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A LIBERAL THEORY OF PROPERTY

Property enhances autonomy for most people, but not for

all. Because it both empowers and disables, property
requires constant vigilance. A Liberal Theory of Property
addresses key questions: How can property be justified?
What core values should property law advance, and how
do those values interrelate? How is a liberal state obligated
to act when shaping property law? In a liberal polity, the
primary commitment to individual autonomy dominates
the justification of property, founding it on three pillars:
carefully delineated private authority, structural (but not
value) pluralism, and relational justice. A genuinely liberal
property law meets the legitimacy challenge confronting
property by expanding people’s opportunities for individ-
ual and collective self-determination while carefully
restricting their options of interpersonal domination. The
book shows how the three pillars of liberal property
account for core features of existing property systems,
provide a normative vocabulary for evaluating central doc-
trines, and offer directions for urgent reforms.

Hanoch Dagan is the Stewart and Judy Colton Professor

of Legal Theory and Innovation and Director of the
Edmond J. Safra Center for Ethics at Tel Aviv University.
Dagan has written seven books across the landscape of
core private law topics, including Property: Values and
Institutions (2011) and The Choice Theory of Contracts
(2017), and has published more than eighty articles in
major law reviews and journals. He has been a visiting
professor at Yale University, Columbia University, the
University of Michigan, Cornell University, the University
of California, Los Angeles, and the University of Toronto
law schools.
A Liberal Theory of Property
Hanoch Dagan
Tel Aviv University
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Subjects: LCSH: Property–Philosophy. | Property–Political aspects. | Liberalism.
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For Noa, Maya, and Tomer
CONTENTS

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page xi

1 Liberal Property . . . . . . . . . . . . . . . . . . . . . . . . . 1
From Autonomy to Property . . . . . . . . . . . . . . . . . . . . . . 1
Carefully Delineated Private Authority. . . . . . . . . . . . . . . . 4
Structural Pluralism . . . . . . . . . . .
. . . . . . . . . . . . . . . . 6
Relational Justice . . . . . . . . . . . .
. . . . . . . . . . . . . . . . 7
Against the Current . . . . . . . . . . .
. . . . . . . . . . . . . . . . 9
A Brief Roadmap . . . . . . . . . . . .
. . . . . . . . . . . . . . . 10

2 Some Basics . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Property Theory As Legal Theory. . . . . . . . . . . . . . . . . . 13
Property Theory As Interpretive Theory . . . . . . . . . . . . . . 16
Property and Property Types . . . . . .. . . . . . . . . . . . . . 19
Property As a Category of Thinking. . .. . . . . . . . . . . . . . 23
Property and Contract . . . . . . . . . .
. . . . . . . . . . . . . . 25
Resources and Relations . . . . . . . . .
. . . . . . . . . . . . . . 26
Form and Substance . . . . . . . . . . .
. . . . . . . . . . . . . . 31
Liberal Polity . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . 35

3 Autonomy and Private Authority . . . . . . . . . . . . . . . 41

From Independence to Self-Determination . . . . . . . . . . . . . 42
Property and the Promotion of Autonomy . . . . . . . . . . . . . 44
Ultimate, Intrinsic, and Instrumental Values . . . . . . . . . . . . 46
Personhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Utility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Autonomy As Side Constraint . . . . . . . . . . . . . . . . . . . . 58
The Powers of Property . . . . . . . . . . . . . . . . . . . . . . . 60
Justifying Property . . . . . . . . . . . . . . . . . . . . . . . . . . 62

vii
viii Contents

Risking Panglossianism? . . . . . . . . . . . . . . . . . . . . . . . 67
Inherent Limitations of Property’s Power . . . . . . . . . . . . . . 68
Autonomy and Distribution . . . . . . . . . . . . . . . . . . . . . 71
Challenge of Neutrality . . . . . . . . . . . . . . . . . . . . . . . . 75

4 Property’s Structural Pluralism . . . . . . . . . . . . . . . . 79

Variety of Property . . . . . . .
. . . . . . . . . . . . . . . . . . . 79
Property Governance . . . . . .
. . . . . . . . . . . . . . . . . . . 82
Commons Property . . . . . . .
. . . . . . . . . . . . . . . . . . . 84
Multiplicity and Autonomy. . .
. . . . . . . . . . . . . . . . . . . 89
Nozick’s Utopia . . . . . . . . .
. . . . . . . . . . . . . . . . . . . 93
Law’s Role . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . 96
Blackstonian Ownership . . . .
. . . . . . . . . . . . . . . . . . . 100
Developing an Adequate Rangeof Types . . . . . . . . . . . . . . 102
Missing Types . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . 106
Numerus Clausus . . . . . . . .
. . . . . . . . . . . . . . . . . . . 110

5 Property’s Relational Justice . . . . . . . . . . . . . . . . . 114

Kantian Property . . . . . . . . . .
. . . . . . . . . . . . . . . . . 115
Mission Impossible . . . . . . . . .
. . . . . . . . . . . . . . . . . 118
Mission Undesirable . . . . . . . .
. . . . . . . . . . . . . . . . . 122
Relational Justice . . . . . . . . . .
. . . . . . . . . . . . . . . . . 126
Relationally Just Private Authority .
. . . . . . . . . . . . . . . . . 128
Public Accommodations . . . . . .. . . . . . . . . . . . . . . . . 131
Fair Housing. . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . 135
Owners’ Responsibilities . . . . . .
. . . . . . . . . . . . . . . . . 139
Unjust Property Types . . . . . . .
. . . . . . . . . . . . . . . . . 142

6 Making Property Law . . . . . . . . . . . . . . . . . . . . . 148

Property’s Core and the Institutional Question .
. . . . . . . . . . 149
Performance . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . 151
Legitimacy . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . 155
Both Legislatures and Courts . . . . . . . . . .
. . . . . . . . . . 158
Property and the Rule of Law . . . . . . . . . .
. . . . . . . . . . 159
Guidance . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . 161
The Birth of Common-Interest Communities . . . . . . . . . . . 163
Structural Pluralism and Rules . . . . . . . . . .
. . . . . . . . . . 165
Informative Standards . . . . . . . . . . . . . .
. . . . . . . . . . 166
Constraint . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . 168
Revisiting Shelley v. Kraemer . . . . . . . . . . .
. . . . . . . . . . 170
Contents ix

Liberal Property and the Rule of Law . . . . . . . . . . . . . . . . 172

The Human Right to Property . . . . . . . . . . . . . . . . . . . . 173
The Global Land Rush . . . . . . . . . . . . . . . . . . . . . . . . 176

7 Just Markets . . . . . . . . . . . . . . . . . . . . . . . . . . 179

What Is a Market? . . . . . .. . . . . . . . . . . . . . . . . . . . 180
Property and Markets. . . . .. . . . . . . . . . . . . . . . . . . . 183
Autonomy-Based Markets? . . . . . . . . . . . . . . . . . . . . . . 185
Two Roles . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . 189
Structural Pluralism . . . . . .
. . . . . . . . . . . . . . . . . . . . 193
Relational Justice . . . . . . .
. . . . . . . . . . . . . . . . . . . . 195
Changing Plans . . . . . . . .
. . . . . . . . . . . . . . . . . . . . 200
Incomplete Commodification . . . . . . . . . . . . . . . . . . . . 203
Markets and Labor . . . . . .. . . . . . . . . . . . . . . . . . . . 207

8 Property Transitions . . . . . . . . . . . . . . . . . . . . . 210

Property and Time . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Vulnerability and Stability across Time . . . . . . . . . . . . . . . 210
The Transition Intuition . . . . . . . . . . . . . . . . . . . . . . . 212
Lucas’s Compact . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
Rule of Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
Two Unacceptable Pacts . . . . . . . . . . . . . . . . . . . . . . . 220
Limits to the Libertarian Pact . . . . . . . . . . . . . . . . . . . . 223
Limits to the Progressive Pact . . . . . . . . . . . . . . . . . . . . 225
The Liberal Pact . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Boundaries to the Liberal Pact . . . . . . . . . . . . . . . . . . . . 231
Reconstructing Takings Law . . . . . . . . . . . . . . . . . . . . . 236

9 Afterword . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
PREFACE

In my work on property over many years, I developed two themes.

One is that rather than revolving around a Blackstonian core of “sole
and despotic dominion,” property law is structurally pluralistic, mean-
ing it assumes many diverse forms, each with its own internal regime of
property governance. The other is that property at times implies – from
within rather than as an external constraint – limitations to exclusion
and even some rights to inclusion.
In recent years, I have come to realize that many of my earlier
discussions of both these themes (pluralism and inclusion) as pre-
sented in Property: Values and Institutions (Oxford University Press,
2011) are incomplete because all begin from the middle. A Liberal
Theory of Property solves this problem by developing a missing funda-
mental premise – the ultimate justification of both themes. It thus
places them on firmer ground, thereby refining, extending, and, to
some extent, also revising my earlier understanding of property. Its
ambition, however, aims higher.
This book argues that property’s structural pluralism and the sig-
nificance of the right to be included – or, more generally, property’s
compliance with relational justice – are two necessary pillars of a
genuinely liberal conception of property, founded on the ultimate value
of personal self-determination. A Liberal Theory of Property returns the
analysis to the mainstream twentieth-century political philosophy of
liberalism – a tradition enhancing self-determination that is almost
absent from property theory today. As such, it offers a coherent and
robust vision of property in a liberal society. (I use the terms “liberal”
and “liberalism” in their denotation in political philosophy rather than
in that common in American or European public discourse, where they

xi
xii Preface

are respectively associated – confusingly enough – with the political left

and the political right.)
Property should be understood in structurally pluralistic terms
because only in those terms can it be conducive to autonomy. We
should cultivate the heterogeneity of our existing property law because
the multiplicity of property types facilitates the rich diversity of inter-
personal relationships needed for adequate self-determination.
A repertoire of property types creates a menu of viable opportunities
for both individual and collective self-determination. Facilitating this
autonomy-enhancing pluralism through law is crucial because collect-
ive action problems, bounded rationality, and cognitive failures under-
mine many types of interactions and, consequently, people’s ability to
pursue their own conception of the good.
A similar analysis applies to the right to be included, which I now
understand as one aspect of the prescription of relational justice, namely,
reciprocal respect for self-determination. Thus, fair housing rules that
prohibit discrimination in the sale or rental of residential dwellings, for
example, are not external to property law. Interpersonal discriminatory
practices are objectionable per se, regardless of whether the state takes
care of its obligations of distributive justice and democratic citizenship.
Refusing to consider a potential house buyer merely because of her skin
color, for example, fails to respect the individual on her own terms.
Property law must not (and genuinely liberal property does not)
authorize social relationships that reject the equal autonomy of the
person subject to discrimination. The limits that property law sets on
an owner’s right to exclude – as well as the burdens and obligations that
accompany ownership in other contexts – reflect liberal property’s
underlying commitment to reciprocal respect for self-determination.
I will argue that, in order to be legitimate, property is to be premised
on a fundamental commitment to autonomy as self-determination or
self-authorship. This commitment explains and justifies both the pri-
vate authority that characterizes all property types and their inherent
limitations: whereas property simpliciter is private authority, the private
authority of liberal property is carefully delineated and circumscribed
by its service to owners’ autonomy. The commitment to self-
determination also explains why a genuinely liberal property law must
be both structurally pluralistic and committed to relational justice.
Preface xiii

This autonomy-based theory, in which property is founded on the

three pillars of carefully delineated private authority, structural pluralism,
and relational justice, is different from some orthodox liberal under-
standings of property. And yet, as I hope to show in these pages, it is
also firmly grounded in liberalism’s most fundamental commitments.
Finally, this autonomy-based theory of property also turns out to be
more faithful to the practice of property than its counterparts.
This book does not attempt to offer a sustained critique of these
alternative theories, some of which I have discussed at length else-
where. Rather, my ambition is to offer a concise articulation and
defense of the autonomy-based theory of property I have just sketched.
In order to accomplish this mission, I explore the implications that the
conception of autonomy as self-determination entails for property.
I also address some important challenges confronting an autonomy-
enhancing conception of property. Some of these challenges are built
into this conception: insufficient or unjust property types are blemishes
in the law that the theory helps to highlight, as are property types
legally granting authority to owners beyond the scope required for their
self-determination. Other challenges emerge once we recognize the
complex role that law plays in the ideal of the liberal conception of
property and as we try to situate this ideal within the dynamic market-
based environment typical of modern societies.
This book shows how property law can enhance individual auton-
omy while also facing these challenges. Like other interpretive theories
of law, it offers a perspective for presenting existing law in its best light,
which, as usual, can be helpful in improving understanding, applica-
tion, and refinement of the actual law. It also generates some proposals
for reforming the law to bring it closer to its implicit (autonomy-
enhancing) ideals.
Some sections of this book draw on my previous writings, though at
times with significant revisions, and I gratefully acknowledge permis-
sion for including here from Pluralism and Perfectionism in Private Law,
112 Colum. L. Rev. 1409 (2012); Doctrinal Categories, Legal Real-
ism, and The Rule of Law, 163 U. Pa. L. Rev. 1889 (2015); Inside
Property, 63 U. Toronto L.J. 1 (2013); Property’s Structural Plural-
ism: On Autonomy, the Rule of Law, and the Role of Blackstonian Owner-
ship, 3 Brigham-Kanner Prop. Rts. Conf. J. 27 (2014); The
xiv Preface

Utopian Promise of Private Law, 65 U. Toronto L.J. 392 (2016); The

Public Dimension of Private Property, 24 King’s L.J. 260 (2013); The
Human Right to Private Property, 18 Theoretical Inq. L. 391
(2017) (with Avihay Dorfman); Just Relationships, 116 Colum.
L. Rev. 1395 (2016) (with Avihay Dorfman); Liberalism and the
Private Law of Property, 1 Crit. Anal. L. 268 (2014); The Challenges
of Private Law, in Private Law in the Twenty-First Century
67 (Kit Barker et al. eds., 2017); Judges and Property, in Intellec-
tual Property and the Common Law 17 (Shyamkrishna
Balganesh ed., 2013); Private Law Pluralism and the Rule of Law, in
Private Law and the Rule of Law 158 (Lisa Austin & Dennis
Klimchuk eds., 2014); Markets for Self-Authorship, 28 Cornell J.L.
& Pub. Pol’y 577 (2018); Why Markets? Welfare, Autonomy, and the
Just Society, 117 Mich. L. Rev. 1289 (2019); Liberalism and the
Commons, 29 Cornell J.L. & Pub. Pol’y 527 (2020).
These papers benefited from comments by many colleagues as well
as by participants at the Cecil A. Wright Memorial Lecture at the
University of Toronto Faculty of Law; the conference on “Moral
Values in Private Law” at King’s College London; the conference on
“Private Law Theory” at Villa Vigoni, Lake Como; the conference on
“Private Law and the Basic Structure of Society” at the University of
Amsterdam; the symposium on “Sovereignty and Property” at the
Columbia Law School; the symposium on “The New Doctrinalism”
at the University of Pennsylvania Law School; the conference on “The
Public/Private Interface in Property” at King’s College London; the
conference on “The Core of Property” in Frankfurt; the workshop on
“Private Law and Public Order” at the Yale Law School; the sympo-
sium on “Intellectual Property and the Common Law” at the Univer-
sity of Pennsylvania Law School; the conference on “Private Law and
The Rule of Law” at the University of Toronto Faculty of Law; the
conference on “The Ethical Challenges of the Market” at the Cornell
Law School; the symposium on “The Core Principles of Expropriation
Law” in The Hague; and workshops in Amsterdam, Bar-Ilan, Boston,
Cardozo, Columbia, Connecticut, Cornell, Fordham, Georgetown,
Harvard, Hebrew, IDC, Maryland, Northeastern, NYU, Ramat-
Gan, Seton Hall, Tel Aviv, Trento, UCLA, Utrecht, William & Mary,
and Yale Law Schools.
Preface xv

For very helpful comments on this manuscript or parts of it, I am

very grateful to Gregory Alexander, Lisa Austin, Aditi Bagchi, Stuart
Banner, Itzik Benbaji, Mitch Berman, Nick Blomley, Andrew Botterell,
Alan Brudner, Peter Cane, Chiara Cordelli, Nestor Davidson, Avihay
Dorfman, Oran Doyle, Neil Duxbury, David Dyzenhaus, Fabrizio
Esposito, Chris Essert, Bill Ewald, Lee Fennell, Tali Fisher, Dalit
Flaiszhaker, Sheila Foster, Rachel Friedman, Chaim Ganz, Maytal
Gilboa, Andrew Gold, David Grewal, Mateusz Grochowski, Andrew
Halpin, Sarah Hamill, Ori Herstein, Lisa Herzog, Martijn Hesselink,
Sonia Katyal, Larissa Katz, Dennis Klimchuk, Roy Kreitner, Tami
Kricheli-Katz, Yael Lifshitz, Adam MacLeod, Menny Mautner, Colin
Mayer, Åsbjørn Melkevik, Tom Merrill, Paul Miller, Attila Mráz, Guy
Mundlak, Szymon Osmola, Eduardo Peñalver, James Penner, Stephen
Perry, Katharina Pistor, David Posen, Robert Post, Aloke Prabhu,
Arthur Ripstein, Carol Rose, Arie Rosen, Itamar Rosensweig, Kineret
Sadeh, Irit Samet, Amy Sepinwall, Chris Serkin, Molly Shaffer Van
Houweling, Assaf Sharon, Joe Singer, Henry Smith, Ohad Somech,
Theodosia Stavroulaki, Shai Stern, Simon Stern, Giacomo Tagiuri,
Sabine Tsuruda, Laura Underkuffler, Konstanze von Schütz, Ernie
Weinrib, Leif Wenar, Katrina Wyman, Mikhaïl Xifaras, Tal Zarsky,
Lorenzo Zucca, and participants at the Singapore Symposium in Legal
Theory; the Private Law Group’s Annual Public Lecture at Trinity
College Dublin; the conference on “Property Rights and Human
Rights: New Possibilities in an Age of Inequality” at Monash Univer-
sity; the conference on “Property Works in Progress” at Boston Uni-
versity; the International Summer School of The Centre for the Study
of European Contract Law; the workshop of the Institute for Law and
Philosophy at the University of Pennsylvania; the Legal Theory Work-
shop at the University of Toronto Faculty of Law; and a joint session of
the Advanced Property and Trusts Seminar and the Property Law
Discussion Group at the University of Oxford Faculty of Law.
Particular thanks go to my longtime coauthors Michael Heller and
Avihay Dorfman, whose contributions to this book are evident in many
of its pages. Whereas only Chapter 8 is officially coauthored with
Michael, a few other core sections in Chapters 2–4 rely on our previous
joint work on both The Choice Theory of Contracts (Cambridge Univer-
sity Press, 2017) and on the articles The Liberal Commons and Conflicts
xvi Preface

in Property. Avihay’s fingerprints are no less conspicuous. Most of

Chapter 5 draws heavily on our articles on relational justice (notably
Just Relationships), and a few important sections in both Chapters 3
and 6 follow our Human Right to Private Property piece. Coauthorship
is a subtle enterprise and I feel particularly thankful for having had
Michael and Avihay in this role. I am deeply indebted to both of them
for sharing with me their wisdom, insights, and good judgment, and for
numerous exchanges of both ideas and drafts that were essential for
refining the thesis of this book.
Finally, warm thanks to Batya Stein for exceptional editorial assist-
ance and to my editor Matt Gallaway for shepherding this project from
proposal to publication.
 1 LIBERAL PROPERTY

A long tradition in Western political thought connects property and

liberalism. John Locke is probably the most familiar liberal theorist to
give property a place of honor in his account of the state. But Locke,
whose property theory is fraught with difficulties,1 is certainly not the
only one. The right to property is often understood as one of the
necessary implications of the status of individual natural persons as
free and equal, which may explain its inclusion in the Universal Dec-
laration of Human Rights.2
But what do we mean when we invoke liberalism’s core commit-
ments to freedom and equality as property’s normative premise, and
how do these underpinnings impact property law? This introductory
chapter provides a short (and necessarily partial and sketchy) synopsis
of my answer to this question, which the following chapters elaborate,
refine, and defend.

FROM AUTONOMY TO PROPERTY

The core claim of this book is that an analysis of property needs to

start from the mainstream liberal tradition of the past century, that is,
with a concern for individual autonomy, self-determination, and self-
authorship, ensuring to all of us as free and equal individuals the
possibility of writing and rewriting our own life stories. This deep
and widely shared commitment to people’s most fundamental right
to self-determination appropriately dominates the central political,
legal, and philosophical debates. In more recent times, however, this
tradition has, surprisingly, almost disappeared from works on private
law generally and on property law specifically.3

1
2 Liberal Property

Property is not the most crucial precondition of personal self-

determination; health, education, and means of subsistence are surely
more basic. Nonetheless, property does play a distinctive and irredu-
cible role in empowering people. It provides them some temporally
extended control over tangible and intangible resources, which they
need in order to carry out their projects and advance their plans. The
authority that property confers on owners facilitates their ability to
determine and pursue their own goals.
Appreciation of property’s contribution to autonomy highlights the
most fundamental failure of the prevalent view that property is a means
for the maximization of welfare. If the private authority of owners
serves as a significant self-determination resource, property law cannot
be solely dependent on its contribution to the social good. Some sphere
of private ownership is imperative in a liberal law even if – say, due to
technological advances – eliminating ownership would be welfare-
maximizing.
Property’s contribution to self-determination is also vital for an
understanding of law’s requirement that others respect an owner’s
authority, which is by no means obvious. Quite the contrary. Without
suitable justification, law’s demand (or even expectation) that non-
owners – whose right to self-determination is equally important – defer
to owners’ authority regarding what to do with an object seems arbi-
trary and unjust.
The class of nonowners, like that of owners, encompasses everyone:
After all, everyone is an owner of something. But this truism does not
imply that property is always justified or that all property systems are
equally justified. Rather, the privileged authority invested in owners
through property – the normative power they have over others –
implies that property law needs to be answerable to these others – the
subjects of this authority. The interpersonal vulnerability generated by
property suggests that this justificatory standard is quite onerous.
While not everyone needs to accept every individual claim to every
particular resource, showing that everyone should accept some
abstract idea of property is not enough either. For a property system
to be justified, its animating principles must be acceptable.4
Because the private authority of owners plays a key role in ensuring
individual autonomy, property can be justified if property law not only
From Autonomy to Property 3

relies upon but is also guided by our foundational duty to respect each
other’s self-determination. Thus, while property writ large is private
authority simpliciter, liberal property conceives of that authority as a
means of self-determination. In other words, whereas property systems
assign private authority over resources in numerous ways, property law
can face its formidable justificatory challenge only if it carefully follows
property’s autonomy-enhancing function. Accordingly, liberal prop-
erty conceptualizes property as an empowering device in the service of
people’s self-determination. It understands this contribution to self-
determination as property’s telos.
Property systems vary widely in the way they allocate normative
powers to people and cannot be expected to perform uniformly con-
cerning human empowerment. Some of these differences reflect vary-
ing environmental, economic, social, cultural, and technological
circumstances. But the justifiability of any particular property system
is still a function of its performance in light of these circumstances
vis-à-vis property’s telos, namely, its support for people’s autonomy. In
this book, I unpack this proposition and study its implications, but one
essential clarification is required at the outset: Performing this func-
tion, though necessary, may not be sufficient.
Property cannot be adequately justified simply by reference to the
benefits by definition common to all, which derive from the potential of
being an owner in a property system that, as a whole, is autonomy-
enhancing. Instead, in a liberal polity, people have a right to the
effective realization of property’s autonomy-enhancing potential.5
This requirement implies that property must rely on a robust back-
ground regime that guarantees the material, social, and intellectual
preconditions of self-authorship to everyone, together with the author-
ity typical of full private ownership.
Specifying the details of such a background regime exceeds the
scope of this book – a theory of liberal property is neither a blueprint
nor a full-blown theory of justice. The significance of a liberal theory
of property, however, goes beyond the intricacies of property law.
Property is a keystone of our economic, social, and political system,
and the impact of how we shape it and understand it is therefore far-
reaching, as my discussion of markets, especially labor markets, will
clearly show.
4 Liberal Property

Consequently, the commitment to individual autonomy in a liberal

polity dominates not only the justification of property but also its
constitution and thus its most fundamental legal features. Private
authority cannot possibly exhaust the idea of liberal property because
a genuinely liberal property law proactively expands people’s oppor-
tunities for both individual and collective self-determination, while
carefully restricting their opportunities for interpersonal domination.
A liberal property system thus needs more than one form of prop-
erty, offering prospective owners (and other property right holders) a
choice of options for both individual and communal self-
determination, while constantly remaining attentive to the concerns
of nonowners. These concerns are intrinsic to property because the
instantiation or expansion of property necessarily limits nonowners’
liberty. Hence, liberal law should ensure both that no private authority
can be claimed in excess of what is required for owners’ self-
determination, and that such authority is consistent with the self-
determination of others.
In a genuinely liberal polity, then, law must be made to rest on the
three pillars of the autonomy-enhancing conception of property:
1. Circumscription of owners’ private authority to ensure that it
follows property’s contribution to self-determination
2. Creation of a structurally pluralistic inventory of property types
offering people real choice
3. Compliance of owners’ powers with relational justice to verify that
property does not offend the principle of reciprocal respect for self-
determination substantiating its legitimacy
A liberal theory of property highlights its autonomy-enhancing telos
and studies its implications in order to push property law toward the
fulfillment of this implicit promise. I have made that my mission in
this book.

CAREFULLY DELINEATED PRIVATE AUTHORITY

Self-determination involves planning. Although people can obvi-

ously change their plans and autonomous persons should be entitled to
Carefully Delineated Private Authority 5

do so, planning is intrinsic to the right to self-determination.6 In turn,

the ability to plan requires some horizon of action, which is facilitated
by the temporally extended private authority over resources that prop-
erty typifies. Thus, property is conducive to people’s ability to pursue
meaningful projects and goals, be it on their own or with the cooper-
ation of others.
Insofar as property’s private authority advances the autonomy of
owners along these lines, they can justifiably expect others to respect it
and the law rightly vindicates this expectation. Property’s private
authority – the interpersonal power it generates – is thus justified by
reference to its potential contribution to the owners’ self-
determination. The private authority established by any given type of
property, therefore, needs to be adjusted to this contribution. Carefully
delineated private authority is the first pillar of liberal property.
Certain types of property contribute to self-determination only
indirectly, and a liberal property law needs to structure these types to
prevent them from involving an exacting private authority. Circum-
scribing the private authority that these property types instantiate,
then, does not rely on public requirements from owners to support
state responsibilities but follows directly from the liberal justification
of property. Property’s private authority should be delineated so
that owners’ interpersonal power is indeed necessary for their self-
determination.
The paramount outcome of this principle is that the private author-
ity attached to commercial property types – notably to ownership of
means of production – must be narrowly circumscribed. A liberal
theory of property should not belittle the instrumental role of these
resources’ ownership as a means for satisfying people’s preferences
and promoting their welfare, but cannot ignore that private authority
over these resources has no freestanding value either. Hence, given that
private authority equals interpersonal power, an autonomy-enhancing
property law must be particularly vigilant in circumscribing this
power. This conclusion dramatically affects the scope of managerial
authority, and thus of workers’ rights, shaping the liberal idea of a just
labor market.
Finally, the combination of property’s immanent justificatory chal-
lenge and the truisms of changing circumstances and new needs and
6 Liberal Property

opportunities implies that liberal property must pay careful attention to

the requirement of dynamic changes in the configuration and distribu-
tion of property rights.7 As a result, liberal property needs to be closely
aware of property transitions that will invariably upset owners’ plans.
The temporal dimension of property’s autonomy-enhancing telos and
its ability to face up to its burdensome justificatory challenge is, as
I show toward the end of this book, vitally significant to the liberal
“property pact” underlying a liberal regime of property transitions.

STRUCTURAL PLURALISM

Property manifests itself in law in a nuanced, contextualized, and

multifaceted fashion. The profound heterogeneity of property types
causes difficulties for monistic theories that look for the structural core
of property. From an autonomy-based standpoint, however, this multi-
plicity is a virtue rather than a concern since it ensures an inventory of
alternatives from which people can choose. Structural pluralism is thus
a constitutive feature of a liberal property law, the second pillar of a
liberal conception of property.
Property law should be heterogeneous because there are many ways
in which property can support our self-determination, either on our
own or – quite often – with others. The internal life of property is
accordingly structured through sophisticated governance mechanisms
that facilitate various forms of interpersonal relationships, which would
not be possible without an enabling legal infrastructure. Think of
condos, co-ops, common-interest communities, joint tenancies, lease-
holds, and trusts as examples of the existing inventory of land-
ownership.
Awareness of property’s contribution to autonomy, then, implies
celebrating the pluralistic architecture of property law and its many
options. Instead of overemphasizing the common denominator of these
diverse types or marginalizing certain types as peripheral exceptions to
some stipulated core – say, the right to exclude – property is better
understood as an umbrella for a limited set of types. These types serve
as default frameworks of interpersonal interaction regarding various
resources. They thus need to be properly standardized and their
Relational Justice 7

interpretation and evaluation should, by and large, look to their specific

“local” animating principles.
At its best, this plurality of types enables property law to offer
varying balances between the different (intrinsic and instrumental)
values that property can serve – independence, personhood, commu-
nity, and utility – in diverse social settings and respecting a variety of
resources. Each of these property types constitutes a distinctive frame-
work of private authority; each offers its own recipe for some tempor-
ally extended control that people can have over a resource, either as
individuals or as members of a community of owners. When the law’s
menu of property types is sufficiently rich for each major sphere of
human action, it offers people a range of meaningful choices
for resource governance and co-governance that supports self-
determination.
The obligation of the liberal state to facilitate meaningful choices in
important spheres of life implies enabling people’s autonomy by ensur-
ing this intra-sphere multiplicity, namely, by actively shaping distinct
property types that function as partial functional substitutes. This obli-
gation is not a matter of strict demand-driven analysis, as an efficiency-
based account would have prescribed. Rather, property plays a crucial
role in delivering on the liberal promise of self-determination. The state
can betray this mission not only by having bad or too much property
law. The absence of law, or an attempt to limit property’s heterogen-
eity, will have the same effect. The law’s architects, then, are required
to develop more types of property, especially in the contexts of housing
and the workplace.

RELATIONAL JUSTICE

If property is indeed premised on our foundational duty of mutual

respect for self-determination, this duty must apply not only to non-
owners but also to owners. Law needs to be attuned to property’s effect
on self-determination in various contexts of people’s interactions as
nonowners. The impact of interpersonal contacts on self-
determination affirms and vindicates the claims of people – owners
8 Liberal Property

and nonowners alike – to mutual respect for self-determination, that is,

to relational justice, the third pillar of liberal property.
Relational justice is a conception of interpersonal rather than dis-
tributive justice that is notably different from corrective justice, which
stands for reciprocal respect for independence. Relational justice
focuses on the self-determination of nonowners, but need not, should
not, and indeed does not, override the self-determination of owners, an
outcome that would have been self-defeating. Relational justice does
not undermine the autonomy-enhancing private authority that prop-
erty creates. Homeowners, for example, are rightly shielded from legal
scrutiny of their invitation policy.
By contrast, systemically hierarchical property regimes – such as
feudalism, where even tenants under so-called free tenures are obliged
to perform services for their lords – represent clear violations of rela-
tional justice. Condemning feudalism and similarly repressive property
regimes is of course not very controversial and few property theories
would celebrate them.8 But grounding the objection to these regimes
on relational justice hints at the breadth and depth of the critical
implications ensuing from liberal property’s earnest commitment to
it. Relational justice limits owners’ authority and, at times, also entails
burdens and obligations.
Thus, the owners’ power of refusal to sell or lease, or to prevent
nonowners from entering their land or using their resources, must be –
and indeed is – constrained. Common-interest communities law,
landlord–tenant law, and the law of public accommodations, all recog-
nize nonowners’ claims to access and, more broadly, to respect.
Instances of discriminatory exclusion deny nonowners an equal right
to self-determination and should thus be viewed (at least prima facie)
as ultra vires, abusing the institution of property for a purpose that
contravenes its telos.
Similarly, the commitment of property law to relational justice also
explains and justifies some responsibilities incumbent on property
rights holders, such as specific burdens of mitigating accidental mis-
takes by nonowners. Neither the anti-discrimination prescription nor
these affirmative obligations depend on any kind of aggregate cost–
benefit analysis or on the balance between the right to property and any
other conflicting right. Relational justice is not a regulatory or
Against the Current 9

constitutional imposition and its prescriptions immediately follow from

the meaning of liberal property itself.

AGAINST THE CURRENT

These propositions, which I attempt to establish in these pages,

challenge some conventional views about the nature of property and its
liberal foundation. After the bundle-of-sticks picture of property
endorsed in the Restatement of Property had for decades been
regarded as the conventional wisdom,9 Blackstone’s conception of
property as “sole and despotic dominion”10 has been resurrected as
the regulative idea of private property.11 To be sure, no one seriously
thinks any longer that property always entails unqualified dominion.
(Blackstone himself did not think so either,12 even though this view of
property is by now intimately connected with his name.) Some theor-
ists, however, again argue that the right to exclude (or its cognates) is
the most defining feature of property. The Blackstonian conception
seems to be ingrained in the narrative of property,13 almost inviting the
claim that “the differentiating feature of a system of property [is] the
right of the owner to act as the exclusive gatekeeper of the owned
thing.”14
This dominion conception of property is closely related to the
Kantian understanding of property’s normative task. Property, in this
view, constrains others because it comprises the external means that a
person uses in setting and pursuing purposes, which implies that
“if someone interferes with your property, he thereby interferes with
your purposiveness.”15 In other words, if people are to be allowed
“to exercise their freedom by controlling external objects of choice,”
the objects are to be subjected to the sole discretion of the choosing
party so that all others are bound by the owner’s will.16
As the preceding preview indicates and the following chapters flesh
out, this (renewed) orthodoxy of property as a stronghold of interper-
sonal independence fails both descriptively and normatively. Descrip-
tively, the dominion understanding of property unduly disregards
property’s structural pluralism and property’s compliance with rela-
tional justice. These features of property are particularly conspicuous
10 Liberal Property

in contemporary society, where people live more closely together,

especially in urban environments. But they are also constitutive of
liberal property. The dominion conception of property obscures these
features as well as the inherent limitations of private authority in its
liberal rendition. Therefore, it is normatively disappointing as well.
Only by grounding property in liberalism’s fundamental commit-
ment to individual autonomy can we secure its legitimacy. Property
can, should, and in many respects already does enhance our auton-
omy, namely, the freedom to determine our own life in the context of
living with others. A liberal conception of property both justifies and
refines the (carefully delineated) private authority property instanti-
ates. Moreover, for liberal property, structural pluralism and relational
justice are neither discretionary additions to the private authority of
property nor external limitations to it. By founding property on
people’s right to self-determination, a genuinely liberal law insists on
property resting on the three pillars of carefully delineated private
authority, structural pluralism, and relational justice.

A BRIEF ROADMAP

A liberal theory of property shows how a foundational commitment

to autonomy justifies and shapes property law in a liberal polity, offering
(1) a legal theory for (2) property law in (3) a liberal polity. Chapter 2
refines this mission by elaborating on these three components. Having
done so, I turn in the next three chapters to my main task: exploring the
three pillars of a genuinely liberal property law – carefully delineated
private authority, structural pluralism, and relational justice. Some
readers may find that following this sequence is helpful, while others
may prefer turning to Chapter 2 only after reading Chapters 3–5.
Chapter 3 conceptualizes property as an empowering device crucial
to people’s self-determination. Property is a power-conferring insti-
tution that can only be legitimate if and insofar as the authority it
confers, which enables the instantiation of its intrinsic and instrumental
values, empowers us in our ultimate right to self-determination. Chap-
ter 3 refines this formidable justificatory challenge and its important
implications for the architecture of property and for the background
A Brief Roadmap 11

regime necessary for its legitimacy. It also explains why grounding

property on self-determination is neither perfectionistic nor offensive
to the principle of neutrality.
Chapter 4 focuses on structural pluralism, arguing that property’s
heterogeneity is both irreducible and constructive in a property system
centered on enhancing autonomy. This plurality of property types is
profound as well as a matter of principle. It is profound in that it
reflects fundamental differences between the core values animating
these property types and it is a matter of principle in that it serves
the liberal commitment to autonomy-enhancing pluralism. In conclu-
sion, Chapter 4 shows that this understanding of property’s plurality
provides opportunities for reform through support for innovative types
and rejection of the numerus clausus principle’s canonical
understanding.
Chapter 5 turns to the third pillar of liberal property: its commit-
ment to relational justice based on reciprocal respect for self-
determination. Rejecting the conventional division of labor between
public and private law, it argues that people’s interdependence and
their personal differences imply that the liberal commitment to self-
determination, and thus also to substantive equality, cannot be left out
of their interpersonal interactions. It then argues that liberal property
systems can accommodate commitments to both private authority and
relational justice.
Having set in place the three pillars of a liberal property theory, my
focus will shift to the theory’s institutional dimension. (The signifi-
cance of this dimension is clarified in Chapter 2.) Chapter 6 argues
that both the legislature and the judiciary should be responsible for
developing property law. It further maintains that, notwithstanding its
multiplicity and dynamism, a liberal conception of property is likely to
comply with the two core aspects of the rule of law: providing guidance
and restraining the power of officials. Finally, I claim that the
autonomy-based foundation of property also implies that (liberal)
property is a human right that bounds the power of judges and legisla-
tors and provides standing against governments and private parties.
Whereas Chapter 6 deals with the institutional context involved in
the creation of property types, Chapters 7 and 8 direct attention,
respectively, to the context they subsist in and to that of their
12 Liberal Property

transformation and extinction. Thus, Chapter 7 focuses on the market

that, given the central role of alienability in liberal property, is its
typical setting. Markets appear in different variations and an
autonomy-enhancing market, I argue, must assume a specific form.
Some of its characteristics echo the (by now familiar) features of liberal
property: guarantees that contract law (and not only property law) is
structurally pluralistic and complies with relational justice, and com-
mitment to a supporting background regime that ensures everyone’s
autonomy. Markets also raise additional challenges dealing mostly with
the autonomy of the future self and the risk that alienability might turn
into alienation, which a liberal conception of the market is required to
confront.
Finally, the core claim of Chapter 8 is that a liberal property law
endorses a principled bifurcation of the universe of property transi-
tions. Sudden dramatic changes undermine the contribution of prop-
erty to people’s ability to plan and should thus be treated as
compensable takings. Moderate and gradual regulatory changes, by
contrast, can be seamlessly accommodated since they do not threaten
property’s autonomy-enhancing function and are necessary for prop-
erty to face its ongoing justificatory challenge. Chapter 8 develops and
defends this “liberal property pact,” traces its legacy in both common
law tradition and Supreme Court jurisprudence, and investigates both
its boundaries and its potential contribution to the tortuous doctrine of
regulatory takings.

***
A liberal theory of property does not provide a description of
prevailing property law in any specific jurisdiction or a set of detailed
blueprints. Its aim is to face property’s legitimacy challenge by
developing the best justification for property and offering guidance as
to its proper constitution. This account of the liberal idea of property
hopes to open a conversation, inviting critics to refine it and revise it.
Readers who find the theory developed in these pages persuasive, will,
in turn, be able to use it in the critical assessment of specific property
regimes and in developing suitably contextualized schemes for their
reform.
 2 SOME BASICS

PROPERTY THEORY AS LEGAL THEORY

1. Property and Law. A credible theory of property needs to be a

legal theory. Readers who subscribe to Jeremy Bentham’s assertion that
“[p]roperty and law are born together, and die together,”1 may find the
truth of this proposition trivial. Although not a natural right, however,
property is not contingent in this strong Benthamite sense either. As
I maintain in Chapter 6, property is a convention that, all else being
equal, any autonomy-seeking polity is obligated to adopt.
This claim implies that the moral underpinnings of property do not
eliminate the constitutive role of law or of a law-like set of social norms.
By instantiating property rights, law goes beyond protecting people
from actual or potential threats that others may pose to their bodily
integrity. Property law proactively empowers people, expanding their
ability to act and interact in the world.
Property, then, imposes duties but, above all, confers power (see
Chapter 3). The normative powers that property confers are condu-
cive to its autonomy-enhancing telos. The respect that property com-
mands from other individuals and from the government, as well as the
various forms of co-governance that property types enable, are pivotal
in a liberal polity. Property’s duties, by contrast, are conceptually and
normatively secondary to its empowering role and, while important,
they derive from and are intelligible by reference to its powers.2
Property’s powers may be justified insofar as it is justified to expect
nonowners to submit to the authority of owners given its autonomy-
enhancing potential. The legitimacy of any property regime thus
depends, as noted, on how well it enhances autonomy. But the

13
14 Some Basics

implication is not that only the consequences of property’s normative

powers matter or that the relational structure of these powers is irrele-
vant. Indeed, liberal property’s relational justice derives precisely from
this relational structure. Nonetheless, the fact that property is essen-
tially power-conferring does imply that a proper investigation of prop-
erty’s legitimacy also necessitates an ex ante discussion about the ways
that property law can and should enhance people’s autonomy.
The evaluation of property’s success in achieving its autonomy-
enhancing end is qualitative rather than quantitative. It is not about
maximizing the extent of autonomy in the world but is nonetheless
teleological, searching for a system of property law intrinsically appro-
priate to an autonomy-friendly society.3 Hence, given that property
theory must investigate competing systems of property law (since law
can establish different inventories of property types and fine-tune the
rights of owners and nonowners in each type in different ways),
property theory is a species of legal theory.
2. Legal Theory. Legal theory focuses on the work of society’s coercive
normative institutions. It studies their traditions and the crafts typical of
their members while, at the same time, continuously challenging their
outputs by demonstrating their contingency and testing their desirability.
In performing some of these tasks, legal theory absorbs lessons from law’s
neighboring disciplines. But legal theory is more than a sophisticated
synthesis of relevant insights from these friendly neighbors because it also
focuses on classic jurisprudential questions about the nature of law, such
as the relationship between law’s normativity and its coerciveness and the
implications of its institutional and structural characteristics.4
This understanding of legal theory explains my extensive discus-
sion of property’s justificatory challenge that, in turn, (1) explicates the
need for careful delineation of property’s private authority; (2)
grounds property’s pillars of structural pluralism and relational justice;
(3) shapes the law governing property transitions as encapsulated in
“the liberal property pact” (the topic of Chapter 8).
Appreciating the irreducible role of law in property theory also
directs attention to the institutional dimension of property at the focus
of Chapter 6. This chapter investigates the proper division of labor
between legislatures and courts in developing property law, and asks
Property Theory As Legal Theory 15

whether the autonomy-enhancing conception of property – notably its

structural pluralism – threatens the rule of law. My answer is that it
does not. Rather the reverse: by offering relatively narrow, and thus
stable and internally coherent doctrinal categories, a structurally plur-
alistic property law actually provides effective guidance to the law’s
addressees, thus also effectively constraining the ability of officials to
exercise power.
Finally, engaging with the justification of property and with its
nuanced legal manifestations implies that, in this book, I need to draw
away from the overly abstract views of philosophers and of many social
scientists dealing with property, and from the more specific doctrinal
focus typical of legal scholarship, including mine.5 This explains both
my use of many doctrinal examples and their relatively brief treatment.
3. Justification and Design. The need to account for the intricacies of
current property law and explore potential avenues for its interpret-
ation and development is not merely a constraint on legal theorists,
which other academics theorizing about property have typically
ignored. Taking seriously the existing and potential legal doctrine helps
to refine an understanding of property more nuanced and normatively
appealing than the conventional (read dominion) one presumed in
many extra-legal accounts of it.6
One lesson of this book, then, is that just as legal theory benefits
from intellectual openness to law’s neighboring disciplines, legal theory
can – and in many contexts indeed should – provide these disciplines
with significant theoretical insights.7 Property theory is a prominent
example of this broad lesson, given property’s crucial role in many
nonlegal theories and analyses of both the market and the state. The
failure to take law seriously is particularly troublesome when manifest
in the most fundamental discussions of property, dealing with its
legitimacy. As I hope to demonstrate here, in order to critically interro-
gate property’s legitimacy, whether to celebrate it or condemn it,
theorists need to appreciate the richness and variability to be yielded
from its legal underpinnings. In other words, they must acknowledge
property theory as a legal theory.
The inverse conclusion is just as important: engaging with prop-
erty’s justificatory challenge must be a core feature of any acceptable
16 Some Basics

exercise of property design. This lesson explains my quarrel with many

functional accounts of property. These accounts presume that the
challenge of property’s justification has been met once and for all and
property theory can now set it aside to focus on the pragmatic task of
optimizing its operation, which typically invokes a utilitarian or some
other form of welfarist benchmark.8
These pragmatic concerns are appropriate and the functional ana-
lyses that address them are accordingly valuable. As I explain in
Chapter 3, I do not downplay the significance of satisfying people’s
preferences or of aggregate social welfare. But I do insist that, however
important, they are means to an end and, therefore, the system’s
performance must chiefly be assessed against this end. A liberal polity
aware of property’s onerous justificatory challenge is expected to be
particularly rigorous in ensuring that its property law is indeed
founded on the commitment to people’s autonomy.
In some limited contexts, this means that autonomy must function
as a constraint that trumps any other goals property could potentially
promote. A property system that undermines its own telos and justifi-
catory premise may thus become illegitimate. (Chapter 6 studies some
of the implications of perceiving such a system as violating property.)
But a view of autonomy as the linchpin of property’s legitimacy implies
that its role cannot be limited to gatekeeping. In a genuinely liberal
property law, autonomy must also play a major, albeit not an exclusive,
role in assessing the performance of existing doctrine and in guiding its
future development.9 As shown below, accommodating other con-
cerns, including functional ones, is not an unduly onerous task for an
autonomy-based theory of property, given its basic facilitative attitude.

PROPERTY THEORY AS INTERPRETIVE THEORY

There are various types of legal theories and thus various types of
property theories. This book offers an interpretive theory of property. It
distills a theoretical framework for existing property law in liberal
societies, which presents its doctrines in their best light. An interpretive
theory of law neither aims to unearth the historical roots of our existing
Property Theory As Interpretive Theory 17

practices nor to supplant them with wholly innovative ways of organ-

izing society.
An interpretive legal theory is situated between discovery and
invention.10 It builds on existing practices and thus reaffirms much
of existing law. An interpretive theory of property, however, is not a
descriptive exercise and thus cannot be expected to explain every
extant feature of property law. An interpretive theory provides an
account of our legal practices that suggests a new perspective on the
law and, in turn, inevitably upsets some conventional wisdom by
pointing to feasible improvements of the law and, at times, even to
urgent reforms necessary to ensure its legitimacy. It also highlights new
questions that make up a research agenda for future reformers and
scholars.
In other words, although interpretive legal theories should be
falsifiable, making them so is usually not an easy task, and that is a
virtue rather than a vice.11 Thus, the liberal theory of property
offered in this book is falsifiable in the sense that one can imagine
systems wherein one or more of the three pillars of liberal property –
carefully delineated private authority, structural pluralism, and rela-
tional justice – is clearly missing. (Feudalism, as noted, is a good
example.) But the liberal theory of property is not easily falsifiable
because interpretation implies reconstruction, which necessarily
involves marginalization and demarginalization of various features of
the system.12 Finally, the fact that the theory is not easily falsifiable is a
virtue – it can then serve as the normative ideal, or as the compass that
offers internal resources of critique to lawyers loyal to their responsi-
bility to push the law to strengthen compliance with its duties of
justice.13
I do not claim that a legal theory – certainly not one that transcends
any specific jurisdiction – can or should generate a fine-grained blue-
print for every doctrinal detail. The prescriptions of legal theories, both
where they affirm existing law and where they point to its necessary
reform, cannot be fully determinate. They leave, as they should, some
space for culturally specific considerations and for pragmatic con-
cerns, both local and contextual. And yet, although they cannot be
fully specified here, the lessons of the liberal theory of property have
practical significance.
18 Some Basics

Existing property law manifests the three pillars of the liberal con-
ception of property. But its compliance with these maxims is not
flawless, even if we ignore the more threatening gap between the legal
doctrine of property and its prevalent practice, which reflects the
inadequacy of law’s background regimes in most liberal polities.14 In
some spheres of human interaction, current property law scarcely
offers enough alternatives, and some of the forms it does supply can
hardly be described as autonomy-enhancing. Property law also often
confers on owners an authority exceeding what the pertinent property
type requires for their autonomy and, at times, fails to meet the
demands of relational justice. These flaws, rather than undermining
the liberal theory of property, highlight its significance as a source of
internal critique that can help push property law to abide more suc-
cessfully by its autonomy-enhancing premise.
Thus, as I claim in Chapter 4, structural pluralism requires the
carriers of property law to expand the repertoire of property types with
sufficiently distinctive options, offering meaningful choices in all
major spheres of social activity. It also requires them to refine the
numerus clausus principle so that, alongside this inventory of state-
sponsored property types, property law will also include a residual
property type that can be privately designed (while properly ensuring
the interest of third parties to not be subject to non-transparent
arrangements).
Similarly, as Chapter 5 shows, although significant sections of
property law already comply with the demands of relational justice,
some do not. Architects of property law should thus carefully scrutin-
ize prevailing law to identify property types that deviate from this
obligation and then decide – considering the substantive good or goods
that such a property type arguably exemplifies and promotes – whether
it should be abolished, reformed, or reinstated, this deficiency
notwithstanding.
Other implications of the autonomy-based telos of property, prob-
ably more controversial but no less important, come up in the context
of labor markets and in transnational settings. As I argue in Chapter 7,
liberal labor markets must constrain the authority of the means of
production owners, as well as guard against excessive commodification
of people’s work, proscribing unwarranted impositions on their future
Property and Property Types 19

self and ensuring that their interactions do not fall below an acceptable
threshold of relational justice. In turn, as I claim in Chapter 6, appre-
ciating the freestanding dimension of relational justice implies that it is
relevant across borders, even if many of our other obligations are state
bound.

PROPERTY AND PROPERTY TYPES

1. Limits to Property Monism. Having discussed what I mean by

legal theory, I now turn to consider what I mean by property law.
A legal theory of property naturally aims to elucidate one animating
notion, either a single value (or a particular balance of values) or a
single design principle that shapes property’s entire terrain.
A prominent monistic understanding of property – property’s Black-
stonian conception – refers to the owner’s sole and despotic dominion
as property’s regulative principle. This book, by contrast, offers a
dramatically different understanding of property: while its normative
foundation is monistic – the (one) ultimate value underlying liberal
property is autonomy – it celebrates the multiplicity of property types
with their diverse normative DNAs, and thus the structural pluralism
of property law.
Admittedly, structurally monistic legal theories seem appealing. By
conceptualizing an entire legal field as revolving around one idea, they
tend to be simple and elegant, thus satisfying an important demand of
the practice of theorizing. They also avoid the seemingly intractable
difficulties of pluralistic theories in addressing contextual conflicts of
values. Finally, the broad coherence that typifies monistic theories
means the law speaks in one voice, a feature that some view as a
prerequisite for law’s demand of obedience.
But monistic theories of property, and particularly the Blackstonian
one, can hardly account for property’s vast heterogeneity. Property
can be understood as sole and despotic dominion only if, somewhat
arbitrarily, we set aside large parts of what constitutes property law, at
least according to the conventional understanding found in the case
law, the Restatements, and the academic commentary.
20 Some Basics

As Chapter 4 demonstrates, property law is divided into various

types, reflecting distinct frameworks of human interaction with respect
to different categories of resources. Some property types, such as the
fee simple absolute, vindicate people’s independence and are thus
generally structured along the lines of the Blackstonian conception of
property. (Zoning laws and other rules do often circumscribe owners’
dominion, so it is more accurate to say that the fee simple absolute is
the property type closest to the Blackstonian conception.) Other prop-
erty types, such as marital property, deal with intimate relationships
and are dominated by a much more communitarian view of property,
where ownership is a locus of sharing. Finally, many other property
types governing relationships between people who are neither strangers
nor intimates, such as landlords and tenants, neighbors, co-owners,
and members of the same local community, lie somewhere along the
spectrum between these poles. In these cases, both independence and
community are implicated, and ownership thus implies a complex
hybrid of rights and responsibilities.
All these property types also mediate the relationship between
owner(s) and nonowners regarding a resource. In all property types,
owners enjoy some measure of private authority, which typically
implies some rights to exclude others.15 This common denominator
derives from the constitutive function of independence in securing
people’s self-determination. Its varying significance in different prop-
erty types derives both from its differing contribution to self-
determination in each one of them and from differences among non-
owners’ claims to relational justice across these types. Beside inde-
pendence, other values – notably personhood, community, and
utility – also play crucial roles in shaping property types. Property
types thus offer different configurations of entitlements that constitute
the contents of an owner’s rights vis-à-vis others, or a certain type of
others, with respect to a given resource.
The multiplicity of property types, then, does not simply reflect the
truism that the proper application of abstract principles requires their
careful adjustment to their context. Property’s heterogeneity is pro-
found, pointing to fundamental differences between its distinct types
and suggesting that they are better explained by reference to divergent
animating principles.
Property and Property Types 21

2. Three Monistic Approaches. Monistic theorists confronting such

deep heterogeneity face rather unappealing choices. They can redefine
their subjects marginalizing the (potentially important) sections that do
not respond well to the animating principle they advocate. The
common strategies adopted by advocates of the dominion view of
property is to rename the significant portions of property law dealing
with property governance as “contract” and refer to those that vindi-
cate nonowners’ claims of relational justice as “regulation.”16 These
strategies exclude significant subsets of property law from property’s
domain. The former also misleadingly ignores the fact that law also
protects contract – and not only property – from certain external
interferences,17 while the latter disturbingly obscures both property’s
inherent limitations and the property-based rationale of relational just-
ice claims.18
Both strategies end up threatening to undermine property’s legit-
imacy because they dilute the normative constraints of property’s
liberal foundation.19 A liberal property law must, as I argue in Chap-
ter 3, shape property as a means to enhance people’s autonomy. It
should thus circumscribe owners’ authority to its autonomy-enhancing
function and ensure that everyone has property. It must also secure
property’s structural pluralism rather than treat it as a discretionary
add-on, and guarantee its compliance with relational justice as an
inherent implication of the idea of property rather than a regulatory
or constitutional imposition.
A second possible approach of monistic theorists is to discard any
pretense to account for existing law and present their theory as reform-
ist and as advocating a significant legal change, thereby rendering
property law as solely guided by their favorite animating principle.
This strategy may well offer valuable insights on law as, for example,
in some lawyer-economists’ analyses of doctrines that are unresponsive
to efficiency. But its distance from existing law often implies that it can
no longer yield an interpretive legal theory.
Finally, monistic theorists can resort to a third approach and offer
an animating principle sufficiently abstract and capacious so as to
encompass the heterogeneous legal materials they theorize about. This
approach – think of conceptual analyses of wholesale categories that
shy away from any specific prescription – is unobjectionable per se.
22 Some Basics

But this strategy nonetheless requires caution because it implies that

such theories cannot – and thus must not purport to – perform the
prescriptive function for which they are at times recruited.
The common denominator of the wide terrain of legal doctrines
covered by wholesale legal categories, such as property, tends to be so
thin that it can hardly be determinative enough to provide significant
guidance as to the evaluation or development of the doctrines at
hand.20 Property writ large, as mentioned at the outset, is private
authority. But this conceptual truism, in and of itself, lacks the pre-
scriptive power for which it is too often invoked. Its only (substantial,
for sure) lesson is to highlight the significant justificatory challenge that
property necessarily encounters.
3. The Pluralistic Alternative. Fortunately, monism is not the only
available option for theorizing about a broad and diverse legal category.
A structurally pluralistic account of property, such as the one
developed in this book, rejects the notion that any single principle
suffices for liberal property law. It challenges property monism and
relocates much of the normative and doctrinal discussion to the analy-
sis of property types.
An autonomy-based understanding of property should embrace
structural pluralism and resist the temptation to impose a uniform
understanding of property on the diverse set of property types. Such
a straitjacket is not only misleading but also unfortunate because
property’s structural pluralism enables diverse forms of the good to
flourish. Only a sufficiently heterogeneous property law, alongside an
attendant commitment to freedom of contract regarding property
rules, facilitates the coexistence of a diverse set of social institutions
crucial for our autonomy.
Liberal property should thus emphasize the multiplicity of property
law and guide its expansion to include a repertoire of sufficiently
distinct types in all relevant spheres of human activity. As long as the
boundaries between these multiple property types are open and as long
as (nonabusive21) navigation within this diverse system is a matter of
individual choice, commitment to personal autonomy does not neces-
sitate the hegemony of the fee simple absolute, reflected in the domin-
ion conception of property. Nor does this commitment undermine the
Property As a Category of Thinking 23

value of other, more communitarian or utilitarian, property types (say,

respectively, cooperatives and patents).
The eradication or marginalization of the fee simple absolute might
entail an excessive restriction of liberty and privacy because it erases
the option of private sovereignty and thus the option of retreat into
one’s own safe haven. But as long as this or a similar property type
remains a viable alternative, the availability of several different but
equally valuable and attainable proprietary frameworks of interper-
sonal interaction makes autonomy more, not less, meaningful. An
autonomy-enhancing property law cannot be content with the fee
simple absolute property type and, in each important area of human
action and interaction, must also facilitate choice from among diverse
and normatively attractive property types (i.e., property types that
comply with the prescriptions of carefully delineated private authority
and relational justice). Free people are partly defined by the alterna-
tives they reject, not just those they select.22

PROPERTY AS A CATEGORY OF THINKING

At first glance, this spotlight on plurality raises a methodological

conundrum. If the differences among property types are as significant
as I claim, does it follow that “property” is not a meaningful category,
in turn implying that no theory of property is actually possible?
The answer is no. A theory of property is possible if we keep in
mind the distinction between categories for deciding and categories for
thinking.23 An autonomy-based theory of property that appreciates the
significance of property’s deep heterogeneity does imply that the nor-
mative concerns underlying property types are so diverse that simply
labeling something as “property” is not enough to justify any concrete
decision, result, or reform consequence. In other words, we cannot
justify treating property as a category for deciding. But this does not
eliminate the significance of property as a doctrinal category because,
while types differ in their normative concerns, there are enough simi-
larities between them to justify viewing “property” as a useful category
for thinking.
24 Some Basics

A broad heterogeneous doctrinal category qualifies as a category of

thinking if bundling together its subcategories facilitates learning and
mutual enrichment. Such a capacious legal category is typically valu-
able when its subcategories raise similar questions. Similar questions
imply some overlap in the pertinent values or normative concerns
underlying the subcategories, or in the type of (or constraints on) the
means informing the answers to these questions across these subcat-
egories. These overlaps, in turn, promise some cross-fertilization, a
typical feature of categories of thinking.24
Property is a perfect example of a category of thinking. The simi-
larities among the various property types – all being forms of private
authority – justify studying them together. At the very least, the ques-
tion about the appropriate scope of owners’ authority persists across all
these different property types.25 Furthermore, because many of these
property types involve more than one stakeholder, the need to pre-
scribe a governance regime befitting the property type at hand is also a
recurring concern.
Furthermore, the underlying values animating diverse (liberal)
property types do overlap. They all aim at facilitating the intrinsic
and instrumental goods of property – primarily independence,
personhood, community, and utility – while securing autonomy,
always as the ultimate value and sometimes as a side-constraint
(distinctions I set out in Chapter 3). This overlap ensures that reflect-
ing on the variety of property types is likely to lead to a constructive
exchange, further justifying treating them as a topic of unified scholarly
analysis.
Finally, appreciating the common function of all property types in
the service of people’s autonomy is crucial because it helps us to
evaluate the performance of property law as a whole. First and fore-
most, it invites social scientists to assess the performance of diverse
property systems in terms of people’s self-determination rather than
only of their welfarist consequences. Moreover, highlighting the
autonomy-enhancing function of property’s structural pluralism
implies that, for every sphere of human activity and interaction, law
should provide a robust menu of choices. It thus requires us to assess
the quality of the repertoire of property types in every such sphere, that
is, to ensure that property law’s doctrinal divisions track the autonomy-
Property and Contract 25

enhancing role that multiplicity should play in a liberal regime. It also

implies that, rather than being content with the current understanding
of the numerus clausus principle, a liberal state should develop a
residual category of private arrangements for people who prefer to
reject property law’s favored types.

PROPERTY AND CONTRACT

The last points (discussed in Chapter 4) highlight the facilitative

role of property law, thus also anticipating my support for freedom of
contract within property types and hinting at notable continuities
between property and contract. Drawing this lesson is problematic
for those who insist that property and contract are sharply and quali-
tatively distinct categories.26 But such continuity need not threaten a
more modest view, which justifies the distinction between property and
contract as categories of thinking by reference to the relative abun-
dance and indefiniteness of property’s duty-holders.27
The continuity between property and contract is not only innocu-
ous but, indeed, to be expected. Contract, like property, is a power-
conferring institution and, in a liberal polity, both are premised on the
same autonomy-enhancing telos. Michael Heller and I have discussed
these propositions and their implications at some length elsewhere,28 so
a (very) brief summary should do here.
Contract law offers people a new power: to make credible commit-
ments that can induce others to assist them in realizing their ends. This
normative power enhances people’s ability to be the authors of their
own lives by expanding the available repertoire of secure interpersonal
engagements beyond the realm of gift-based and similarly close-knit
interactions. Contract enables people to legitimately recruit others
to advance their own goals, purposes, and projects, both material
and social.
The word “legitimately” is key. Contract, like property, is a con-
vention that offers this service of autonomy-enhancement, and law is
justified in enforcing contracts thanks to its important contribution to
people’s self-authorship. Frustrating a promisee’s expectations under-
mines his or her ability to employ contract in line with its autonomy-
26 Some Basics

enhancing functions because the right to expect, rather than the right
to merely rely, is core to the idea of planning and thus to the ideal of
self-determination.29 To be sure, reneging on a wholly executory but
yet-to-be-relied contract may not harm the promisee. This means that
contract enforcement would have generated a legitimacy crisis if our
interpersonal obligations were exhausted by the maxim of reciprocal
respect for independence. Contract is nonetheless legitimate because,
in a liberal polity, our interpersonal relationships are governed by a
reciprocal duty to respect each other’s right of self-determination.
Thus, at least in their best (most liberal) light, both property and
contract are autonomy-enhancing institutions. A liberal law constructs
both property and contract as frameworks of respectful interaction
conducive to self-determination. Both property and contract partici-
pate in the core liberal challenge of offering a structurally pluralistic
legal infrastructure for our interpersonal relationships. Not only does
the intra-sphere multiplicity of contract types serve the same role as the
parallel multiplicity of property types; at times – think of the sharing
economy – contract types and property types can serve as partial
functional substitutes to each other.
None of these observations collapses contract into property. While
property facilitates planning by securing stability as per people’s
authority over resources, contract does so by allowing them to count
on the future contribution of others. This difference explains why, even
when a temporal horizon of action could be secured either way, liberal
law should seek to include in its repertoire a minimal number of both
property types and contract types. More importantly, it accounts for
some of the limitations on the enforcement of contractual obligations
that typify liberal contract law, which vindicate its commitment to
promisors’ future selves.30 These limitations will inform my account
of just labor markets in Chapter 7.

RESOURCES AND RELATIONS

1. A Hohfeldian Starting Point. While the previous sections high-

lighted property’s multiplicity and its continuity with contract, we have
Resources and Relations 27

not yet addressed what exactly is property to begin with. Property,

declares the Restatement of Property, constitutes a set of “legal rela-
tions between persons with respect to a thing.”31 This proposition
adopts Wesley Hohfeld’s insight that, as a species of “jural relations,”
property rights imply rights vis-à-vis people, not things.32
Both the division between in personam and in rem and the literal
meaning of the Latin phrase in rem, Hohfeld argued, misleadingly
suggest that “a right in rem must be a right that is not against a person,
but against a thing.” But this understanding of property rights is “crude
and fallacious.” People may certainly “sustain close and beneficial
physical relations to a given physical thing,” but “physical relations are
wholly distinct from jural relations.” Jural relations “take significance
from the law; and, since the purpose of the law is to regulate the
conduct of human beings, all jural relations must . . . be predicated on
such human beings.”33
The autonomy-based conception of property shares Hohfeld’s
insistence, which goes even further back to Kant’s doctrine of private
rights,34 that property is relational through and through. This propos-
ition has recently come under attack with the invocation of
approaches urging a conception of property as first and foremost the
law of things.
2. Smith on Things. Henry Smith, who is the reporter for the Fourth
Restatement of Property, has argued that property law is “the law of
modular things,” and that “the thing is the linchpin of property.”
Property law, in his view, “organizes the world into lumpy
packages of legal relations – legal things – by setting boundaries around
useful attributes that tend to be strong complements,” thus encapsu-
lating them “from other modules and outside the world generally.”35
When Smith emphasizes “the key role of the thing itself in delineat-
ing the right,” and the “nature of that thing [that] goes a long way
toward determining what kinds of rights one can have and how they
work,”36 he may be interpreted as resurrecting the physicalist view of
property.37 Smith, however, explicitly treats intellectual property as
property,38 which explains why he is careful to refer to legal things. But
once the idea that the (physical) nature of the actual thing itself
determines or delineates property rights is not strictly adhered to, it is
28 Some Basics

no longer clear that Smith’s claims regarding “the importance of the

thing in property”39 challenges property’s relationality.
Smith’s proposition – that “[w]hile rights in property, like all other
rights, avail between right holders and duty bearers, in property they
are typically mediated by the thing”40 – is already incorporated into the
existing Restatement’s relational definition of property. Therefore,
Smith’s most important insights can, and indeed should be embraced
by the liberal theory of property.
Thus, Smith is correct when emphasizing the lumpiness of prop-
erty rights and when claiming that property law typically “carve[s] the
world into modular things and associate[s] them with people.” As he
explains, “[t]he legal thing defined over the actual thing . . . allows
property rights to be simple enough and impersonal enough to reach
an in rem set of duty bearers and to be more easily transferable from
one party to another.”41
Property’s lumpiness is not only functionally significant42 but also
conducive to its liberal telos. In order for people to benefit from a
property right as a “writing instrument” necessary for self-authorship,
they must enjoy a sufficiently robust measure of private authority with
regard to the pertinent object of that right. Sheer wealth or access to
things is not enough and there need to be some objects – not necessar-
ily material – that people should be able to form plans about and thus
to self-determine.
As long as this standardization of property types (discussed in
Chapter 4) revolves around legal things, it does not threaten the more
fundamental relationality of property. Some “legal things” subject to
people’s private authority in the service of autonomy are necessary, but
the objects of property may change across time and space and may be
both technologically and culturally dependent.43 (The liberal theory of
property, in other words, by no means implies a demand to either
shrink or refrain from expanding the public domain.44)
Saying that the role of the actual thing is secondary does not imply
that it is insignificant. As Smith claims, “the nature of the thing in the
world helps determine what kind of legal thing it can correspond to,” so
that the “different qualities” of land, cars, water, and inventions affect
“what it means to have property in them.”45 Furthermore, at times
certain “collections of attributes” seem to “go together,” as in the case
Resources and Relations 29

of “someone with the right to determine how soil nutrients are used
[who] might need control over the moisture level.”46
The nature of the resources subject to property rights does make a
difference. To take another example, the fact that information con-
sumption is generally non-rivalrous implies that, when the resource at
hand is information, use may not always necessitate exclusion.47
Nevertheless, and despite the relevance of the resources’ nature to
the constitution of property types, they do not challenge the primacy
of property’s relationality.48
3. The Hegelian Challenge. By contrast, Alan Brudner’s Hegelian
theory of property does pose a direct challenge to the primacy of
property’s relationality. Ownership, Brudner argues, “is a relation
between a human being and a thing through which that human being
becomes validly the master or end of the thing,” that is, “someone for
whom that thing is rightfully a means.” One becomes “master of an
object” after attaining “the power to perform upon it all tokens of the
action-types that are necessary and jointly sufficient to display mas-
tery,” namely, “excluding, using, and alienating.” More pertinent to
the current discussion, “the thing’s subservience to the person” is in
this view “direct” and, therefore, “prior” to any “relation among
persons” it “validates.” Brudner suggests that we understand this
Blackstonian conception of ownership “as the realization of the self-
related person’s project to confirm itself as the end of things.”49
This agency-validation account makes absolute sovereignty an
inherent feature of ownership because unowned things “challenge”
the person’s claim of final worth. This challenge makes unilateral
acquisition “a moral necessity” since only unqualified ownership,
which puts “objects into a relation of subservience” to a person, can
“confirm the end-status of that person vis-à-vis the world of things.”
Conceptualizing acquisition’s “intellectual significance” as validating
“the person’s end-status vis-à-vis the thing” requires that we under-
stand property as the law of things, because it is prior to any interper-
sonal relations.50
The Hegelian account, which assumes the priority of things to
relations, remains valid even though it is later embedded in a social
framework that limits owners’ authority.51 Its justification, however, is
30 Some Basics

unclear: Why should the sheer existence of an unowned thing chal-

lenge the end-status of human beings? And why should the final worth
of persons imply their complete mastery over all that is nonhuman?
The dependence of our survival and our ability to adopt a life plan
and live on material things requires that – as Locke intimated52 – we
use things. But how does the sheer appearance of independence in
things become a moral concern? If our right to self-determination is
secure, should not our final worth imply the self-confidence – at least
vis-à-vis whatever does not (claim to) have such a status – to simply
reflect upon our distinction from the world of things rather than
develop an infinite desire for its conquest? Is it possible that all the talk
of self-validation is just an attempt to rationalize some of human
history’s less appealing features?
The heroic Hegelian effort to derive the private dominion of Black-
stonian ownership only from our relationship with things is a way of
bypassing Hohfeld’s lesson. Its failure is not surprising. As Hohfeld
argued, property is irreducibly relational – the interpersonal effects of
Blackstonian owners’ normative power vis-à-vis others are consider-
able and, as noted, not easily defensible. For these others – the
nonowners – introducing Blackstonian ownership into the state of
nature is, potentially, a relational normative threat. Caution may thus
be advisable when conceptualizing the state of nature as a rights-
vacuum.
4. Two Lessons. Repudiating the Hegelian conception of property is
not tantamount to disparaging the normative significance of Black-
stonian ownership. As Brudner argues, beings with end-status are
entitled to a system supportive of their self-determination, of which a
crucial component is some mastery over things. Justifying Blackstonian
ownership, however, cannot sidestep the relational challenge.
Facing up to this challenge will be part of my task in Chapters 3–5,
which flesh out property’s commitment to self-determination and to
the prescriptions it entails: carefully delineated private authority, struc-
tural pluralism, and relational justice. The importance of the relational
challenge also explains why I dedicate Chapter 7 to the market.
Markets, especially labor markets, are probably the most vital legally
constructed contexts of human interaction in contemporary property-
Form and Substance 31

based polities. Fully addressing the morality of property is thus impos-

sible without attending to the legal construction of the market.
Finally, as noted, claiming that property is irreducibly relational
does not involve ignoring the nature of the resource at stake. In
addition to the functional reasons that Smith emphasizes, the nature
of the resource is also significant due to the intrinsic value that people
ascribe to the resources they hold. This value is best understood, as
I claim in Chapter 3, in terms of our attachment to these resources,
which is justified insofar as they reflect our identity.53 Accordingly,
resources are subject to different property configurations. Property law
strongly vindicates people’s authority over their constitutive resources.
By contrast, the more fungible an interest, the less the emphasis that
law generally places on its owner’s control.54
This “personhood” perspective on property raises complicated
questions.55 But the key point here is that this perspective does not
marginalize the intersubjective aspect of ownership, thus avoiding the
implication that property is the law of things. On the contrary: the
reflection-and-attachment phenomenon it relies upon is thoroughly
interpersonal. People perceive certain resources as more reflective of
their own selves than of others since others – to whom the self’s
external image is communicated – share with them the same symbolic
meaning.

FORM AND SUBSTANCE

1. A Familiar Dichotomy. Property, I have argued so far, is intrinsic-

ally relational, and property law is best understood as an umbrella of
property types rather than as a uniform monistic legal construct. But
how are we to understand these types? Should we focus on their form
or on their underlying substance, that is, on the property values that
these forms serve?
Property law seems to be torn between form and substance. Every
student of property remembers – some with joy, others with horror –
the system of estates, with its fine distinctions between various present
and future interests. Fee simple absolute, fee tail, and life estate are
32 Some Basics

only the beginning of a long repertoire of forms. An intricate taxonomy

follows them, including diverse types of defeasible estates, future inter-
ests, and concurrent ownerships. This labyrinth of property serves as
an apt introduction to the importance and complexity of form in the
life of the law and to the rich array of human interaction and organiza-
tion arrangements that property law constitutes.
But property is also quite obviously about substance. Property is –
how can it not be? – about values and normative choices. Homeowner-
ship is frequently analyzed as a bulwark of individual freedom and
independence. The home, as well as some other holdings, are even
regarded as constitutive components of personal identity. Further-
more, property also supplies frameworks for interpersonal arrange-
ments and communities, affects the efficient (or inefficient) allocation
of resources, and implicates the distribution of goods and powers in
society. Above all – at least from a liberal perspective – property is one
of the building blocks in an autonomy-enhancing legal regime.
Is property then a matter of form or of substance? Most of the
contemporary property theory takes sides in this purported schism.
Many property theorists – ranging from your garden-variety lawyer-
economist to members of the “progressive school” of property – follow
Bruce Ackerman’s “Scientific Policymaker,” who downplays the sig-
nificance of property’s form(s) and focuses on its substance.56 Because
property law parcels out rights to use things “amongst a host of
competing resource users,” the “real question” property faces, in this
view, is always “in whose bundle one or another right may best be put”
given a certain comprehensive view of the just society.57
Other scholars find these approaches “impatient” because, by
focusing on ends like social welfare or human flourishing, they fail to
appreciate the significance of “the ‘gap’ between means and ends in
property.” Bypassing property forms is unfortunate, they insist,
because sometimes property’s ends are best pursued indirectly.58
Some property theorists seem to take this insight to its logical conclu-
sion, shifting (or shifting back) the focus of property theory to the
architecture of property rather than to the values it vindicates and
promotes. This view of property does leave room for values in the
landscape of property but implies that reflecting upon these values
must follow a foundational inquiry of property’s architecture.59
Form and Substance 33

2. Both Substance and Form. This book resists both positions. Prop-
erty, I argue, is profoundly about both substance and form in the sense
that we cannot understand one without the other. This claim does not
simply reiterate the truisms about the limited number of ways in which
the various sticks (rights and powers) of property are bundled together,
on the one hand, while respecting the various ends that property
serves, on the other hand. My claim is that the architecture of property,
which is structurally pluralistic, makes a significant – indeed indispens-
able – contribution to property’s normative commitment to self-
authorship. The form of property matters and thus requires close
attention. Its significance is not freestanding, however, and needs to
be justified by reference to this telos.
The ultimate autonomy-enhancing value of property, I argue,
explains the gap at times discernible between its intrinsic and instru-
mental values – independence, personhood, community, and utility –
and the means applied in their pursuit, namely, the standardized prop-
erty types that characterize our law.60 Moreover, property’s telos could
not have been accomplished had property resisted its structural plur-
alistic architecture that, in turn, cannot be properly evaluated without
reference to property law’s liberal telos.
To begin with, the forms of property matter because – pace Hoh-
feld – property is not a fully malleable “bundle of sticks,” and the
possession of any single “stick” by a person is thus not “strikingly
independent” of the others.61 The bundle metaphor does appropri-
ately convey Hohfeld’s insight that property has no canonical compos-
ition – there is neither an a priori list of entitlements that the owner of a
given resource inevitably enjoys nor an exhaustive list of resources
that can or should become objects of property.62 But the bundle
metaphor is seriously misleading insofar as it implies a radical disinte-
gration of property,63 conceiving it as a “laundry list” of substantive
rights with limitless permutations. At any given time, property law
offers only a limited number of bundles of rights – a numerus clausus
of types – and the legal system strives to make each type distinctive
and coherent.
These types make up an inventory of human interaction frame-
works, allowing property law to serve its autonomy-enhancing telos. In
order to create effective frameworks of social interaction and
Another Random Scribd Document
with Unrelated Content
She: Oh, certainly. To an extent. But when curiosity conflicts with
one’s disgusts....
You: Disgusts? Now you are certainly wrong. It gives you away.
She: Yes, that was a silly thing to say.
You: Don’t you think that you allow your mind to rule you too much?
It’s really dangerous. I mean it. Surely your intelligence tells you that
a well-rounded personality....
She: But I told you; I don’t want to experiment!
You: I can’t believe that you are in a position to judge. You don’t
really know what you want; you don’t know what to want. I don’t
believe you for a minute when you say you are happy. Lovely, yes;
but lovely in a melancholy way. How can you know about yourself,
you wise child? Tell me, are you always so serene?
She: You’re getting much too serious. Let’s dance.
You: I don’t want to dance with you just now. I think you’re trying to
run away from me as you have always run away from questions. Do
you know, you’re a most deceptive person. When I met you, I said
to myself, “She is sensitive,” but I never thought of you as being
beautiful. I’m being frank, do you mind? But I see now that you are.
I see that you are rarely beautiful, but that you do not wish to be.
Isn’t that true?
She: Why no, of course not. I don’t understand it all.
You: It’s just this, and I don’t care whether or not I offend you. In
fact, I hope I do. Someone ought to offend you now and then.
You’re committing a crime, not only against us but against yourself.
If I had my way—and I’m not being selfish, either—
She (blazing): As though any of you weren’t selfish!
You: What?
She: I’m so tired of it all. Don’t you think I hear something like this
every day of my life? All of you working for yourselves, arguing for
yourselves, talking eternally about the same thing. I can’t stand any
more of it. I’m sick of it.
You (gravely): I beg your pardon, but you’re not being quite polite,
are you? You’re a bit unjust.
She: Perhaps I’m rather excited. Sorry.
You: Perhaps not. This is the result of a long silence, isn’t it? You
have never spoken like this before?
She: Yes, that’s it.
You (leaning forward): My dear, if I’ve said anything....
She (faintly): No, it’s nothing. Tell me, how can you—all of you—be
so cold blooded and unfastidious at the same time?
You: Oh, but you are wrong. I’m sure that as a rule we are more
fastidious than you could possibly know. I’m sorry that I’ve disturbed
you—Check, please! I’m going to take you home.
She: No, I was foolish. You’re right. I’m sure you’re right. But I
couldn’t help it. Have I hurt you?
You: Let’s forget it all. Let’s go somewhere and talk about other
things. (You rise and start to the door.) I didn’t want to spoil the
evening, much as you seemed to think so. Should we go to my place
and look at the print I just bought? It’s so early to take you home.
She: Yes, that would be nice.
You: There, you see; I’ve done you an injustice. You’re quite human
underneath it all. Probably someone has hurt you, and you won’t tell
me about it. I think, my dear, that you have a very great capacity for
living. Let’s take one with the top down. TAXI!!

2. JUST ANOTHER LITTLE ONE

TYPE:
 Virile, young, simple. A man who does not waste time on
philosophical reflections; who knows what he wants and
stops at nothing but sacrifice to get it.

SUBJECT:

Very young, semi-sophisticated. That is, she has been

warned but not insulated.

APPARATUS:

1 Victrola
1 Radio
1 Bottle Scotch
1 Automobile
1 House—Anybody’s
1 Party

REMARKS:

The inclusion in the collection of this lesson is accompanied

by some misgivings on my part. It is a method of which we
do not approve. The true seduction does not depend upon
mechanical devices such as alcohol. I counsel my students
to save this method until all else fails, for it leads to a
slackness and a lazy attitude toward the work. Moreover, it
is against the law in this country to buy liquor or to carry it
around.

JUST ANOTHER LITTLE ONE

1. The introduction. Give everyone full notice, but when her name is
mentioned, employ the personal touch in your bow—the lingering
glance shading off in friendly admiration.
2. Wait half an hour, perhaps employing the time with a drink. Dance
with everyone else and be looking at her twice when she glances
your way.
3. Suddenly walking over to her, you should look accusingly at the
half-full glass in her hand.
“You don’t mean to tell me that’s your first?”
“Yes.”
“Say, who are you anyway? Have I ever seen you around?”
“No, Joe and Edna brought me. I don’t know anyone here very well.”
“Who’s Joe?”
“The little fellow over there.”
“Your heavy?”
“Silly! No, of course not. He and Edna just got married. That’s why
they’re having this party, isn’t it?”
“I don’t know. I was invited, that’s all I know. Well, see you later.”
Get up and go away at this point; too much at first is too much.
4. Soon after this it is likely that the lady will finish her glass
mechanically; and the next one will go down with more alacrity.
Keep an eye on her, and when she has finished the second one
come back and ask her to dance. If you are a good dancer the
whole thing is easier, but so few of you are.
Put her down when it is over, smile at her politely and go away
again. This mystifies her.
5. Two drinks later. Don’t drink too much; this requires as much
concentration as any other business. It’s time now to focus the
attack.
After two or three dances the room seems uncomfortably warm, and
now that she is accustomed to being monopolized she won’t be
averse to stepping outdoors with you to get cool. Any car will do if it
is unoccupied.
There will be a slightly awkward pause; breathless and afraid on her
part. Then she realizes that your intentions are all right and she is
ashamed of her own suspicions.
“My, but it must have been warm in there,” she says. “I didn’t realize
it. What a lovely night!”
“Yeah, the gang’s crazy to stay indoors in this weather.... Say, what
do you do all the time? I haven’t seen you around.”
“Well, I haven’t been in town very long. I’m visiting Edna.”
“Having a good time?”
“Oh, yes. Everyone’s been so nice to me.”
“Naturally they would be, to you. I guess you have a pretty good
time wherever you go.”
“Aw, that’s an old one!”
“You don’t swallow everything you hear, do you? Well, that’s right.”
... a burst of music comes through the window ... “Say, I’ve got a
drink or two here. Want one?”
“Oh no—I’ve had enough. But you go right ahead.”
“Nope, I don’t drink without company.”
“Well—just a little one.”
6. After the bottle has been tucked away again, settle down with a
deep sigh and put your arm around her. While she’s wondering if she
ought to let it stay there, turn around and pull her head over to
yours, very lazily and comfortably.
“No! Please.”
“All right.”
Release her, avoiding all trace of petulance. She can think that over
for a while.
7. After a long time, reach for the bottle again.
“Just another little one?”
Of course she doesn’t want to be a complete prig—
“All right. But aren’t you drinking a lot?”
“No. I never take too much.”
There really isn’t much to say. You don’t want conversation; she
knows you don’t. She does—or does she? She doesn’t know what
she wants, just now. You’ve flustered her and upset her and started
her thinking and you aren’t doing anything to help her out. She
wonders why you don’t say something. She can’t think of anything
to say. She’s thinking too hard of something which you have
evidently forgotten. It is almost a relief when you put your arm
around her again. Something definite, anyway. Even when you kiss
her she doesn’t protest. She thinks that it wasn’t bad anyway; in fact
it was a nice kiss—not too long nor too enthusiastic.
And as a matter of fact, this particular subject should not be a
connoisseur of kisses. She would like to discuss it. Whenever she
has been kissed before, the occasion seemed more momentous,
with prelude of conversation and aftermath of protestation. Your
absolute indifference intrigues her. You’ve evidently forgotten all
about it already.
8. And then you yawn. Yawn and burrow your head in her breast in
an affectionate, friendly manner; dropping off to sleep immediately.
She sits very still and straight, hoping that you’ll wake up, hoping
you won’t, hoping no one is watching you from the porch,
wondering why she isn’t objecting, wondering why she should,
wondering about life in general.... It’s all because she drank so much
of that whiskey. She really doesn’t feel so well. Sort of mixed up.
Why don’t you wake up? She wants to go in and dance; it must be
late. How did this get started anyway?
9. She stirs a little at last, for her arm is going to sleep, and this
wakes you. Open your eyes and pull her face down to yours—it’s the
most natural thing to do under the circumstances. “Sweet thing.”
She is reassured. You are thinking of her, then. You’ve become once
more a person, a man, instead of an abstract problem. And she
knows how to deal with people, even with men. It’s this other thing
that worries her; this horrible impersonal wondering; this feeling of
enmity that lurks in the air when people forget you and go to sleep.
Although she couldn’t put it into words....
10. “Another drink, sweet thing?”
“I guess so.”
“Sure, just another little one now.”
She isn’t thinking at all now. If she were she’d probably suggest
going in, for it is late and she wants to dance. But it doesn’t seem
late; it doesn’t seem as though time is going on at all. She isn’t
thinking. She doesn’t start to think even when you kiss her more
enthusiastically and not so lazily. This must be the way a plant feels
on a hot summer day when it hasn’t anything to do but grow. Not
happy; not sad.
It is only when she realized at last that you are growing importunate
that she stirs herself and protests. She isn’t sure what to say; the
protest is more a matter of habit than anything else.... Everything is
a habit.... And once more, for the last time, you say “Yes. One more.
Just another little one.”

3. FEEL MY MUSCLE
TYPE:

The man of action, of firm convictions and a limited

sympathy for anyone who does not agree with him. Timid
or sickly persons are advised to avoid this method.

SUBJECT:
 An old-fashioned girl, apt to get a thrill when forcibly
reminded of her comparative weakness.

APPARATUS:

1 Bathing Beach
1 Life-saving Uniform
2 Hot Dogs

REMARKS:

We all have some primitive instincts, even now. A crude

exhibition of brute strength is fascinating to most of us,
deny it as we will. The psychological basis for the reaction
of the subject is probably a feeling that she will not have to
bear the responsibility for whatever may happen.

FEEL MY MUSCLE
The holiday crowd is thinning out. Dusk shrouds the less decorative
elements of the beach—the ragged holes left by children and the
empty, soiled paper lunch boxes. Those revelers who are left see
only the long curving line of the shore and a mysterious intermittent
foaming as the lazy waves crash slowly against the sand.
Eloise lounges on the beach, watching the slow ebb of the Sunday
gaiety. She thinks vaguely of going in for one more dip before she
gets dressed; thinks of the shock of cold water on her already-dry
bathing suit; thinks of the damp, dank-smelling dressing-room, and
decides to postpone the whole thing for a few minutes. There is no
hurry and she isn’t cold. She runs her hand through her fuzzy hair
and yawns. She is a slim girl with a slightly bored expression, and
she is younger than she looks.
It has been a pleasant Sunday, withal rather dull. She hasn’t come to
the beach alone; she and the other file-clerk in the office have
ventured out together. But Bessie has met up with a boy-friend and
disappeared. Eloise does not hold a grudge against her for her
desertion; it is understood that such accidents are likely to happen
on Sunday afternoon. But she surveys the long lonely ride home
with distaste. She chews her wad of Juicy Fruit dreamily and gives to
the ukelele clutched to her diaphragm a pensive plunk.
It is at this moment that you sight her. You are strolling along the
beach on your way in, after an arduous day of life-saving. Not that
anyone has needed his life saved, but three blondes and two
brunettes have required swimming lessons and all of them have
been plump. By this time you prefer them slender; all the ladies
tattooed on your arms are very slender indeed; and two of them
wear red bathing-suits of the same shade as Eloise’s. You stop short
when you see her and wonder if you haven’t seen her before
somewhere. You decide that you haven’t; and regret the fact. You
wonder if she has noticed you. If she has, she doesn’t show it. Not a
missed beat has interrupted the mastication of her chewing-gum.
True to your vocation, adopt a nautical method of approach. In other
words, tack. First walk along a line inclined at forty-five degrees to
the most direct approach to Eloise. Somewhere at her right pause
suddenly and examine a sand-crab. Then look up quickly, obviously
under the impression that someone is calling you. After carefully
looking at everything else on the beach, drop your eyes to Eloise,
who blinks and turns away.
Sigh loudly and drop heavily and prone on the sand near her feet.
Startled, she looks at you again. Grin and flip a pebble at her.
“Say!” says Eloise, indignantly.
“What do you say, girlie?” you counter. Then raise yourself in
sections and redrape your lean length on the log next to her. “Ain’t
you lonesome?” you add.
It is a rhetorical question purely, but she does not want to play. She
chooses to take you literally.
“Not much,” she retorts. “I’m waiting for a guy.”
Answer promptly, “Not any more, you ain’t.”
She compresses her lips and ignores you, fingering the strings of the
ukelele in an abstracted way. It has no effect. Pat her arm and say:
“Give us a tune, kid?”
“Fresh!” she says scornfully. “Who you crowding?”
“Aw, don’t be mean,” you plead. “Give us a tune.”
Eloise shakes her head quickly and decisively. “I didn’t ask you over!”
she reminds you. It is a warning that she is on her guard; that she is
a difficult proposition; that she is a Nice Girl.
“Well, gee, can’t a guy try to be human?” Your voice should be
petulant and youthful. “I was just trying to be human. I was
lonesome.” It is a plaintive speech, and you look plaintive. But
nevertheless you are a masculine being, strong and undefeated.
Probably it is the bathing suit, or perhaps the air with which you
light your cigarette. Eloise gazes at your profile in uncertainty. End
the pause by casting away the match and turning to her.
“So when I seen you I couldn’t help talking. If you don’t like it I’ll go
away. I got my pride, too.”
This is a little better. “Oh, well, if you didn’t mean to be fresh. You
know a girl has got to be careful.”
“Sure,” you say, nodding. “I bet you do, all right.”
“What do you mean?”
“Aw, you know what I mean!” say to her ardently. “Anybody ever tell
you your eyes are pretty?”
“Fresh!” She starts picking at the ukelele again, slightly confused.
“Come on now, babe,” you plead again. “Give us a tune.”
“I don’t know anything new,” she apologizes in advance. “Do you
know that one ‘I Can’t Give You Anything But Love’?”
“Go ahead,” you murmur.
She plays the song, and then another, and another. The sun
approaches the horizon and the ocean turns dark and green.
“Gee,” says Eloise in low tones, “I got to go.”
“Wait a minute, babe.” Stand up and rumple her hair affectionately
before leaving. Eloise shrouds herself in her bathrobe and waits.
Presently you come back through the night, carrying two hot-dogs
dripping mustard.
“Surround that,” you order, proffering one. “It’s a swell night.
Anybody worrying about you? You cold?”
She shakes her head hesitantly. “N-no. But I’ll have to go soon; it’s
awfully late.”
You munch hungrily while the breeze dies down over the water.
Then shift, disposing yourself more comfortably, and grunt
contentedly. Eloise gives the head in her lap a little push, but it rolls
back. She decides to ignore it.
“Gosh,” you say at last, “a night like this is enough to make anybody
feel soft. Even a guy like me.”
“Yeah, I bet you’re a hard guy!” she cries.
Lift your head and prop it on your hand. “Say, listen, babe! Anybody
who says I ain’t, don’t know me! Does anybody ever bother you?
Some of these drugstore sheiks ever get fresh?”
She hangs her head. “Well....”
“Well,” cut her short, “if they do, send ’em around!” Make your voice
ominous. “Don’t let anybody tell you different. Look here.” Raise
your arm and clench your fist. “Feel that. There.”
Eloise puts out a tentative and timid finger. “Ooo!” she cries. “Yes, I
guess you could hit. I guess I wouldn’t ever try to get you sore!”
“Baby,” murmur tenderly, “you couldn’t get me sore if you tried. I
knew the minute I seen you you was a sweet kid. If anybody ever
bothers you again, tell me. A nice kid like you hadn’t ought to go
around without somebody taking care of you. I remember once....”
Here you stop. Somewhere down the beach another ukelele plays
softly. You sigh and grope through the dark. She tries futilely to
dislodge you.
“I really got to be going,” she protests, somewhat frightened. She is
always somewhat frightened when the fellows get too fresh.
“Now listen, babe. You ain’t afraid of me, You needn’t be. Don’t go
away yet; you’re all right. Just a little longer.” And yet, as before, for
all your pleading tones there should be a hint of strength in your
speech. Eloise yields, but whether to your imploring or your strength
she does not know.
“Well,” she says, “if you’re nice.”
Silence lives on the beach, except for the tiny wailing of the ukelele.
Silently the water undulates and the moon creeps over the edge of
it.
“Quit it!” says Eloise, giggling nervously. Do not answer. “Aw, quit!”
Still you do not answer. “Please! You’re too strong. Oh, quit!”
The other ukelele still plays, spreading over the night a sweet layer
of romance; singing of exotic love on a whiter, warmer beach in a
more delicate world; singing of love, as though love were a thing to
be sung.

4. YOU’RE NOT THE DOMESTIC TYPE

TYPE:

The sensitive young man with a predilection for virtuous

married women. Charmingly impetuous.

SUBJECT:

A virtuous married woman.

APPARATUS:

1 Living room
1 Chaise-longue

REMARKS:

Love, maternal instinct and pity are all emotions that should
be employed in this lesson, but the most important factor
of all is spirituality. Never for one moment allow her to
doubt your spiritual sincerity.

YOU’RE NOT THE DOMESTIC TYPE

The doorbell rings just as she is settling down to a nap, and there is
no one else in the house to answer it. She opens the door a little
reluctantly.
“Oh, it’s you, Arthur,” she says in relief. “Come in. I thought it might
be someone special.”
“I’m not interrupting anything, am I?” say, smiling as you enter the
living room. Smile nicely; youthfully. “I won’t go away, at any rate.
Not unless you’re very hard and cruel. I worked too hard to get
here.”
“It’s all right,” she says, sitting down and patting her hair in back. “I
was going to lie down and try to sleep, out of sheer boredom.
There’s nothing I really have to do. But you should be at work. Why
aren’t you?”
“I didn’t feel like working.” Frown and look at her defiantly. “Good
Lord, why should a man work all the time? I hate the bloody office
anyway, and you know it.”
She shakes her head at you, but smiles. “I ought to scold you. But I
know too well how you feel.”
“Why don’t you lie down even if I am here? Go on over to the
chaise-longue; I’ll tuck your feet up.”
“Gracious!” she cries. “You’ll have me spoiled if you’re too attentive.
Bob hasn’t your touching respect for my age.”
Thump the chair as you bend over to arrange the quilt. “Alice, that
isn’t funny. It never was funny. At any rate, you mustn’t tell Bob how
nice I am to you, or his dislike of me will overflow all bounds. That
would be a nuisance. I’d have to visit you in the afternoons all the
time, and they wouldn’t like that at the damned office.”
“No, and you wouldn’t ever get to see my new dinner dress.”
Sit down on the edge of the chair. “And I’d have to stay away on
week-ends; I’d have to start playing golf, and I hate it. It’s much
nicer to come here and talk.”
She laughs. “Yes, I know you think so. You’d rather talk than do
anything else, wouldn’t you?”
“Wouldn’t you?” you counter. “But this sub rosa arrangement might
have its advantages. If I had to be furtive you might be forced to
take me seriously.”
“You’re a silly little boy,” she says, looking worried.
“Of course I am. I only wish you said it oftener. If you would only
promise me to say every morning and every evening ‘What a silly
boy Arthur is,’ I’d feel better about going home so often.”
“It wouldn’t be a difficult promise to make,” she says thoughtfully.
“Perhaps I do it anyway. You’re awfully silly sometimes.”
“Good! At any rate, that would mean that you would say my name
twice a day.”
“Heavens!”
“It did sound sentimental, didn’t it? Well, forget it. You know, I am
serious about Bob: I wish he’d dislike me a little more actively.”
She sits up and speaks with decision. “Arthur! You know well enough
that Bob doesn’t dislike you at all.”
“Is that it?” you ask, sorrowfully. “Then it’s his maddening
indifference that I can’t forgive him. I won’t forgive him, anyway, so
you might as well give up.”
“If it would make you feel any better, he said just the other evening,
‘Why doesn’t that kid get to work? He’s been hanging around here a
lot longer than he would if I were his father.’”
“Yes,” you answer, “that helps. That helps. I feel almost kindly
toward him now. I’m glad you told me.”
“You know well enough you like Bob!”
Shake your head. “It’s just another of my worries. I do like Bob. I
love Bob. He’s such a child.”
She giggles. “Well, I wish he could hear you.”
“Yes, isn’t it funny? We go around feeling paternal about each other
and you lie there and laugh at both of us. Let’s not talk about him
any more. I’m not a sub rosa visitor yet; I haven’t any right to talk.
Where’s Betty?”
“I sent her out to the Park for the afternoon.” She looks out of the
window. “We’ve had such wretched weather until today. She’ll be
heartbroken when she finds out you were here. Now that the
family’s all discussed and taken care of, tell me how you are. Have
you been doing anything wicked lately? Tell me some gossip about
the younger generation.”
“What do I know about the younger generation? I haven’t been
playing around. It’s queer restless weather. I’ve been trying to write.
I’m surprised you haven’t noticed this air. There’s something in it.
Even you must have noticed. It isn’t exactly wild. Spiritually
provocative, I think—whatever that means.”
“Why shouldn’t I have noticed it?” she asks.
“You!” you cry bitterly. “A sublimely wise person like you? Alice
dearest, why should you have noticed it? Or if you did, why should
you admit it?”
She raised her eyebrows, somewhat surprised. “You sound angry,” is
all she says. “What’s the matter?”
“Nothing. I’m in a bad temper.”
“You really are,” she says wonderingly. “I’ve never seen you like this.
Won’t you tell me what’s the matter?”
“Oh, for God’s sake! Why won’t you get angry? Why won’t you tell
me to get out?”
“Arthur, what is the matter?” She speaks gently.
“I wish you’d get angry, just once. I’d like to fight and fight with you.
I’d like to make you cry. I could, too, if I only knew how to begin.”
She looks at you in silence. Then go on—“Sit up, Alice! Sit up and
slap me. Stop looking so damned comfortable. You don’t really feel
comfortable.”
“But I do,” she protests. “I’m sorry, but I do.” It is funny, but she
doesn’t laugh.
“No you aren’t. You’re sure enough of yourself; you’re secure, but
you don’t like all this any more than I do.”
“All what?”
“All—all that you don’t like. Why can’t you tell me? I keep hoping
you will, but you never do. Why can’t you tell me? I tell you
everything. You have every bit of me. You make me tell you
everything and then you never give anything back.”
“Arthur!” she cries, hurt.
“I can’t help it.” Lean closer to her startled face. “There’s just one
thing I really want. Just one. The one thing I’ll never get from you.”
“What is it, dear?”
“I want you to tell me the truth. To look at me and say, ‘Arthur, I
don’t really like this at all. I hate this house. I hate being smooth
and perfect. I hate my mother for what she did to me, making me
like this—’”
“Don’t!” she cries.
“‘And I hate my daughter for what I am making of her. I hate her
when she looks like her father—’”
“No! No!”
“‘And I want to die when I realize that I am getting more and more
like all of them, all the time.’ Go on, Alice. Say it.”
She shakes her head slowly, and weeps. “I can’t.”
“Say it!” you repeat. “I—Alice, I made you cry, didn’t I? Never mind.
Say it.”
“No. The one thing you can never——” she cries convulsively.
“What is it, dearest?”
“You said it yourself,” she sobs. “The one thing you can never have. I
won’t. I can’t.”
“Stop crying, dearest. Please. I can’t hear you when you talk like
that. Darling, darling, I’m so sorry I made you cry. I’m so glad. Kiss
me. You must, darling. It’s the only other thing to do. Alice, you
know it is. Kiss me. If you won’t talk.... We must, dear.”
“Yes,” she says.
Take her in your arms.

5. I’M BAD
TYPE:
 The very young man with all distinguishing characteristics
still in extremely early stages.

SUBJECT:

Any nice girl under fifteen years.

APPARATUS:

1 Porch swing.

REMARKS:

This lesson is relegated to the use of the kiddies; it is good

for very little else. In this day of experience and the single
standard it is passé, and I include it more as a curiosity
than anything else. The beginner should know the
fundamental principles, at any rate. For older participants in
the game who wish to try their luck along these lines, I
suggest more restraint. A few dark hints will go farther than
any amount of explicit description. The imagination of an
innocent girl can work wonders with a very slight
encouragement.

I’M BAD
“But it is different,” says the little girl, with an eager note in her
voice. You give up the argument for a time and sit in silence, hearing
only the creaking of the porch swing’s chain above the noises of the
summer night.
She takes up the conversation again.
“I mean that supposing I should want to do all those things—some
girls do, you know—well, I couldn’t. Of course it isn’t likely I should
want to. I don’t see any fun in hanging on to the under part of a
train——”
“Riding the blinds,” you say, patiently.
“All right; riding the blinds. But there might be something. Like—like
staying up all night, perhaps, when it isn’t New Year’s. Bob used to
do that. Mother didn’t think it was particularly terrible if he just said
he was studying, but I can’t even do that. It isn’t fair. Here I am a
senior in high school and practically grown up and they’ll always
treat me like a baby just because I’m a girl.”
“Yeah,” say, as she stops for breath, “it’s a shame.” And this is as far
as your sympathy goes. After all there isn’t much else to say.
Nevertheless she feels slightly resentful.
“You don’t have to be so satisfied about it,” she says.
“I’m not satisfied. Only I don’t know what I’m supposed to do about
it. I think myself you girls are pretty darned lucky. A man has to look
out for himself, and believe me sometimes it isn’t so much fun as
you think.”
“Well, even if——”
“No, you can say things like that for hours, but you can’t really tell
until you have to try it. Why, I’d just like to see you in some of those
situations.”
She is really impressed.
“What situations?”
“Aw, I couldn’t tell you. A fellow couldn’t really talk about some of
it.”
“Oh, go on! I wouldn’t tell anyone!”
“You bet you wouldn’t! What if I told you that I was caught in a
Raid?”
“Really? You’re not kidding? What kind of a raid?”
“Why, a—a Raid. There’s just one kind. The cops come in and pretty
soon the music stops and——”
“Where?”
“’Xpect me to tell? Oh, well, then—Place called the Yellow Mill.”
“Oo, gee! Were you alone?”
“Was I alone! Don’t be such a dumb-bell. Of course I wasn’t alone.
Do you suppose a fellow goes to those cabarets alone? Why, they
wouldn’t let him in!”
“Then who was with you?”
“Never you mind. Some other men and some girls.”
“What girls? Anyone in school?”
“Maybe and maybe not.”
“Honest? Then it was. I’ll bet it was Eleanor.”
“Well, it just wasn’t. What do you think Eleanor is? A man wouldn’t
take a NICE girl to the Yellow Mill.”
“Why—why Walter, you don’t know any other kind, do you?”
“Say, don’t judge everybody by yourself.”
“Well—what happened?”
“I told you what happened. The cops came in and the music stopped
and some of the girls sort of screamed and then the cops started
looking for booze.”
“Did you have any?”
“Well of course we had had some, but by the time——”
“Oh, Walter!”
“Gosh, don’t you think a fellow has to have a drink sometimes? By
the time they came we had finished it.”
“What was it?”
“You wouldn’t know the difference if I told you. It was wine. Elmer
got it from his old man.”
“Elmer Busby?”
“Nevermind. Well——”
“It was!”
“Well, what if it was? Do you want to hear about this?”
“Oh, yes.”
“Well, keep quiet. Well, there wasn’t any left when the cop came
over to us, so he couldn’t prove anything. He just looked at us and
said ‘All right. Outside!’”
“Then what?”
“Why—then we went home.”
“Gee, I’d have been scared to death.”
“Sure you would. Any girl would have been.”
She sighs and looks out over the front lawn.
“Maybe I wouldn’t have been scared, though. Maybe——”
“Sure you would have!”
“No, wait a minute. Maybe it would be fun to be scared sometimes.”
“Well, I’d think so, myself, but a girl wouldn’t. A nice girl.”
“Why, Walter! What a thing to say!”
“Well, I mean it. Look at the way all of you act—‘Oh, no, it wouldn’t
be right—do you think we ought to?’”
“What are you talking about?”
“You. That’s just what you said the other night after the party when
I tried——”
“Well, really, Walter, I don’t see what that has to do with raids.”
“Well, it’s the same thing.”
“Just because I didn’t let you kiss me?”
“Well, why didn’t you?”
“I don’t like kissing.”
“You just don’t care. You never do let me kiss you. You don’t know
anything about it. That’s the way girls are. No wonder you never
have any fun.”
“Walter, I think you’re really bad.”
“Sure I’m bad! I have a good time. You don’t.”
“No, I don’t. But I didn’t mean that.”
“You’re afraid. That’s all.”
“Walter, I guess——” she stops.
“What?”
“I guess you can kiss me once. Don’t tell anybody.”
Silence.
“There now. What did you think?”
“I didn’t like it. It was horrid. If you tell anybody I’ll never speak to
you again.”
“Well, then, try it again. I won’t tell anybody. Come on! What do you
think I am? Sure I won’t tell anybody.”
“Oh, Walter, I bet you think I’m terrible.” “Of course I don’t. Don’t be
a dumb-bell.” A sudden voice calls from the house.
“Willa! Willa, it’s ten-thirty!”
“Oh, Walter, I have to go.”
“Good night. Whatcha crying about? What is it, Willa?”
“Oh, you just think I’m terrible!”
“Honest I don’t. Can I come over tomorrow night?”
“You know you don’t want to. Oh, Mother’s calling again.”
“Sure I want to.”
“All right.”
“Good night. Listen, Willa. Honest I think it’s all right. I think you’re a
good sport. Honest. Good night.”

6. AN UGLY OLD THING LIKE ME

TYPE:

The unscrupulous man without too much pride when it

comes to women. Seemingly frank and open; the rough
diamond with a soft heart; Punch wanting to be Hamlet.

SUBJECT:

Tender-hearted and impulsive. A very sweet character.

APPARATUS:

1 Automobile
1 Package cigarettes.

REMARKS:

Scarcely a girl in the world is trained to be on her guard

against pity. As a rule a young woman is sure that she is a
difficult proposition because of her knowledge of the world
and its wicked ways. She is looking, not for weakness, but
for strength to combat; for presumption so that she may
step on it. It does not occur to any normal girl that she
might be taken unawares as an angel of consolation.

AN UGLY OLD THING LIKE ME

It is evening, and you are driving home from dinner in the country.
It is a warm summer night and too early to be going back; you have
already made a remark to that effect. Suddenly you turn the car into
a private-looking road that leads away from the stream of home-
going cars.
“Now what?” she asks.
“I want to show you a place I found once. Are you in any particular
hurry?”
“No. What is this place?”
“You’ll find out in a minute.... Here we are.” The car comes to a stop
in a natural sort of amphitheater, banked by high walls of rock on
one side and well enclosed by shrubbery that is just becoming
impassable with the full foliage of midsummer.
“It’s an old quarry,” explain to her. “Nice, isn’t it? I suppose in the
daytime it’s full of picnic people, but I like it.”
“So do I,” she answers. There is a silence, and you both light
cigarettes.
“Quiet,” you mutter. In the deep stillness the air seems full of life.
Some animal crashes through the bushes, but the moonlight is not
so bright as it seemed and you cannot see him. You sigh, throw your
cigarette out onto the ground, and take the girl into your arms. She
does not resist at first, except to say “Quit! You’ll burn yourself.”
Then she too casts aside her cigarette and settles down comfortably.
But you are too urgent for her.
“Wait a minute,” she gasps, sitting up with some difficulty and
putting a careful hand to her hair. “What’s the matter with you?”
“Nothing. I’m only human, that’s all.”
“Well, you weren’t acting human.”
“Sorry. Will you forgive me?”
“Sure.”
There is another silence, until she has to object again.
“Really,” she protests, “I don’t know what’s the matter with you
tonight. You’ve never acted like this before.”
“I’m terribly sorry, really. I couldn’t stand it if I thought I’d offended
you. We’ve been good friends; I don’t see why I have to spoil it like
this.”
“Oh, it’s all right. I understand.”
“You’re awfully sweet, do you know it?”
“Am I really?”
“Much sweeter than anybody else.”
“Silly!”
“Ann, I do love you.”
“Well then, give me another cigarette.”
“No, not just now. Please!”
But after a little interlude of quiet, she protests.
“Arthur, listen. You simply must behave. I don’t feel that way; can’t
you see? I like you a lot, but I just don’t feel that way. You can’t
make me feel that way, either. I’m sorry. I’ll have to get mad in a
minute.”
Don’t answer, but stare gloomily at the steering-wheel. She is a little
worried.
“Arthur, what’s the matter? I wish you wouldn’t act that way. It
makes me feel so mean. I don’t want to be mean. I just thought it
would be better to tell the truth.”
Sigh and pat her hand.
“You’re perfectly right, dear. It’s just like you—honest even if you’re
cruel.”
“Don’t be so silly. It isn’t cruel. I can’t help it if I can’t feel that way.
I never feel that way.”
“Never?”
“Arthur, you know I like you better than anybody.”
“No, you don’t.”
“How can you tell? I don’t usually lie.”
“Nobody likes me.”
“Why, Arthur!” She pulls your head over to hers and kisses you.
“There, silly.”
“Never mind, Ann,” say sadly. “Never mind. You don’t have to. You
can always be perfectly honest with me. I understand.”
“Oh, you do not either!” She is impatient. “You don’t understand me
at all, if you’re going to sulk like that. Here, kiss me.”
Then bury your face in her neck.
“Oh, Ann, you’re so sweet and I’m such a mess. I’m going to take
you home. I’ll just make a fool of myself.”
“Why, Arthur?” she says, gently. “Don’t feel so badly. I understand.”
“You always understand, dear.”
“I can’t go home while you feel so badly. I want to be a friend of
yours, Arthur.”
“Never mind. It’s all right. I know all about it. I don’t blame you.”
“Blame me? For what?”
“For not liking me Like That.”
“Like what?”
“Never mind. I should have thought of it before. You’re too sweet;
you should have told me. Then I wouldn’t have bothered you.”
“But Arthur, you don’t bother me! What do you mean?”
“Please, Ann, I don’t want to talk about it.”
“You have to, now. You’ve started. I’ve got to know. What is it?”
“Never mind. I’m going to take you home.”
“You are not! I won’t go home. You sit right there and explain
yourself.”
“Oh, darling, please let me take you home! Of course I understand. I
should have thought of it right away. An ugly old thing like me....”
“Oh, Arthur!” She cries out in pain. “Arthur, how could you think of
such a thing! Look at me!”
But don’t. She turns your face toward hers by gripping your ears.
You are crying, and looking at you she begins to cry too, in pity.
“Arthur, how could you? How could you hurt me so?”
Put your arm around her and pat her on the shoulder.
“Never mind, Ann. Never mind, old girl, it’s all right.”
“Kiss me,” she murmurs, from the depths of your coat-collar.
“No.”
“Yes. Please, Arthur.”
“You don’t want to. You don’t feel that way. You’re just sorry for me.”
“No, no, no! Kiss me!”
Kiss her. She clings to your lips in an ecstasy of renunciation.
“Oh, Ann!” cry, with a break in your voice.
“What, darling? Never mind. Kiss me again.”
“Ann, you’d better be careful. Really, you’d better be careful.”
“Never mind, darling.”
“Ann, are you sure you won’t be sorry?”
She doesn’t answer.
“An ugly old thing like me, Ann....” But as might be expected, she
clings to your coat lapel even harder.
“Ah, Ann, loveliest ... you’re not just sorry for me?”
Perhaps she shakes her head. You aren’t sure.
“Because, Ann,” you add, in an uncertain voice from which you try to
keep the triumph, “I’m only human.”
There is no objection.

7. BE INDEPENDENT!
TYPE:

The young man who can be sincere in declaration of his

radical sympathies. Any one who does not really believe in
his expressed opinions will probably fail.

SUBJECT:

Passionately impersonal; burning with zeal to destroy the

wrongs of the world. Not much given to paying attention to
her own emotions, preferring rather to settle universal
problems in the mass.

APPARATUS:

1 City
1 Brief case

REMARKS:

Most of ardent advocates of social improvement are the

products of conventional environment. They are inclined to
class together all of the rules of conduct which they have
denounced as part of a deliberate scheme to slow up the
progress of humanity’s freedom. If you can associate in
their minds the conventional concept of morality with the
 mossgrown ideas of property and government so horrible to
the advanced thinker, you are well on the road to success.

BE INDEPENDENT!
Walking home from the meeting of the Social Science Club, you are
more quiet than usual. It is strange that you should be quiet at all;
you aren’t that type. Both of you love to talk; your intimacy has
grown up in spite of, rather than because of this tendency. You
became acquainted two or three months before, across the crowded
room of the Communist Club when you both leaped to your feet to
refute some heretical statement by the speaker of the evening, who
had expressed an unsound and intolerant view concerning Union
rule. You had cried out together in protest, turned and looked at
each other, faltered, and sat down. Then you both had risen again,
even more precipitately, looked at each other again in a less amiable
manner, and started to speak again. The crowd laughed. At last she
had bowed to you jerkily and sat down again, leaving the field to
you.
But when she heard what you had to say she did not dislike you so
much. You expressed her views exactly. To be sure, you did not say
all there was to be said, and when you finished she had to make
several additions. But after the meeting you waited for each other
and took up the thread of the argument again. You walked five miles
that night and didn’t notice. Ever since then you have been seeing a
good deal of each other, at little Russian restaurants where each
pays his own check, at concerts where you each firmly buy your own
tickets, and even at her home, where her family gazes upon you
with disfavor and tries to persuade her to wear a hat when she goes
out with you.
Tonight there is a tension in the air between you, and you do not
know what to do about it. She has been quarreling with her family
and you have discussed it backwards and forwards and all around;
there was no more to say.
“I don’t understand you at all,” repeat for the twentieth time. “You’re
so intelligent about everything but your own affairs. Can’t you see
that you must attack your own problem with an impersonal sort of
attitude? It’s the only sensible way to do anything.”
“Yes, I know,” she answers, gloomily, “but you don’t understand,
exactly. I have to battle against all the fifteen years that I was under
their influence, besides fighting them. There’s an element within
myself that I can’t manage. All sorts of feelings——”
“I know,” sympathetically, “anachronistic ideas of duty, and filial
fondness, and so forth. They work on all that. Thank God my mother
deserted me when I was a baby. Father’s different.”
“You’re lucky,” she says. “It makes me furious. After all, I’m of age,
and a lot more intelligent than they’ll ever be.... Well, we’ve said all
that. I’ll just have to let it work itself out.”
“It won’t,” you assure her. “The only way to settle a thing of this sort
is to cut it all off. Why don’t you go away?”
“How can I?” she says. “I haven’t the moral courage to hold out
against them. I could go down and live with Marya for a week or so,
but you know what would happen. First Ellen would walk in and talk
to me, pretending to admire me but holding her skirts away from the
furniture all the time. She’d tell me that Mother hasn’t been well
lately, and then they’d invite me to the house for dinner and they’d
act simply angelic and rather pitiful, and then I’d come back. I
always do; it’s happened before. I know I’m weak, but it’s stronger
than my intelligence.”
“Of course that’s one thing I’ll never be able to understand. How
anyone could stand that house for two hours passes my
comprehension, and you’ve been living there all your life. How do
you do any work?”
“I don’t,” she says, simply. “I haven’t really done anything definite
since the last election. You can’t work any conviction into your
speeches if there are a lot of materialists around all the time. Oh, I
ought to starve! How can I go on pretending like this?”
“Never mind. You’re getting there. There’s nothing wrong with a
person that could get away from her environment as completely as
you have. But I can see that it’s a struggle.”
“Thank you,” she says, gratefully. You walk on in silence.
“Martha,” you say at last, “I know one way out.”
“What is it?”
“Come with me.”
“With you? But where?”
“Come on home with me. I’ll tell Father that you’re going to stay
there, and that’ll be all there is to it. He won’t object; he knows
better.”
“Oh, I couldn’t,” she says, hastily.
“Why not? It would settle things with your family. I know that type.
They’d never bother you again; they would cut you off completely.”
She is staggered, and obviously does not know how to answer.
“You’re a real friend,” she says, at last. “It’s good of you to offer.
But....”
“Not so generous, after all. Certainly I don’t have to tell you that I
love you and all that, do I? We know better than to waste our time
with such sentimental stuff. But you know that I’d be only too
glad....”
“I don’t know,” she says, thoughtfully. “Honestly, I never thought
about it. It’s part of my training, I suppose, but it’s hard to decide to
do a thing like that, right away.”
“Think of it in a sensible way,” you urge. “Try to throw away those
inhibitions. You know well enough that in the course of time we
would be lovers. Isn’t this better than slinking and being furtive
about it, and fooling your family? I’d hate it. As a matter of fact, I
have been worrying about it. This would be such a fine, brave thing
for you to do. Come on, Martha, be independent. Prove to yourself
that you’re something more than an average female who wants
nothing but security.”
“But it’s so difficult,” she says. “You don’t understand. It would kill
Mother.”
“You know it wouldn’t. She might think that she’s going to die, but
she won’t. People don’t die over such things. And if she did,” you
add, superbly, “she wouldn’t have any right to. No one has any right
to die because someone else lives up to her convictions.”
“That doesn’t help it, somehow,” she says.
“Martha, admit to yourself that it’s the only thing to do. You can’t go
on like this. If you do, they’ll sell you to some capitalist for a
marriage license and a promise that he’ll leave you money when he
dies. You’ll be part of the same vicious circle. You can’t play at both
of the games, Martha. If you don’t take your freedom when you
have the chance I’ll have to decide that you’re insincere.”
She looks very undecided and unhappy. “I don’t know what’s the
matter,” she confesses, “but I can’t.”
Stop and take her arm. She turns around and faces you in the dark
street. It is very late and quiet.
“Listen, Martha,” you say gravely, “it’s up to you. I don’t want to
persuade you to do anything that you don’t really feel you want to
do. But I think that I understand you. You have a beautiful nature,
Martha. You have a splendid mind that your family weren’t able to
spoil. As soon as you are strong enough to cast off all the deadly
conventions that they’ve tied you with, you’ll be able to do real
things for the world. And yet that isn’t what I want to say to you
now. I respect and admire you, Martha, and I want you. You want
me. What else is there to this business? Come with me, Martha, and
we’ll work together. Throw away that background of yours. Step out
into the light.”
“Oh, Michael!” she cries. Your face relaxes, and you smile.
Say, “There now, let’s do it all, right now. Go home and get your
things. I’ll go with you, if you like. Then they can do what they want
to; I know you won’t back out.”
Arm in arm, you walk down the street.

8. WHAT DO YOU THINK YOUR HUSBAND’S DOING?

TYPE:

The man who likes to use an appeal to reason to gain his

ends. He is untrained, but possesses a certain native
subtlety.

SUBJECT:

Small and thirty, overworked, with a face that has been

prettier, but which could be much less pretty.

APPARATUS:

Excursion boat.

REMARKS:

This is a system which is based on the simplest and most

atavistic of human emotions—jealousy. Reflection upon this
fact may deter from its use a number of my students who
would regard such an easy and impersonal victory as an
affront to their pride and self-confidence as first-rate
seducers. It is true that the success of the method is much
more the result of the subject’s internal conflict than of any
remarkable attributes on the part of the student. But it is
up to the seducer to be there at the psychological moment
to suggest action. It takes a large amount of tact and self-
 control to bring the situation to the point of this suggestion
without arousing the suspicions of the subject. It is not too
easy. Do not treat it with contempt.

WHAT DO YOU THINK YOUR HUSBAND’S DOING?

It is night on the boat; the last evening of the See-America-First-
Cruise; Excursion tickets good until August thirty-first; Send the wife
and kiddies if you can’t go yourself. It is night and all the children
have gone to bed, allowing a blessed quiet to creep from the
darkness and shroud the boat in wistful romance. Two figures stand
in the bow.
She: Well, home tomorrow.
You: Yes. (Sigh) Back to work.
She: I do hope it’ll be cooler. But there, it never does get any cooler
until the middle of September or after, so what’s the use of hoping? I
didn’t have any right running away from the house this time of the
year.
You: Sure you did. When you first came on the boat I said to myself,
“There’s a little woman that sure needs a rest.”
She: You did! I didn’t know I looked that bad. The doctor told me to
take a rest, but land, he’s always telling me that.
You: No, I don’t mean you looked exactly bad; only sort of thin and
pale.
She: (Pleased): Thin! Heavens, I didn’t know that I ever looked thin.
But it isn’t any wonder I’m pale. Goodness knows I never get out of
the house.
You: You know, that’s one thing I just can’t understand about men.
The way they let their wives stay at home. Believe me, if I ever get
married my wife is going to have the best of everything. And plenty
of time to enjoy it, too.
She: Well, I certainly think your wife’ll be lucky. But you’ll probably
have to wait a long time to be earning enough. I guess HE doesn’t
have it any too easy himself, working all day in an office. Sometimes
he comes home mighty tired.
You: Maybe, but don’t you believe he has it any near as bad as you
do. I’ll never forget my poor old mother slaving day in and day out.
You know what they say—“Man’s work is from sun to sun; it’s
woman’s whole existence” or something like that. I tell you, I grew
up to respect women, I did.
(There is a pause while you think about it.)
She (sighing): Well, I certainly like to hear a man talk like that
sometimes. I just wish Joe could hear you.
You: Oh, he’d say I didn’t know anything about it, seeing as I’m not
married.
She: I don’t know. Joe’s awful reasonable. It was because of him I
took this trip. He saw the ad in the paper and he says “Mary, that’d
be mighty good for you,” he says. And I says, “Yes, but how would
you get along?” He says, “Oh, I’ll manage.” And now I know that
when I look at that kitchen I’ll just sit down and cry. I do like a nice
clean kitchen. He didn’t even want me to take the children.
You: Oh well, it’s no more than he ought to do. You’re a mighty nice
little woman; I bet he ought to know it.
She: Aw!
You: I bet he don’t know how lucky he is. Married fellows never do.
How long have you been married anyway?
She: That’s a personal question.
You: Is it? I’m sorry.
She: Don’t be silly. I’ve been married six years.
You: Gee, he must’ve married you out of high school.
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