the right operative here in Philosophy of Right, par. 107: "The moral standpoint … takes shape as the right of the subjective will. In accordance with this right, the will recognizes something and is something, only in so far as the thing is its own and as the will is present to itself there as something subjective." See also Vorlesungen, IV, 301.

105. It would be preferable to cease all reference here to an affirmative duty on the part of the person seeking to enforce his or her property. The duty is on the court. The observance of this duty means, of course, that the plaintiff forgoes his or her right. But the court is not enforcing the plaintiff's duty; it is conforming to its own. This is why an equitable right is said to engage the conscience not of the other party but of the court; see George Keeton and L. A. Sheridan, Equity, 3d ed. (London: Barry Rose, 1987), 3.

106. Sometimes judges give explicit expression to the idea that equity fulfills a formal right that, if absolutized, contradicts itself. See, e.g., Morehead v. People of State of New York ex rel. Tipaldo, 298 U.S. 587, 627 (1936), per Hughes, C.J.: "We have had frequent occasion to consider the limitations on liberty of contract·While it is highly important to preserve that liberty from arbitrary and capricious interference, it is also necessary to prevent its abuse, as otherwise it could be used to override all public interests and thus in the end destroy the very freedom of opportunity which it is designed to safeguard."

107. See Joseph Sax, "Some Thoughts on the Decline of Private Property," 58 Wash. L. Rev. 481, 484 (1983); Posner, Economic Analysis of Law, 32-38; Singer, “The Reliance Interest," 650; Horwitz, Transformation, 164-167.

108. See Michelman, "Property, Utility, and Fairness," 1214-1224. In Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), the U.S. Supreme Court framed the compensation issue in terms having nothing to do with property. Writing for the majority, Justice Brennan said, "[T]his court . . . has been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government" (124; my emphasis). The majority proceeded to enumerate a number of factors to be weighed in the balance, including the nature of the governmental action (a physical invasion will "more readily" be viewed as requiring compensation than other forms of interference) and the extent of the economic impact on the claimant. Some later decisions of the Court have resiled from the balancing approach of Penn Central toward a property-oriented analysis; see, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886 (1982); Hodel v. Irving, 481 U.S. 704 91987). For a critique of this tendency from an instrumentalist perspective, see Singer and Beermann, "The Social Origins of Property."

109. See Charles Reich, "The New Property," 73 Yale L. J. 733 (1964).

110. Susan Rose-Ackerman, "Inalienability and the Theory of Property Rights," 85 Col. L. Rev. 931, 931-933 (1985); Charles Donahue, "The Future of the Concept of Property Predicted from Its Past," in J. R. Pennock and J. W. Chapman, eds., Nomas, vol. 22: Property, 28: Grey, “The Disintegration of Property," 69.

111. Jeremy Waldron, "What Is Private Property?" 5 Oxford J. Leg. Stud. 313, 336 (1985); Grey, "The Disintegration of Property," 70-73.

112. See Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y.S.C. 1970); Miller v. Jackson, [1977] 3 All E.R. 358 (C.A.).

113. See Spur Industries v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. S.C. 1972). Another illustration: in deciding whether someone is liable in trespass to the owner of property, a court will have to consider whether the property is so affected by a public interest as to warrant a qualification of the owner's right to exclude; see Amalgamated Clothing Workers of America v. Wonderland Shopping Centre Inc., 122 N.W.2d 785 (Mich. S.C. 1963). See also the dissenting judgment of Laskin, J., in Harrison v. Carswell, 62 D.L.R. (3d) 68, 69-77 (S.C.C. 1975).

114. For this tension in the public takings jurisprudence of the U.S. Supreme Court, see Margaret Radin, "The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings," 88 Col. L. Rev. 1667 (1988).

115. See Kaiser Actna v. United States, 444 U.S. 164 91979); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

116. I mean here any actual, nonnuisance use, not all economically viable non-nuisance uses. The latter is currently the threshold for compensable regulatory takings set by the United States Supreme Court; see Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886 (1982).

117. See Hodel v. Irving, 481 U.S. 704 (1987).

118. See Armstrong v. United States, 364 U.S. 40, 49 (1960); cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), per Holmes, J.

119. Drucilla Cornell has drawn attention to the dialogic nature of Hegel's idea of community. See "Dialogic Reciprocity and the Critique of Employment at Will," 10 Cardozo L. Rev. 1575 91989).

120. Hegel, Natural Law, trans. T. M. Knox (Philadelphia: University of Pennsylvania Press, 1975), 94-104.

121. Those who identify Hegel's fully developed state with the one-sidedly "substantial" community come to the conclusion that private property is submerged in Hegel's state. For example, Radin writes ("Property and Personhood," 976-977), "Hegel's theory of the state carries the seeds of destruction of all liberal rights attaching to individuals (because in the state particular arbitrary will passes over into willing the universal). Hence, there is in Hegel's theory a foundation for the communitarian claim that each community is an organic entity in which private property ownership does not make sense. Hegel does not make this claim, perhaps because he is too firmly rooted in his own time." Hegel does not make this claim, because the community that reduces the individual is inadequate to the idea of community (as the common good of individuals). The community that fully conforms to its idea recognizes the individual self as an independent end and so contains liberal anticommunitarianism as an enduring moment of its self-development; see Hegel, Philosophy of Right, par. 260.

122. The theory of property advanced here thus takes a dim view of much of the public takings jurisprudence of the United States Supreme Court and, in particular, of the position represented by Penn Central Transportation Co. v. New York City, above n. 108. It rejects the view that the issue of compensation is properly decided by balancing the costs to the claimant against the benefit to the public; it rejects the view that a regulation of use must deprive the owner of all economically viable use (or otherwise inflict severe economic harm) before it becomes a taking; it rejects the view that the extent of the diminution of the value of the property is a relevant consideration (since there is no property in value prior to exchange); and it rejects the view that the frustration of "reasonable investment-backed expectations" is relevant to the takings clause of the Fifth Amendment (since either these expectations are linked to a property interest, in which case they are protected as property and not independently; or they are not, in which case they are protected, if at all, by the due process clause, not by the takings clause).

123. Of course, the individual might be disproportionately burdened even if no taking has occurred. For example, the construction of a superhighway might severely diminish the profitability of a filling station on a country road with no reciprocal advantage to the owner and without infringing possession, ordinary use, or the right to alienate. In this case, any duty to compensate derives not from the right to property (hence neither from the takings clause of the Fifth Amendment nor from the common-law presumption against uncompensated takings) but purely from the requirement to distribute fairly the costs and benefits of social cooperation. Our vindication through dialogic community of the distinction between private and public law (and hence of the division of function between courts and legislatures) explains why the duty arising from distributive justice is in most common-law jurisdictions thought to be unenforceable by courts in the absence of a compensation statute. It follows, moreover, that Justice Holmes's "average reciprocity of advantage" criterion for compensable injuries is inappropriate to a takings jurisprudence; see Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

124. Thus legislative interferences with freedom of alienation to protect the real interests of the weaker party (e.g., rent control statutes) require no compensation, but a ban on the sale of eagle feathers acquired prior to the enactment of a conservation statute does. See Andrus v. Allard 444 U.S. 51 (1979), where the United States Supreme Court held there was no taking in the latter case. For the Court's position on rent control, see Pennell v. City of San Jose, 108 S.Ct. 849 (1988), holding that statutes regulating economic relations between landlords and tenants are not per se takings.

125. These and the following remarks draw their inspiration from Hegel's theory of the corporation; see Philosophy of Right, pars. 249-256.

126. Adolf Berle and Gardiner Means, The Modern Corporation and Private Property (New York: Harcourt, Brace ge World, 1968), 3-10, 78-111, 126-140, 244-252·

127. See Michael Fogarty, Company and Corporation—One Law? (London: Chapman, 1965), 60-153; Walter Kolvenbach, Workers Participation in Europe (Deventer, The Netherlands: Kleuver, 1977).

128. see Patrick Macldem, "Property, Status, and Workplace Organizing," 40 Univ. Toronto L.J. 74 (1990); see also State v. Shack, 277 A. 2d 369 (N.J.S.C. 1971).

129. Singer, "The Reliance Interest."

130. Cornell, "Dialogic Reciprocity."

131. Above n. 96.

132. Singer, "The Reliance Interest"; Grey, "The Disintegration of Property," 80; David Beatty, "Industrial Democracy: A Liberal Law of Industrial Relations," 19 Valparaiso Univ. L. Rev. 37, 68 (1984); Macklem, "Property, Status, and Workplace Organizing."