Post by Henry Smith
In his post, Eric Claeys introduces a couple of important forthcoming articles. I welcome these contributions to the already extensive “debates” over property theory. These articles are a real advance in the morally oriented property theory literature. I’d like to focus how they bring to that literature considerations that are more prominent in the functionalist literature than Eric’s article might lead one to believe.
By seeing property as an artifact, Eric is making room for a distinction I think is important to property theory: the purpose of property and the devices it uses to serve them. Much of the normative literature in property conflates the two, leading the commentary to circle endlessly around questions like whether the right to exclude is “core” and how “use” should be built into property law, among others.
Eric recognizes that what he calls “refined” exclusion views (for an early version, see here) go some way to accommodating devices like easements and mortgages. He claims that notions of governance – strategies that delineate property rights based on proxies more closely aligned with use than is the case with exclusion – do not explain the property status of such devices. I disagree. What makes governance a property institution is that it still keys off things. At the same time in doing that in a more fine-grained way it resembles other non-property devices like contract and tort, not to mention regulation, a great deal more than classic trespass-style exclusion. Nuisance, covenants, zoning, and the like are all instances of governance. Easements fall somewhere in between exclusion and governance. I am open to the idea that property has some unique normative function, but I think that function is still going to relate to things. After all, contracts are artifacts (see here) and they can relate to things too. Not every contract right dealing with things is a property right.
More generally, let me suggest that Eric’s recent work is compatible with New Institutional Economics, a broad framework I have adopted. NIE is all about institutions, and property can be fruitfully analyzed functionally as an artifact within such a framework (see here, here, and here). Overall, the NIE exclusion-governance theory of property allows for all the nuance Eric desires, even with respect to fluid property like water rights and intellectual property (see this chapter in the Oxford Handbook of Law and Economics).
Although it is a subject for another post, I believe that work on private law is beginning to show signs of convergence. As Andrew Gold and I argue, external and functionalist approaches on the one hand and internal and interpretivist accounts on the other are moving closer together as they grapple with the complexity of the relations falling under institutions like property law. Eric’s papers are a welcome sign of this desirable development.