Volume 10, Issue 1 - Community and Property

Community custom has played a limited but important role in the law of property. In addition to a few major historic examples such as mining camp rules and whaling, property law sometimes relies on community custom, for example in adverse possession, nuisance law, and beach access. This Article proposes an informational theory of custom in property law. Custom is subject to a communicative tradeoff in the law: all else being equal, informationally demanding customs require an audience with a high degree of common knowledge. General customs already known throughout society do not require much extra publicity from the law, and the law can easily draw on such customs. By contrast, customs that vary by community raise the question of the need for processing by non-expert audiences, i.e., outgroup dutyholders and government officials. This tradeoff helps explain the differential receptiveness to various customs and the process by which they are formalized if they are adopted into the law. The information-cost theory suggests that enthusiasts and skeptics of custom have both tended to ignore this process. The theory is then applied to some suggestive evidence from grazing customs and the pedis possessio doctrine in mining law, under which miners have pre-discovery rights to the spot being worked. Finally, the information-cost theory of custom sheds some light on the history and controversies over the numerus clausus (standardization and limitation of the set of basic property forms) and on the question of baselines of property entitlements in the law of takings.

Property law plays a crucial role in the ability of groups, especially ones composed of geographically-adjacent members, to establish and maintain significant forms of "community" around a shared social, economic, or ideological interest. Property may also, however, have the opposite effect of undermining or even destroying communities, particularly those that rely on fragile modes of cooperation. This Article identifies three major types of territorial communities: (1) Intentional Communities—close-knit groups that initially organize around a consolidating non-instrumental idea (such as cooperative Kibbutzim or religious communes) and employ sweeping internal norms to validate their communality. (2) Planned Communities — comprised mostly of residential developments of homeowners associations, which rely on a formal set of conditions, covenants, and restrictions incorporated in the association’s governing documents. (3) Spontaneous Communities — clusters of initially unorganized neighbors who succeed in cooperating and coordinating over time. The evolvement of such organizations may be essential to the creation of an interpersonal "social capital" and to a physical and functional improvement of the community’s surroundings. For each one of these types of communities, property law plays a very different role. Thus, while Intentional Communities do not strictly hinge upon the existence of a supportive property system to flourish, Planned Communities cannot be conceived without the security of an overt, formal, state-backed regime, and Spontaneous Communities may often need property law’s affirmative backing (providing what I term "Property Tailwind") to thrive and enjoy the social and economic benefits of sustainable collective action.

In this Article we explore the evolution of property law and examine the applicability of the prevailing accounts according to which property institutions oscillate between the extreme points of open access and private property. We show that the evolution of property is a much more nuanced process, shaped by the interplay of the following three dimensions: number of owners, extent of dominion and asset configuration. Accordingly, property institutions can assume a myriad of positions along the aforementioned dimensions in response to the constant change in exclusion and management costs. We demonstrate our theory by discussing examples of three dimensional adjustments of real, personal and intellectual property.

The bogeyman of institutions and theories that make a place for community in property law is the "Blackstonian conception" of property, based on Blackstone’s famous identification of property with "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." Yet, as anyone who has even skimmed Blackstone’s Commentaries quickly realizes, it is clear that the great expositor of the common law did not believe that this absolutist and individualist conception squared with the actual institution of property found in English law. Replete with descriptions and justifications of doctrines that recognized and enforced a complex web of individual and community interests in land and other resources, Blackstone’s account seems much closer to the "bundle of rights" approach popularized by the American legal realists than to the "absolute dominion" view associated with his name. Why has exclusive dominion as a model for property, then, come to be associated with Blackstone, of all people? This Article seeks, first of all, to explain why Blackstone would first characterize property as "that sole and despotic dominion," and then go on to illustrate, over several hundred pages, the falsity of this definition. The primary goal of the Article, though, is to examine the ways in which Blackstone was invoked by later jurists as an authority for property-law propositions. In particular, the Article examines how Blackstone has been cited by English and American courts and writers, whether in connection with the "sole and despotic dominion view" or rather in support of doctrines more in keeping with a more complex view of property. Finally, it proposes an answer to the question set out in the title, identifying the historical context and motivations for the identification of the absolute, individualistic view of property with Blackstone in particular.

The relationship between individuals and communities — all manner of communities, but especially the state — is a central preoccupation of property theory. Even though the relationship between individuals and community stands at the conceptual center of property theory, the theories of community underlying discussions of property are frequently left implicit. The dominant approaches to property in Anglophone scholarship, utilitarian and classical liberal theories, treat communities as agglomerations of individuals. Moreover, they eschew substantive accounts of justice, favoring what Charles Taylor has called "procedural" conceptions. In this Article, we offer an ontological conception of community that views the individual and community as mutually dependent. In contrast with the two competing theories we describe, we favor a substantive conception of justice built around the notion of human flourishing. Although we are reluctant to embrace any particular label for our view, it is broadly Aristotelian in its framework. Once we have sketched the outlines of our theory, we will describe how our ontological theory might operate, using State v. Shack and a prominent South African property case as our central examples

Both community and property are, each in its own way, exclusionary concepts. Property — certainly private property — is defined in large part by a right of exclusion. And although "community" sounds like a warm, inclusive word, real-world communities (be they nations, municipalities, neighborhoods, or clusters of condominiums) often define themselves by reference to an array of excluded "others" and erect fences and patrol borders to keep these others out. Enthusiasm for these exclusions is made to seem legitimate by the thought that those excluded from my property probably have somewhere else of their own to go to, and those excluded from our community probably also have a community of their own to live in. In fact, neither proposition is entirely justified. We know that in most economically developed countries there are large numbers of people who live as transients and are not welcome or rooted in any community. Their only places of refuge are the substantial patches of public property (like parks and sidewalks) which society maintains for everyone’s use. But public places are not themselves unregulated, and often they are regulated according to norms of community and in response to communitarian pressures. If these communities are themselves exclusive in character, they tend to reproduce at the public property level the exclusions that manifest themselves at the private property level. This Article attempts to chart and analyze the deadly combination of exclusive community and exclusive property that these modes of regulation represent.

The fans of a football club constitute a community. This community of fans is a constitutive attribute of the club. It is part of the meaning of the football club as a resource. However, besides the cases of football clubs that are organized as members’ associations, the fans rarely have a meaningful say in the running of the club. As the history of modern football proves, the interests of the fans in the club and in the continuance of their community often come under threat. Introducing the concept of "property as belonging," this Article aims at explaining why the interests of the community of fans merit protection through the recognition of the fans’ property interest in the club. The Article analyzes various existing ways of ensuring fans a formal voice in their club, and suggests a new structure of governance of football clubs, one that conceptualizes the fans as the social or moral owners of the club and accords them special decision-making power regarding those incidents that bear a high level of risk to their community. Along with members’-association clubs, this new property institution of the football club will adhere to the idea promoted in this Article, according to which the fans belong to the club and to their community, and the club, al least in part, belongs to them.

This Article suggests that common ownership — better described as "plural ownership" to distinguish the phenomenon from semicommons — may usefully be analyzed from a dual perspective. Plural ownership may simultaneously be seen on the one hand as an aggregation of individualized rights, duties and intentions, and on the other as giving rise to a real entity with a group mind and corporate rights and duties distinct from those of the individual owners. For the purposes of understanding this dualism, the most developed and interesting form of plural ownership is the trust fund with multiple controllers and beneficiaries, an ancient device that now serves as the bedrock of modern capitalism. The fund is here subjected to legal, historical and philosophical scrutiny to uncover how group personality is generated by plural ownership in the absence of formal legal incorporation.

I argue for three theses: T1 — Access to scientific knowledge can be used to reinforce existing scientific communities and sometimes generate new ones. T2 — Community can be used to generate scientific knowledge, patent reform, scientific research, medical diagnostics, and trade secrets and occasionally patents. T3 — On the spectrum from commons to semicommons to private property to anticommons, an anticommons can arise if a biotechnological asset is fuzzily defined. I defend these propositions against objection and establish the fertility of my account by considering intellectual property issues relating to synthetic biology. Along the way I present a new understanding of the public domain. I also pursue several projects that are interwoven throughout the Article. The analytic project shows how careful definitions yield a useful taxonomy of biotechnological assets and their holders. The normative project explains why we should endorse intellectual property rights in some biotechnological assets but not others. Finally, the thematic project establishes larger contrasts between different forms of community on the one hand and individualism on the other, and reveals how my understanding of the public domain yields a surer grasp of these contrasts and their roles in institutions of property.

While it is often taken for granted that the concepts of property and of distributive justice are capable of working together to generate norms which can enhance positive social and political relations, in particular the value of community, this Article argues otherwise. Relying on critical tools deriving from Hegel’s Philosophy of Right and Marx’s notion of fetishism, the author claims that the Rawlsian conception of distributive justice fetishizes the institution of property, and claims to "distribute" participation in society amongst its members as if this amounted to a distribution of so many objects. Taken in this way, the concept of distributive justice has no respectable content. What social justice requires is a means to ensure that people are not "socially excluded," which requires each individual’s participation in the social and cultural enterprise. This sort of participation can no more be "distributed" than can life itself, and the realization of this point undermines the cogency of most discussions of distributive justice.