one’s place.50 This is why it makes no difference if the owner sells her property to someone else—all this means is that someone steps into her shoes and is now the owner while the right, as the right of the owner, remains identical. Similarly, the duty is owed by another who is not-the-owner. There is nothing about my particular identity that informs this duty, nothing that is specific to me. I have the duty to not interfere because I am not the owner. It is simple, and, in its generality, does indeed correlate with the right.51

Others have defended a conception of ownership as an ‘office’.52 This is helpful as a way of illustrating the fact that who the owner is does not matter—different particular individuals may hold the office of ownership.53 However, the idea of an office has more difficulty in helping us to understand the role of non-owners. To say that various individuals can hold the ‘office’ of non-owner is a strange use of the idea of an office. Office usually connotes the conferral of authority whereas nonownership is characterized by liabilities and obligations that require explanation. If the idea of office is simply used to illustrate the idea of impersonality then it is unclear what it adds, analytically, to our understanding of ownership. In contrast, the idea of omnilaterality provides a way of understanding how it is logically possible to have a correlative relation between owner and non-owner that is nonetheless general and impersonal. Perhaps more importantly, it connects the structure of possession with the idea of law.

5. Possession and the Incidents of Ownership

The argument so far is that possessory title can be understood through ideas of legality and the right of possession can be understood in formal terms as an omnilateral relation. Both are legal ideas, part of our understanding of the rule of law, and therefore show how possession can be understood in relation to the practice of law rather than through reference to extra-legal norms. I do not mean to suggest that we can understand the law of property simply by looking at the logical structure of an omnilateral relation, and I will say more about its limits in Section 6. But I do mean to argue that this provides us with the core analytic form of private ownership that can illuminate the relationship between possession, use, and alienability without necessitating a return to the justification of property.

Let me start with use. Accounts of ownership that include possession as a core right often ground this in some idea of use and the interests served by exclusive use.

50Others also note this generality as a distinctive feature of property rights. See e.g. Merrill and Smith 2001a, 788.

51Because this account of the omnilateral structure of possession preserves the correlativity between right and duty, it is not susceptible to the critique launched against Penner that he cannot account for the fact that this plaintiff has a claim against this defendant. See Dorfman 2010, 12 and Dorfman 2012.

52Essert 2013; Katz 2012.

53Although it does potentially carry the further connotations of involving a delegation of authority that is then exercised on behalf of the body who delegated it, which does not easily map onto an account of private property.

At the same time, as Harris has pointed out, it is more accurate to characterize ‘use’ in terms of open-ended use ‘privileges’ rather than ‘rights’.54 Possession as a right of exclusive control protects one’s ability to use something but there are no separate rights to particular uses or even a general ‘right’ to use one’s property that can be understood independently from the right of exclusive control. My use of my property is a privilege because in using something that is within my exclusive control, I wrong no one.

But consider the idea of use more closely in relation to the apple example. I can pick an apple and put it into a basket and we can consider this a kind of use. Suppose, however, that I want to save this apple until I have a full basket so that I can bake several apple pies. In a world without a right of possession, saving the apple in a basket is not a cognizable ‘use’ because once I put the apple down I have no entitlement to it. I might do a number of things to protect my ability to use the apples in the future. But none of these things is a present ‘use’ of the apples—it is a present use of other things in order to protect a hoped-for future use of the apples. Keeping the apples in the basket only counts as a use in a world of property rights. Just like stealing a base is only intelligible as an action within the practice of baseball, the use of things that one no longer physically possesses (such as when I put the apple down) is only intelligible as a use within a practice of law that recognizes a right of possession. The right of possession does not protect uses that we can understand in non-legal terms, in relation to natural abilities. What it does is legally secure an ability to use an object of property in ways that are otherwise not possible.

How does possession relate to alienability? I contend that the possibility of alienability is implied by the omnilateral structure of the right of possession. A ‘transfer’ is really just a substitution of one owner for another. Someone steps into my shoes as owner. This is possible because of the general form of the right of possession—the structure of the right and its correlative duty is general in nature, between the owner and non-owner. This generality already implies that it does not matter who the owner or the non-owner is. The particular person who happens to be the owner may change and the particular people within the set of ‘non-owner’ may change but the nature of the correlative right and duty remains the same.55 Whether I, as the particular owner, want to transfer my rights to you, so that you become owner, is a matter between the two of us with one caveat. That caveat is that there is still a separate question of the rules regarding when title passes. This is a separate question because it is governed by different concerns regarding legality, as outlined earlier. Non-owners need to know who the particular owner is so that they can take steps to avoid liability or plan their affairs through negotiating with the owner for particular uses, etc. A system of property, if it is to function in a manner

54Harris 1996, 214.

55In this way, cases of the assignment of property rights are the logical implications of the omnilateral structure of the right of possession. For an alternative account that seeks to make cases of assignment a kind of intermediate case between in rem and in personam rights, see Merrill and Smith 2001.

owners rather than the particular individuals who happen to be the owners. If they are agreements between owners, then it makes sense that they could ‘run with the land’. All this means is that whoever the particular owner happens to be is obligated because they are the owner.57

6. A Principled Practice of Property?

It is important to underscore the fact that there is nothing in the account I have offered of possession that says it must be this way, that a society must recognize private ownership. The entire thrust of my argument has been to claim that possession is intelligible without any commitment or reference to why we might think it is valuable or justified generally. It may be consistent with quite a number of different justificatory accounts and it may be critiqued from quite a number of different justificatory accounts. Moreover, there is nothing in this account that suggests a particular role for the state in relation to property rights—for example, that the state protect private property. All of these are important debates but, as I have tried to claim here, debates that are not part of what the courts do when they engage in legal justification or the elaboration of the legal idea of possession.

Therefore this argument is quite consistent with the view that we can collectively change aspects of the law of possession in order to pursue substantive social goals. For example, most jurisdictions have, to a large extent, moved away from reliance upon possessory title in relation to land and instead created various state-sanctioned systems of title. In doing so it is plausible to argue that substantive social goals, including economic goals, have been integrated into these systems.58 We can also choose to adopt hybrid forms of private ownership, changing the basic structure to reflect social goals. Arguably, jurisdictions that have embraced landlord-tenant reform for residential tenancies have done just that.

However, there is a deeper challenge to the view of justification that I have offered here. The challenge goes like this. Suppose that we adopt an interpretive account of the law which, following Dworkin, means that the ideas of ‘fit’ and ‘justification’ are always part of legal interpretation. Dworkin has recently refined his account to include ideas of legality as ‘the nerve of the dimension of fit’.59 Although he was referring to ideas of procedural fairness, a more robust account of the rule of law could be developed as an aspect of this dimension. Dworkin could therefore argue that the fact that possession can be made intelligible within an account of the rule of law in no way undermines his general argument regarding the nature of legal interpretation—it simply confirms the importance of the dimension of ‘fit’. Considerations of substantive justice remain potentially involved in any question of interpretation.

57See Essert 2013 and Austin 2013.

58See also Lueck 2003, for arguments as to when, from an economic perspective, common property is better than first possession for determining control over a particular resource.

59Dworkin 2004, 25.

I want to respond to this challenge by examining Dworkin’s general claim that the principles of substantive morality are already a part of the common law tradition, which for him is why what the law is always also involves the question of the law’s moral justification. Although in this chapter I cannot respond to all possible claims regarding the role that morality might play in common law reasoning, I do want to resist Dworkin’s account by showing that the principles that he calls ‘moral’ are better understood as specific examples of the principles of legality. The need to apply the rules of property in light of the demands of the principles of legality can indeed affect the substance of property law but it does so by remaining within an analytic framework defined by the rule of law and not broader ideas of political morality.

Consider Dworkin’s famous example of Riggs v Palmer, and its reliance on the principle that wrongdoers should not profit from their wrong.60 Although not a case about possession, it is important because Dworkin takes this as one of his central examples of a ‘principle’ operating within the common law, a principle that illustrates the deep link between common law reasoning and broader understandings of morality. The Supreme Court of Canada recently discussed this principle but in quite different terms and this discussion shows how we can view such principles as examples of legality considerations rather than principles of morality.

Hall v Hebert concerned the doctrine of ex turpi causa non oritur actio and its use in barring recovery in tort.61 Justice McLachlin argued that many of the cases of ‘accepted application of the maxim’ were cases that illustrated the ‘narrow principle’ that ‘a plaintiff will not be allowed to profit from his or her wrongdoing’.62 However, she went on to state that a better understanding of the basis of the maxim is that it prevents introducing ‘an inconsistency in the law’ by forcing the court to say that the same act is both legal and illegal.63

Can this account of illegality and wrongdoing account for Riggs v Palmer? There are two main threads to the decision in Riggs v Palmer: a discussion of the equitable construction of the statute and a discussion of common law maxims regarding wrongdoing.64 What is interesting is that both involve, in broad contours, a similar set of considerations to those outlined by Justice McLachlin in Hall v Hebert. With respect to the statutory interpretation point, the court framed its concerns in terms of contradiction with common reason,65 and with the very point of laws pertaining to wills—to secure the ‘orderly, peaceable and just devolution of property’.66 In relation to the common law maxims, the court pointed to the direct relationship between the murder and the inheritance. The grandson murdered his grandfather so that he could inherit before his grandfather could change his will. In permitting

60Riggs v Palmer 1889.

61Hall v Hebert 1993. The court extensively cites Weinrib 1976, although Weinrib did not explicitly endorse the integrity of the legal system rationale.

this, the court would sanction murder as a means of acquiring title, which, in turn, would contradict the very idea of the legal acquisition of title.

Even if I deny the significance of morality in common law reasoning in Dworkin’s framework of Herculean justification, this does not mean that it does not arise in other ways. My claim, however, is that these other ways should also be understood within a framework of legality, or the rule of law, and not as a set of additional considerations whose significance is to be understood independently of this framework. Let me provide two examples.

The first is the idea of consistency within the law. Dworkin refers to this as the dimension of ‘fit’ and argues that its central ‘political’ concept is procedural fairness.67 But consistency in the law is one of Fuller’s principles of legality68 and is not necessarily best classified as ‘procedural’ but certainly as part of the formal and structural elements of the practice of law as outlined previously. In mature liberal democratic legal systems, law is never a matter of only common law decisions, even in areas of ‘private’ law like property. Instead, there is a mixture of common law and statutes and the two must be interpreted in a manner that maintains consistency in the system as a whole. Moreover, there is nothing in my account here that suggests that a legislature cannot take into account general ideas of justice in determining the norms of legislation. If we put these two ideas together, we can see that what I have been calling extra-legal ideas can enter into legal reasoning even when the question is not about the direct application of a particular statute. One example of this would be contemporary discussions of ‘public policy’ in cases where the courts must determine whether to invalidate a particular provision on the grounds of being contrary to public policy.69 In determining what public policy amounts to, courts look to statutes and constitutional texts.70

A second way in which extra-legal considerations, including morality, enter into legal reasoning within a framework of legality is in relation to the idea of followability. Laws must be followable. This connects with other ideas of legality such as publicity and non-retroactivity as aspects of the core rule of law idea that law should guide individuals and permit them to plan their activities in light of their legal liabilities and legal powers. The common law has always been concerned with how the law operates on the ground, in light of the actual social practices and expectations of communities. There is no reason why the judges cannot take such considerations into account, in order to ensure the actual conditions of followability. However, it would be a mistake to think that such considerations import broader ideas of justification into common law reasoning for their normative significance lies in their service to the values of legality.

67Dworkin 2004, 25.

68Fuller put the point narrowly, in terms of avoiding contradictions in the law.

69The provision could be a condition, a covenant, a term of a trust, etc.

70See e.g. Canada Trust Co. v Ontario Human Rights Commission 1990.