4.3 Possession

If property is the objective reality of the person's status as an end, we understand property when we understand all the conditions for the end's realization. Because these conditions will be the necessary and jointly sufficient ones of an objectively valid mastery of things, they will stand to each other not as isolated "sticks" in a "bundle" but as coessential elements of a totality.50 That is to say, they will form what are commonly called the "incidents" of ownership—the particular rights that are involved in the notion of property. Each condition will be partly constitutive of a property in things, because each will objectify in a progressively more adequate way the person's claimed end-status vis-à-vis things. Property in the full sense will be the interconnected totality of all its partial realizations. It will be possible to distinguish, therefore, between an imperfect and a fully realized property and so between inferior and superior (or relative and absolute) rides to things; and it will be possible to parcel out for finite periods some of the constituent elements of property while keeping intact its

atemporal notion, thereby making possible the ideas of a remainder and a reversion.

Let us, therefore, follow Hegel's derivation of the elements of property, relating it as we go to the common law. To begin with, the person proves itself as the end of things by physically possessing them (54-58).51 Possession confers a (defeasible) right to exclude because it (partially) objectifies a normative claim—a claim that personality is an absolute end commanding respect. Possession is, however, the weakest form of self-validation because it leaves the thing with a semblance of positive reality. The thing is possessed, but it continues to exist independently of the self. In possession, moreover, the person's self-proving activity is hemmed in by physical constraints, for there are narrow limits to what one can manually grasp, form, or mark out. The possessive personality is thus confined by the physical world it seeks to master.

Still, the physical aspect of possession cannot imprison completely the metaphysical reality it embodies. For while initially physical, possession purports to have a conceptual significance that is independent of the contingency of sensuous possession. The conceptual significance of possession, once again, is that it objectifies the person's end-status in relation to the thing. So conceived, possession is a "property"—a right to possession—one that binds others even if physical possession is discontinued. A distinction thus arises between sensuous and juridical possession, the latter dependent on the former but striving to transcend its limitations.52 Hence at common law a finder in physical possession of an object has a right to exclude others, subject to the right of possession of the person formerly in possession.^[53] Moreover, because juridical possession is a mode of giving objective reality to the self's primacy, it comprises the two moments of this act. It requires an animus possidendi, an intention to master the object, for otherwise possession is not the embodiment of a self;^[54] and it requires a physical occupation adequate for control and recognizable by others, for otherwise possession remains one-sidedly subjective.^[*] Accordingly, the common-law prerequisites for the enforcement of possession are just the conditions for the person's objective realization as an end prior to en-

[*] Eads v. Brazelton, 22 Ark, R. 499 (Ark. S.C. 1861). That juridical possession must be publicly recognizable explains the importance of formalities in the common-law transfer of title. To pass title, the transferor must publicly divest himself of control of the object, while the recipient must likewise take control in public. Whether as a physical delivery of the object, as livery of seisin, or as a signed, sealed, and delivered deed, therefore, the transfer must observe a formality at which the public is theoretically present. The public is present, however, not for the evidentiary purpose of resolving disputes about title that may eventuate in the future, but for the purpose of validating the transfer of rightful possession in the present. Thus the formal requirements of delivery must be met even if they are superfluous as evidence of a firm and considered intent to alienate; and they are sufficient to constitute delivery even if they fall short of providing such evidence; see Cochrane v. Moore, 25 O.B.D. 57 (1890). If we ignore the requirement of publicity, transference of the physical thing to signify a transference of the property will appear, as it did to Hume, superstitious; see David Hume, A Treatise of Human Nature (Oxford:  Clarendon Press, 1888), 515-516.

forcement. In this sense the common law creates nothing new: it does not bestow property rights pursuant to some socially desired goal. Rather, it certifies a property already implicitly accomplished through the appropriating action of the self.

That juridical possession (the kind of possession that merits legal recognition as an objective right) is an intentional occupation sufficient for exclusive control by a person implies that objects such as air, news events, and ideas that are physically irreducible to such control cannot be the matter of common-law property.^[55] It is not because these objects are plentiful that their acquisition is not regulated by common-law property rules;^[56] rather, it is because they are not amenable to property that they are plentiful. Moreover, the common-law requirement that possession give public notice of itself has no need of an instrumentalist justification appealing, for example, to the utility for trading purposes of clear marks of title;^[57] for notice is fully intelligible as a constituent element of property. The person's subjective claim of final worth gains no objective confirmation unless its mastery of things is recognizable by other free selves. An exclusive possession established by acts merely intended to be proprietary would subordinate liberty to someone's private aims rather than to a public standard of effective control equally restrictive of all. Because such a possession cannot be respected by a free self, it cannot confer an objective right of exclusion.

If we understand possession as an imperfect embodiment of the self's final worth, then we can further distinguish between modes of possession considered as progressively more adequate embodiments within the limitations of possession itself. Thus laying hold of a particular object would be the least satisfactory embodiment of the will, for the self seeks an intellectual or unconditionally valid dominion (a "property") and yet its control of the object is here dependent on the contingency of physical contact. Reshaping it in some way would yield a better possession, since the imprint of the self now remains even when the thing is beyond its physical grasp. Marking out or enclosing a space would be the best possession, for such an act possesses in the symbolic way most adequate to the intellectual nature of property as an embodiment or "sign" of personality (58A). With this theory of the degrees of juridical possession one can understand how the common law typically resolves disputes between claimants to possession neither of whom is an absolute owner. As between a finder of a lost object and the occupier of the space within which the object was found,

the latter will as a rule prevail, especially if the object was found attached to or under the occupier's land.^[58] To some commentators, this rule is mysterious, for the finder has the intent to possess the specific object, whereas the occupier is usually unaware of its existence. They are inclined to think, therefore, that the courts are concealing a policy preference behind a bald conclusion that the occupier was in "possession" of the object when it was found (perhaps the owner will be better able to trace the object if it remains in the hands of the occupier).^[59] If, however, we understand enclosing as a possession truer than sensuous grasping to the notion of property as an inward relation between end and embodiment, then we will see why the possessor of the land has the best possession of everything attached to it. The courts' reason for preferring the occupier is thus intelligible on its own terms and stands in no need of a functionalist gloss.

It is commonly thought that first possession is the origin of title in things, that it is a self-sufficient ground of ownership legitimating all subsequent transfers. Both Immanuel Kant and Sir William Blackstone held this view, and the opinion is shared by such modern writers as Richard Epstein and Carol Rose.^[69] If we take this view, however, intractable problems arise. Why should the fact of unilateral acquisition confer a right to exclude those equally desirous of the thing? Insofar as a right to exclusive possession signifies a publicly recognized claim thereto, there is as yet nothing in the act of possession that entails such a right. The possessor publicly declares his possession but neither solicits nor receives the consent of his competitors to appropriate the object for himself. Yet another problem with possession as the root of title is the one noted by Holmes, who erroneously thought that it embarrassed Hegel as well as Kant.^[61] If possession is the source of ownership, then it must require an intent to possess as an owner, that is, to exclude the world. But then we are left with the puzzle as to how possessors (e.g., tenants and bailees-for-hire) who acknowledge title in someone else acquire possessory rights against the world (including the owner). Stated otherwise, if first possession confers ownership, then the right to possess must be equivalent to ownership. Someone who divested himself of the right to possess could not be an owner, while someone who acknowledged title in another would also acknowledge possession in that person and so could assert no possessory right against him. Yet tenants and bailees-for-hire have possessory rights against persons they acknowledge as owners. If possession is the root of ownership, how can juridical possession and ownership diverge?

These problems become soluble if we regard the claim that possession is the origin of ownership as mistaking the part for the whole.^[62] The kernel of truth in this claim is that possession is the most primitive (and least satisfactory) mode of objectifying the self as an end; hence it confers on the possessor a title relative to all those who have yet to establish even this

minimal connection with the object. Possession, in other words, is a partial or imperfect property, better than no subjugation of the thing at all. This is why the first occupier has a right to exclude all other would-be possessors, and it is why no one can defeat a possessory title (even that of a thief) by appealing to the right of the true owner.^[63] Yet because possession is an imperfect property, it will be subordinate to grounds of title that represent superior realizations of personality as an end. Thus someone with the best possessory title may be distinct from the owner; while conversely, ownership that is grounded in a way fully adequate to its concept can stand independently of possession, even as possession continues to confer relative (including temporally finite) rights.^[64]

That first possession is not a full or self-sufficient ground of title is attested to by the common law itself. Suppose A takes possession of an ownerless tract of land by enclosing it with a fence on which he posts signs warning off trespassers. While A takes an extended holiday, B enters the land and puts it to intensive use for ten years. If A takes no action to oust B, his title will be extinguished in favor of B's. What is the ground of B's title? Against everyone but A his title can be called a possessory one, since no one but A has established even a minimal relationship to the land. Against A, however, his title cannot be merely possessory, because there is no reason why possessory acts orb should displace those of A. On the contrary, since A's acts occurred first, they should withstand any subsequent acts of possession as those of a mere trespasser. To be sure, we say that A has been dispossessed or that his possession bas been discontinued, leaving B alone in possession of the land. However, the discontinuance of A's possession is not a precondition of B's possession but a legal conclusion thereof. What we mean is that B's occupation was of such a kind as to oust A's, to deprive it of juridical force. If B had merely come onto the land and stood there for ten years, A would not have been dispossessed. Similarly, if A had made the slightest use of a portion of the fenced-in area, no acts of B would have succeeded in dispossessing him. Accordingly, A is dispossessed not because B performed acts amounting to mere possession but because he performed acts that were superior to possessory ones as objectifications of personality. What are these acts?