The Contested Commitments of Property

Abstract:     
The means by which property organizes human behavior and social life is the subject of profound and heated debate. On one side, information theorists emphasize that property works in rem, using standardized signals to tell all the world to keep off things owned by others. On the other side, progressive theorists emphasize property’s capacity to promote human flourishing, respect for human dignity, Aristotelian virtue, or democratic governance. The divide between these two schools of thought represents the most vital dispute in a quarter-century of property scholarship, and it seems likely to preoccupy academics (and their students) for at least another generation.

This paper claims that debates between informational and progressive scholars, despite their prominence, are not adequately understood. Such debates currently center on whether the right to exclude is fundamental to property law. This issue plays out doctrinally in arguments over whether trespass is property’s paradigmatic rule, and metaphorically in arguments over whether exclusion rights, as opposed to human relationships, lie at property’s “core.”

By contrast, this paper suggests that academics’ singular focus on exclusion has obscured even deeper questions about property’s stability, its institutional mechanism for change, and its very status as a distinctive field of study. Rather than pursuing unproductive controversies over what lies at property’s “core” and “periphery,” this paper presents a different metaphorical contest as a more accurate account of the issues in modern property law. Information theorists employ the metaphor of property as a machine - a machine that, with minimal tinkering, has produced a good-enough social ordering and will generally continue to do so. This mechanical metaphor is inconsistent with progressive theorists’ view of property as a conversation. The progressives’ conversation metaphor expresses the view that we need to continually question whether the system is good enough, that we need to openly debate the quality of the human relationships that property produces, and that we must revise property rules that fail to fulfill our underlying value commitments. This metaphorical contest is important doctrinally because it reflects conflicting views about whether we can ever unreflectively trust property rules to express our values. “Machine” and “conversation” suggest very different visions of how much faith we should have in our existing system of property, of whether it is good enough, and of whether we can trust ourselves to improve it.

Keywords: Property, Exclusion, Right to Exclude, Trespass, Information Theory, Progressive Theory, In rem, Metaphor, Core, Periphery

JEL Classifications: K11

Accepted Paper Series