TY - JOUR
AU - Claeys, Eric, R
AB - Abstract Many scholars assume that property concepts contribute very little to the way in which people think about rights in resources. Yet these assumed views do not accord with what we know about clocks, keys, fiat currency, and other artifacts. Artifacts are intention-dependent objects. The distinct ways in which different artifacts satisfy those intentions—their artifact functions—give artifacts more structure and coherence than is commonly believed. Those lessons come from scholarship on the philosophy of artifacts, and this article uses them to study property concepts. This article studies three concepts of property prominent in Anglo-American property law. All three concepts perform a common artifact function, facilitating the beneficial use of ownable resources. In the concepts and this function, “use” refers to an interest people have in deploying resources for rational well-being and consistent with others’ correlative use-interests. This article supplies accounts of the intensions for the three concepts introduced. The article also shows that these concepts extend coherently to property doctrines that are believed to confound encompassing concepts of property—easements, licenses, covenants running with the land, and the interests that beneficiaries hold in wealth-management trusts. In many quarters, property concepts are believed to contribute very little to the ways in which people think about rights in resources. One recent work claims that property is little more than a (mere) “umbrella for a set of institutions … bearing family resemblances.”1 Another work insists that “no … inherent essence exists with respect to the substantive content of property norms.”2 And a third work strives to “‘deflate’ the somewhat mystical force” of the effort to “unify the various legal relations that we recognize as falling under the rubrics of property or ownership.”3 In what follows, I’ll refer to such views as “skeptical” views, and I’ll describe them as portraying property as a field lacking conceptual “structure.”4 These skeptical views seem implausible. Imagine an ordinary day in the life of an ordinary person. Hundreds of times a day, such a person interacts with other individuals or their property. Every one of those interactions requires an actor to make intuitive but decisive judgments about what he may and may not do in relation to others. Social concepts play an extremely important role in helping people make such judgments. Surely property concepts help us navigate the judgments we make about the allocation and use of external resources. As implausible as these views seem, however, we should not dismiss them out of hand. Oliver Wendell Holmes famously reminded us how “revolting” it seems “to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”5 What Holmes said of obsolete rules of law might apply to social concepts. Even if a social concept seems determinate in practice, the determinacy might come not from the concept but from local usages or habits. Furthermore, even when social concepts are structured, it doesn’t follow that we can grasp their intensions or extensions. Social concepts work best when we take them for granted. That being so, it can be surprisingly difficult to articulate consciously the structure we attribute to social concepts intuitively. In short, whether or not social concepts are structured, it may well be worth the effort to analyze them carefully. That is what this Article aspires to do for property concepts. Several concepts prominent in Anglo-American property law, I argue, are much more structured than skeptics suggest. The best way to understand these concepts, I argue, is to understand the kinds of social objects they represent—artifacts. An “artifact” is an object made or produced, and one made or produced to satisfy some need with which it is distinctly associated.6 By definition, then, artifacts are intention-dependent objects.7 These intentions shape artifacts and their natural properties. We shouldn’t be surprised if and when the same intentions structure artifact concepts. We can see as much in the three concepts studied in this article. Those concepts are organized around a common artifact function. In philosophical scholarship on artifacts, “function” is a term of art describing a capacity, characteristic of all objects in a class, and supplying objects in the class with a valuable purpose possession of which seems constitutive of membership in the class.8 For any category of artifacts, a function identifies a characteristic goal and also a characteristic means by which that goal is achieved by instances in the category.9 Clocks tell time by mechanical means. Fiat money facilitates exchange by instituting an authoritative and exclusive medium of commercial exchange. To date, property scholars have not considered whether property rights and concepts are organized around functions distinctive of property. In the concepts under study here, property rights are organized to perform a function involving use. As understood throughout this Article, “use” refers to deliberate and beneficial activity on ownable resources, conducted within morally defensible parameters. This understanding of “use” comes out of a broad philosophical tradition including many views associated with natural law, eudaemonist, perfectionist, or flourishing-based theories of morality.10 Understood in this flourishing-based sense, people have reason-based interests in using things purposefully for their own flourishing, on terms sociably respectful of others’ like interests in using the same resources. Those use-interests supply the concepts under study with a function. In these concepts, the function of a property right is to facilitate people’s concurrent pursuits of their correlative interests in using resources, each for his own distinct flourishing-related goals. Although the relevant concepts have other features, use-facilitation explains why property concepts possess other constitutive features and it regulates how those features apply to different objects of property in different situations. In this article, I explain this interest in use. I show how it generates a function for property concepts. I offer accounts of the intensions for the relevant concepts, and I also show how they apply to various property doctrines within their extensions. Before we begin in earnest, let me anticipate two possible sources of confusion about this article’s claims. First, in case it is not clear yet, this Article does not offer any universal thesis about property concepts. Conceptual analysis raises interlocking metaphysical and conceptual questions, and in what follows I do make a few assumptions about the (metaphysical) natures of property rights. My metaphysical assumptions are quite modest, however, and I turn as quickly as I can from property metaphysics to property concepts. In the same spirit, when I turn to concepts, my conceptual claims are particular and not general.11 Some of the best conceptual works on property in the last generation have conducted general studies of property; they have studied “[t]he concept of property” (note the singular), on the assumption that this concept is coextensive with the “practice” of property understood as “a way of dealing with things in which people actually engage.”12 In this article, I do not assume that the concepts I study here constitute the only concepts by which property may be represented in practice. For my purposes, it is enough to show that three concepts, prominent in Anglo-American law, seem much more structured than skeptics believe, and that the structure comes from an artifact function constitutive of all three concepts. If that much is right, it constitutes important news; subsequent work can explore its implications for the metaphysics of property or for general concepts of property. Separately, conceptual analyses are often classified by whether their aims are descriptive, interpretive, or normative. This Article’s aims are primarily descriptive. Of course, I am hedging when I say my aims are “primarily” descriptive. A property right institutes conventions in law and social morality to perform an artifact function. The conventions are positive, the function is normative, and one needs to walk a fine line when explaining how people with different views about normative values come to agree on conventions.13 Nevertheless, I do hope to walk on that line, and for help with my footwork I hope to rely on analytical methods developed by John Finnis and Joseph Raz. With both, I agree that conceptual analysis of social concepts is ultimately inseparable from normative practical reasoning.14 Yet even if conceptual analysis and normative evaluation are not “entirely independent of each other,” they are still “relatively independent” of one another.15 Scholars can learn important lessons from descriptive-explanatory or positive conceptual accounts. Even if one is more interested in evaluation than explanation, one cannot evaluate a normative proposal intelligently without understanding what it means and how it operates in practice.16 And as shown by the skeptical views recounted at the beginning of this article, prominent property concepts are not understood as well as they should be. Property-skepticism makes the most sense if property concepts need to be analyzed as we might analyze the concepts for natural objects or abstract theoretical objects. To the extent that property concepts seem unstructured, they seem so because they are not nearly as determinate as the concepts we associate with rocks or triangles. Yet property concepts resemble the concepts we associate with chairs, clocks, fiat currency, and other artifacts far more than they do concepts for rocks or triangles.17 That is what I mean to show in this article. I. Property Skepticism Let me begin by recounting the arguments cited most commonly for property-skepticism. The most fundamental argument is metaphysical: Property refers to a set of entities lacking any essential or constitutive relations with one another—as Stephen Munzer puts it, a set of ontological “many[s]” not reducible to any “one.”18 The metaphor of a “bundle of rights” exemplifies this view of property. For example, Shane Glackin claims that “anything we wish to say about what are commonly termed ‘property’ [rights] can be said by reference exclusively to the properties of the sticks in question [and] none of those sticks or their properties are necessarily connected with or related to any of the others.”19 This metaphysical argument is reinforced by a methodological argument: A property right is not the kind of object capable of having necessary or sufficient features. In metaphysical and conceptual scholarship, two analytical methods loom large. One method identifies features possession of which seems necessary and/or sufficient for an object to count as an instance of a kind or concept. The other method situates an object under study in relation to the relevant kind or concept by marking off family resemblances and dissimilarities. If property is all manys with no one single constitutive feature, the argument goes, it can be analyzed only by family resemblances and dissimilarities.20 People frequently associate the category “property” with property rights in familiar objects—land, chattels, or money and other forms of wealth. Fee simple ownership of land, and absolute ownership of chattels and various forms of wealth, entitle holders to broad managerial authority, rights of exclusive possession, control over residual benefits and products, and powers to dispose of the resources, benefits and/or products.21 Although these rights are familiar enough, property covers many lesser but still-important property rights. And those rights lead to the third major argument made by skeptics: Many weak but still-familiar property rights confound universal definitions for property organized around ownership. In this article, I’ll illustrate this argument with three examples: easements,22 the interests that beneficiaries hold in standard wealth-management trusts, and covenants running with the land (which I’ll call “running covenants” in the rest of this article).23 An easement constitutes a non-possessory right held by a non-owner in someone else’s land. An easement entitles its holder to enter the servient estate and to traverse or use that estate for some specified purpose or purposes.24 A trust severs legal title to its corpus from rights to enjoy the fruits from the corpus. Legal title to the corpus is held by a trustee; the rights of enjoyment are held by one or more beneficiaries.25 A running covenant refers to a specific class of promises enforceable on one land owner for the benefit of other landowners. The relevant promises usually do not entitle beneficiaries to access the burdened lots as easements would. Instead, such promises usually obligate the owners of the burdened lots to perform some designated activities (maintain structures of a certain size or appearance) or to abstain from some designated activities (refrain from dedicating the lot to certain prohibited uses). A promise constitutes a running covenant when it obligates parties not in their personal capacities (as run-of-the-mill contractual promises do) but in their capacities as the owners or possessors of the estates to which the promises apply. Thus, when the owners who agree to covenants convey their estates to others, the owners cease to be bound by the covenants and their successors step into the same obligations.26 Rights like these seem to confound universal accounts for property rights and concepts. Neither easements, beneficiary interests, nor running covenants grant possessory interests or rights of exclusive control or managerial authority. To complicate things even more, easements, beneficiary interests, and running covenants differ radically from one another. The holder of an easement may enter and use the estate servient to the easement; a beneficiary of a trust enjoys no corresponding right of access or use in relation to the corpus of the trust. It is much harder to describe the benefit that a land owner derives from a running covenant than it is to describe the benefits that holders and beneficiaries derive from easements and trusts. Yet easements,27 trust beneficiary interests,28 and running covenants29 are all classified as property rights. Differences like these make property rights seem ontological manys, and they also make seem impossible to identify any universal list of necessary and/or sufficient conditions for property rights. In fairness, in recent scholarship, the foregoing arguments have not been made primarily against the conceptual claims or methods introduced in this article. These arguments have been made against accounts of property with three main features.30 Those accounts focus on a single concept of property. They regard land, chattels, and money as paradigmatic examples of property, and they hold out the fee simple and absolute ownership as paradigmatic instances of property rights.31 Nevertheless, the criticisms skeptics are making apply far more widely than their primary targets. To refute one family of views about property, property-skeptics are making the entire field seem devoid of structure. II. Three Concepts of Property Although I believe that skeptics are studying property concepts with inappropriate expectations, skeptics do raise one legitimate concern. When someone imagines a rock, the concept he calls to mind applies directly to many objects in the real world. Physics give those objects a nature, and that nature focuses and constrains the concepts that people can develop to represent them. When someone imagines a triangle, he calls to mind a theoretical abstraction. Because a triangle is a two-dimensional figure, however, two-dimensional geometry gives the triangle a nature as well. By contrast, property rights are neither naturally-occurring objects nor abstractions within definite theoretical systems. That being so, people have wide discretion to designate the objects to which property rights will apply. They also have discretion to decide what concepts, and how many concepts, they may develop to represent the objects to which property rights will apply. We can see as much in the practice of property. In Anglo-American common law and almost certainly elsewhere, property seems to involve more than one general concept.32 We should identify the relevant concepts at the outset. There are three of them, and they complement one another. The fee simple provides a paradigm example of one concept. This concept represents the sense in which people use “property” as a synonym for “ownership.”33 A fee simple constitutes property in this ownership-based sense. So do the rights of absolute ownership that owners hold in relation to chattels and money. In this article, when context requires I’ll refer to this concept as “ownership property.” A second concept covers not only fees simple and other ownership rights but also easements and the other weaker rights described in the last Part. This concept plays a very important role in property as understood by lawyers. When a particular jural relation is classified as “property” or a “property right,” that classification can trigger: protection in equity,34 mandatory just compensation upon condemnation,35 or liability to attachment to enforce a judgment,36 to name a few of many possible consequences. Classifications and consequences like these follow from a concept to which I’ll refer here as the concept of “property simpliciter” or an “unqualified property right.”37 This concept raises the most fundamental issues of property and legitimacy, and that being so it will receive the closest elaboration in the rest of this Article. As we’ll see, the concept for property simpliciter distinguishes between relations that seem strong enough to describe as “rights” and ones that do not seem so strong. Consider easements and revocable (or “bare”) licenses, revocable permissions granted by a land owner to enter or remain on his land.38 Neither an easement nor a license constitutes “property” in the exclusion- and ownership-based sense described above. A license or an easement may be created when an owner exercises some of his rights in fee simple, but neither itself constitutes ownership. In another sense, however, black-letter authorities classify easements as property rights, on the ground that they instantiate “rights.” Yet in this sense, authorities do not regard bare licenses as property rights but as mere “privilege[s].”39 Easements are covered in the extension for property simpliciter; bare licenses lie outside that extension. And a third and even more-encompassing concept covers not only rights of ownership and all other (unqualified) property rights but many other weaker relations as well. This concept reflects the sense in which “property” comprises what Jeremy Waldron calls a “system” and what I call here a field of law and social morality.40 Somehow, that sense picks up the understanding by which bare licenses are covered in an extension for property—even though such licenses themselves are not property rights. But from the fact that there exist three general concepts of property, what follows? According to the views recounted in Part I, those concepts must be unstructured and unrelated. Yet the concepts are structured, they complement one another, and we will see why in the rest of this article. III. Artifacts and Function-Oriented Analytical Methods If my suggestion seems strange, consider a hypothetical John Searle uses to illustrate how much we rely on shared concepts. A traveler who visits a foreign land and orders a beer in a café. For the beer sale to go through, the customer and the waiter must meet minds about the responsibilities of “customers” and “waiters,” the obligations created by “orders,” and the roles that “beer” and “money” (not to mention “property”) play in satisfying those obligations.41 Somehow, most of us navigate transactions like Searle’s hundreds of times a day, routinely and with only the occasional misstep. People navigate social life easily because they grasp and attribute the same meanings to common social objects. In this Part, I hope to recount important insights from studies by Searle and other social philosophers about artifacts, artifact concepts, and the ways in which they structure our social lives. Once we grasp those insights, we can apply them to property concepts. A. Conceptual Analysis To begin, let me introduce the terms by which I’ll describe the relevant philosophical landscape. A concept is a mental representation on which people rely as they perceive or transact with things associated with some field of human activity. Concepts intermediate between objects and words. Concepts represent objects and they organize thinking about the words by which people think and act in relation to those objects. In philosophy, the study of words is conducted in semantic analysis, and the study of the natures of the objects is conducted in metaphysics. In contrast with semantics, conceptual analysis explains not only the “words alone but also the practices in which [they] occur and that are designated by them.”42 In contrast with metaphysics, conceptual analysis studies not the natures of objects but the features and operation of the mental abstractions by which people represent those objects.43 Concepts can be studied from many different perspectives. Because social concepts generate correlative normative obligations, one branch of conceptual analysis must clarify the specific obligations that social concepts generate in different recurring act-situations. Hohfeld’s vocabulary of correlative jural relations supplies an extremely clear apparatus for this purpose.44 Since Hohfeld’s vocabulary is instructive for these purposes in property as elsewhere, in many contexts it can be instructive to portray particular property rights as bundles of rights. In those contexts, any single property right can include many different specific claim-rights, duties, privileges, powers, liabilities, and so forth, each expressing one of the many specific implications of the specified right. Yet Hohfeld’s apparatus and the bundle metaphor help elaborate how a given concept applies in specific recurring act-situations once a masterful user already grasps the intension for a concept. Thus, neither Hohfeld’s vocabulary nor the bundle metaphor can account for the intension of any property concept.45 When conceptual analysis studies the intension of a concept, it aims to account for the concept as a masterful user would.46 In the rest of this article, I’ll speak of three conditions of concept-mastery: informing, illuminating, and supplying coherence. An analysis is informative when it identifies features that a masterful user would classify as features of a concept’s intension.47 An analysis is illuminating if it helps such a user grasp and understand features of the concept that he would otherwise have assumed unconsciously—if it “captures what we really had in mind … but couldn’t formulate explicitly.”48 And analysis renders a concept coherent if it makes the concept’s usage “mesh … in a logically coherent way with other crucial concepts to which the concept in question is systematically related.”49 B. Artifacts and Functions With that background, we can take a closer look at Searle’s hypothetical. Assume for a moment that we were to study “customers,” “beers,” “orders,” and the like as we would rocks and triangles. With those expectations, it would seem odd to suggest that any of the key objects in Searle’s hypotheticals have natures. From another perspective, however, these objects do have some natural characteristics. At a minimum, customers, beers, orders, and the like are all artifacts, man-made objects. Property rights are artifacts as well—as they are when a customer transacts with a waiter over the property the waiter’s café holds in a beer. The characteristics that make these objects artifacts are natural characteristics. By definition, artifacts are intention-dependent. It is thus in the nature of an artifact to have a function. To constitute a function, an activity must be typical of an object, it must bring about a valuable goal, and the object must be expected to perform the activity because it produces the goal.50 For an artifact, a function identifies the valuable goal an artifact is supposed to help produce and the characteristic means by which the artifact produces that goal. Consider the most shopworn example of an artifact, a chair. Provisionally, we can stipulate that a chair refers to “a certain type of artifact, manufactured for people to sit on, with a typical shape or form.”51 “To sit on” expresses the goal that chairs are supposed to satisfy. The definition is incomplete, of course, because it does not describe the distinct and typical means by which chairs help seat people. But we can fill those means in easily enough; chairs typically seat via the instrumentality of a self-standing object fitting one or two sitters.52 To be sure, it is not always easy to identify the function associated with any artifact. Some chairs are made to be ornamental displays, and other chairs are used as step ladders.53 But these difficulties can be addressed by focusing on an artifact’s “intended proper function.” An intended proper function refers to the specific and distinguishing function that the relevant community of makers and/or users expects a particular object to perform.54 That insight makes coherent the judgments we make about different sorts of chairs. Ornamental and stepladder chairs seem odd or borderline instances of chairs pure and simple because the former perform functions different from the function intended and proper for the latter. Perhaps a similar function-oriented method can generate similar insights for property concepts. When an observer identifies an artifact’s intended proper function, he can then grasp the artifact’s other features. As Jonathan Crowe explains, when studying an artifact, an analyst needn’t and shouldn’t expect “an exhaustive list of defining properties”; it “seems more appropriate to [identify] a list of characteristic features.”55 An artifact’s nonfunctional features, however, are explanatorily posterior to its intended proper function.56 Because an intended proper function identifies the artifact’s distinctive end and means, it informs makers and users what nonfunctional features it needs to have and how those features need to be organized. Thus, to continue with our study of the common chair, the materials and shapes that seem typical for chairs are so typical because they seem reasonably likely to perform the typical chair’s intended proper function. In what follows, I’ll call this general approach a “function-oriented” strategy.57 This function-oriented strategy refutes the first objection discussed in Part I, that property rights seem ontological manys with no constitutive features. This objection seems persuasive only if one ignores the role that a function plays in an artifact, but a function can constitute an artifact. In addition, a function-oriented strategy also suggests how one might respond to the third objection, that property rights vary too much to have any internal consistency. In some cases, an intended proper function leads onlookers to differentiate between objects that look and are made alike. Ornamental and ladder-substitute chairs resemble ordinary chairs because they possess the shapes ordinarily associated with ordinary chairs; they differ from ordinary chairs because they lack such chairs’ intended and proper function. Yet an intended proper function can also lead onlookers to classify objects with different forms and material elements as instances of the same artifact. Even though analog clocks, digital clocks, and speaking clocks have different parts and designs, all tell time via mechanical means.58 Analog, digital, and speaking clocks are all clocks at least in part because they perform the same intended proper function. C. Institutional Artifacts As the last section showed, artifacts possess functions and such other nonfunctional features as seem reasonably likely to perform that function. We can make one further generalization about artifacts with the characteristics of property rights. Property rights operate by being enforceable in social and political conventions. Thus, it also seems in the nature of a property right to be conventional in social life and law. Consistent with scholarship on artifacts, I’ll refer to the requisite conventionality as “institutional status.” In the last section, I introduced functions and function-oriented methods with two relatively simple artifacts, chairs and clocks. Yet chairs and clocks are both “ordinary” artifacts, while property rights are “institutional” artifacts. The categories “ordinary” and “institutional” distinguish artifacts depending on whether they perform their functions via institutional status. An object possesses institutional status when it supplies a point of reference for people in a community. Institutional status obligates members of a community to accept the object as a conventional marker on the topic it covers, and it obligates community members to participate in coordinated intentional behavior.59 In Searle’s café scene, institutional status explains why the waiter would accept credit or the local currency in payment for the beer but not a payment of equivalent value in Monopoly money. Property rights resemble fiat currency because they operate by means of institutional status. Searle’s café scene confirms that much. The beer is covered by absolute ownership, and it is owned specifically by the café employing the waiter. The customer and the waiter both understand what ownership property signifies. Both understand also that, if the customer wants the beer, he must follow the steps that the café lays out as conditions for disposing of its beer. D. Some Limitations on the Analysis of Artifact Concepts As this part has shown, function-oriented philosophical methods supply some insights about the natures of property rights and other objects in social life. Before proceeding any further, we should probably consider some of the limits on those insights. Most important, we need to keep in mind the two limitations I recognized in the Introduction: Informative analysis of an artifact concept does not legitimate or justify that concept, and an analysis of one or a few particular concepts associated with an artifact may not say everything that could be said (in metaphysics) about the artifact or (in conceptual analysis) about related concepts. Here is another limitation to mind. Precisely because they are organized around functions, “[a]rtifactual kinds are notoriously malleable and historical in nature.”60 An artifact may cease to be associated with one function and come to be associated with a new function. Although “knickers” used to represent men’s breeches, they now represent loose-fitting sports shorts in some usages and a form of women’s underwear in other usages.61 Institutional artifacts seem even more susceptible to change than ordinary artifacts. As “health insurance” takes different meanings in traditional usages and in a system of universal health care, so “property rights” can and do vary with the justifications and functions that different communities attribute to them. Yet these complications do not make conceptual analysis impossible or useless. Complications like these only remind us that we need to keep our conceptual expectations modest. The natures of artifacts are contingent on the functions that particular communities associate with those artifacts. So too for the concepts by which those artifacts are represented in different communities. Another possible concern is arbitrariness. In the field of intellectual history, Santayana warned against picking out an intellectual trend as someone might pick his friends out of a crowd.62 Although function-oriented conceptual methods can raise similar complications, I hope this article avoids such complications. In what follows, I’ll show that a few particular property concepts: seem prominent in practice; inform how people understand and transact with the general concepts they represent; and coordinate social behavior around a common artifact function. The function central to those concepts is not the only function around which a system of property might be organized. As Part I explained, however, in recent scholarship it is claimed that different property rights have “no substantive, essential connection to each other.”63 If a function can supply connections between various legal property rights and between particular concepts prominent in practice, then functions probably give property concepts more structure skeptics claim. Finally, when concepts incorporate and are organized around functions, they may not seem determinate. As speaking clocks and ornamental chairs both confirm, artifact concepts turn out to be much fuzzier than they may seem at first blush. And other artifact concepts are far fuzzier than the concepts for clocks or chairs. Wittgenstein famously used the concept game to ridicule so-called classical accounts of concepts.64 Similarly, it seems difficult to identify any single concept that accounts for all of the usages by which people speak of rights.65 Since property rights are rights, if we cannot render rights-concepts precisely then property concepts should be indeterminate. This objection is taken more seriously than it should be. As Aristotle explained, a judicious analyst should expect “only that degree of accuracy that the nature of the subject permits.”66 Artifact concepts can be determinate when they satisfy specific needs by specific and uniform means. But not all artifacts or artifact concepts satisfy those criteria. Games certainly do not, and Wittgenstein led a lot of analysts down the wrong path by suggesting otherwise. Wittgenstein encouraged readers to test whether all games share one or more specific and formal features—such as dice, boards, cards, playing fields, or specific conditions for victory. Yet the field for games gets its coherence and structure from two features, namely games’ having constitutive rules and being engaged in for a function of playing.67 Although rules and playing are both indeterminate features, that indeterminacy shouldn’t concern us. It is informative and illuminating to know that games constitute exercises in rule-bound play, and we can understand why a community might develop a concept as adaptable as the field of rule-structured play activities is wide. And what I just said about games can be said with equal force about rights. We can grasp a sense in which a right refers to some sort of claim, specifically a claim structured as seems likely to respect and facilitate valuable personal interests.68 And we can appreciate readily why a community might maintain a shallow but wide concept for rights. The situations to which rights are relevant can vary widely. So can the interests that different people bring to different situations. No concept that applies to so many situations or interests can be terribly determinate. Now, a context-sensitive concept of rights might still seem unsatisfying, for it may seem too pliable to provide security to right-holders or clarity to duty-holders. But judgments like these are not analytical but instead evaluative. Let me recapitulate what this part has shown. A property right seems a clear example of an institutional artifact. Although institutional artifacts seem extremely malleable, in metaphysical terms we can expect three things from them. Any institutional artifact should have at least one artifact function. Once that artifact function is identified, it should generate nonfunctional features that seem typically likely to perform the function. And since institutional artifacts are institutional, one of those nonfunctional features should be the possession of institutional status. Of course, these features leave particular communities considerable latitude to shape property rights in different ways. Different communities may differ in relation to: the things to which property rights can apply; the specific values property rights can further; the distinct means by which property rights produce that value; or the nonfunctional features (besides institutional status) that seem likely to reduce those means into stable practices. In short, not many natural features have been attributed to property here at the level of metaphysics. Even so, those features—and especially the function—can still give surprising focus to property in practice. In the rest of this Article, I hope to show as much. I hope to do so by way of a close study of three particular concepts representing the general concepts introduced in Part II. IV. Accounts of Three Property Concepts The particular concepts we’ll study here possess four features each. Two of those features correspond to the two features given attention in the last part—(1) an artifact function, and (2) institutional status. The concepts under study here possess two further constitutive features. Those concepts (3) apply to a distinct subject matter, namely resources in the domain of non-personal, external, or (my term here) “separable” resources. And those concepts perform a common function specifically by assigning institutional status to (4) distinct jural relations. In the three concepts under study, the first three features are identical. The concepts differ because they differ in the jural relations they require of different proprietary relations. A. The Intension of an (Unqualified) Property Right 1. An Account of the Intension We can start with the concept for an unqualified or simple property right. In that concept, a property right (1) performs an intended proper function—to facilitate use of the relevant resource in a specialized sense of “use.” A property right facilitates use in that specialized sense specifically by (2) establishing that a given right has institutional status in law and also in social norms. Such rights are established in relation to a distinct domain of resources, namely (3) non-personal, external, or (my term here) “separable” resources. And the right institutionalized in relation to such resource has a distinct character; it consists of (4) a jural relation that is in rem and at least as robust as a “right.” Let me explain each of these features at greater length, starting with (1) the function of facilitating use. In a very wide swath of Anglo-American common law, property’s intended proper function is to facilitate people’s pursuit of their interests in using ownable resources. The “use” in these interests requires considerable elaboration, and I hope to provide that elaboration in the next two parts. For the moment, however, we can at least stipulate that use needs to be understood capaciously. Use refers to activity on a resource by which a person derives rational gratification from engaging with it. The engagement must be serious—not idle or intermittent interaction but purposeful deployment under regular supervision. The engagement must also be sociable. Since all people have some interests in using ownable resources, any one person’s interest in use must be correlative with other’s similar interests. In what follows, when context requires I’ll refer to this capacious sense as “purposeful, beneficial, and sociable engagement” with a resource. Next, property rights perform this use-facilitating function by (2) being assigned institutional status. Any property right satisfies this requirement simply by being a familiar, secure, and obligatory relation, in both law and social morality. In the last two paragraphs, I have spoken of property rights as applying to a field of ownable resources. That field refers to the subject matter of property, and that subject matter is delineated by (3) the domain of property. Property rights arise in “things” somehow distinct from “personality-rich” objects. In James Penner’s formulation, a resource is separable, and thus an appropriate candidate to be protected by a property right, only if it is contingently associated with the person exercising the right.69 This test of separability illuminates why land, chattels, the use of water, money, interest, shares, mutual funds, and intellectual works all seem appropriate candidates for property rights. The same test also illuminates why a right-holder’s body, faculties, and capacities all seem inappropriate objects of property law. All of these latter various attributes seem to inhere in people; they seem too intertwined with the people who claim rights in them to constitute property. Finally, a property right needs to constitute (4) a right of a certain strength and character. As for strength, a property right confers on its holder at least one immunized claim-right. A property right entitles its holder to engage with a resource in some recurring situations. That sphere of engagement is marked off by one or more rights to be free from interference; in Hohfeld’s apparatus the right or rights constitute claim-rights. Each claim-right is protected by being declared relatively irrevocable; in Hohfeld’s apparatus that irrevocability is fairly portrayed as an immunity. This immunity and claim-right represent the strength of a property right but not its character. The immunized claim-rights in property rights are in rem rights. In rem rights need to be understood in contradistinction to in personam rights—rights (literally) “against a thing” as opposed to rights (just as literally) “against a person.” Now, these definitions of in rem and in personam are somewhat rough, and they may engender confusion. In remness and in personamness do not describe the subject matters of the rights described. People can be entitled to in rem rights protecting their persons (the right to bodily integrity) or personal attributes (the right to an accurate reputation), and (as we’ll see) they can acquire in personam rights in relation to articles of property. Separately, from the fact that an in rem right is a right as against a thing, it doesn’t follow that a right-holder is protected from any and all interference with the thing no matter what effects the right may have on duty-holders. Like any other right, an in rem right institutes triangular normative relations, between (1) an obligor, (2) and an obligee, with respect (3) to a specified subject matter. In rem rights differ from in personam ones in what John Austin called “their compass,”70 in the specific facts the prospective duty- and right-holder need to know to ascertain whether they are (respectively) obligated and protected by a right. In the civilian tradition, a right is in rem if it is “homini competens, sine respectu ad certam personam”—“belonging to a man without regard to any determined person.”71 In his introduction to the English law of restitution, Peter Birks distinguished between in rem and in personam obligations on the basis of their exigibility, the conditions that need to be established for an obligee to be entitled to demand performance of the obligation by the obligor. For Birks, an obligation in rem “is one whose exigibility is defined by reference to the existence and location of a thing,” while an obligation in personam “is exigible against a person by virtue of a contract, wrong, unjust enrichment, or other event.”72 In what follows, I’ll follow Birks’ formulation of exigibility. As Penner explains exigibility, in rem obligations “block … any content which has to do with the specific individuality of particular persons from entering the right-duty relation,” while in personam ones “have as part of [their normative] content some reference to the actions, intentions, or personal histories of the beneficiaries who are the correlative right-holders.” In this sense, a promise establishes an in personam obligation because one can determine whether a promissory obligation exists by ascertaining whether the promisor made the promise. But the right to bodily security constitutes an in rem right because people do not need to know anything about the wishes or life histories of others to know they must not touch those others without authorization.73 Under Birks's understanding of exigibility, property rights are in rem. Property rights are structured to protect the interests of proprietors as a general class. Thanks to that structure, property rights abstract from the intentions and the life histories of specific proprietors. And when a person does not hold property in relation to a resource, the duties he owes the proprietors are correspondingly impersonal and general. A non-proprietor may owe duties to a proprietor without ever having interacted with the proprietor in the past, and a non-proprietor does not need to know who holds a proprietary right in relation to a resource to perform his proprietary duties in relation that resource.74 2. Easements and Bare Licenses The account of a property right provided in the last subsection illuminates how people distinguish between jural relations that seem property rights and ones that do not. For example, that account explains our intuitive judgments (as explained above in Part II) about easements and bare licenses. Easements and bare licenses certainly resemble one another. Both satisfy the separability requirement, because land is clearly separable from the persons who occupy it. Easements and licenses both possess institutional status, simply by constituting accepted and familiar instruments of property law. Furthermore, the easement and the license both facilitate use in the capacious sense described in the last section. The etymology for “easement” confirms as much. Easements are sometimes called “uses,”75 and the term “easement” itself comes from the old French noun aisement, translated as “comfort,” “convenience,” “use,” or “enjoyment.”76 And substantively, easements and licenses expand the uses that owners and non-owners can both make of land. Easements and licenses facilitate use for non-owners simply by giving them familiar instruments to access land from which they would otherwise be excluded. But both instruments facilitate use by land owners as well. Owners have many different reasons to grant others regular and secure access to their lots. (Profit, improving their lots, forging social relationships, or getting reciprocal access to others’ lots.) Yet owners also have many reasons to specify carefully the conditions in which they wish to allow access. (Preserving privacy, preventing possible property damage, or protecting ongoing land uses.) Easements and licenses thus help owners in two respects. They empower owners to derive new uses of their lots while also protecting existing uses.77 Easements and licenses differ from one another, however, because the former possess and the latter lack the formal features a proprietary relation must possess to count as a right. A bare license is in black-letter law “terminable at the will of the creator landowner.”78 Because of that terminability, a license establishes at most only a dubious claim-right, and it does not establish an immunity. By contrast, an easement vests in its holder a claim-right, to be free from unauthorized interference with the activities authorized by the easement.79 Furthermore, this claim-right is immunized, precisely because an easement is not terminable at the will of its creator and interference with an easement is preventable in equity. Finally, licenses and easements illustrate powerfully the distinction between in personam and in rem jural relations. “If A owns Blackacre” and issues a license, “it matters to A who [the licensed entrants] are, and it matters to them who A is.”80 In other words, a license is exigible only on the basis of information about A’s conduct and the identities of the licensees—as in personam rights are. Once an easement is granted validly, by contrast, the holder is entitled to access to the servient estate. To establish that he holds a right, the holder does not need to demonstrate anything about the identity, the conduct, or the intentions of people obligated to respect the easement. He does not need to know who the lot owner is; if ownership of the servient estate changes hands, the responsibilities associated with the easement transfer from the outgoing owner to the incoming owner.81 And the easement entitles its holders to be free from interference not only by the owner of the servient estate but also by any third party not exercising a valid and relevant easement of his own.82 Such third parties need not have interacted with the holder of the easement to owe duties of non-interference. The duties are in rem rights and obligate, as it were, by the mere existence of the easement and the servient estate. 3. A Beneficiary’s Interest in a Trust Subsection A.1’s account also illuminates why the interests that beneficiaries hold in wealth-management trusts seem property rights. Beneficiary interests clearly possess two of the features possessed by easements. Beneficiary interests satisfy the separability requirement as long as the resources in the trust corpus satisfy that requirement. Trusts and beneficiary interests also possess institutional status, simply by being accepted and familiar instruments of property law. Trust interests may not seem to facilitate use. After all, a trust beneficiary does not use trust income anywhere nearly as actively as the owner of a servient estate or an easement-holder uses land. Before we conclude that beneficiary interests do not facilitate use, however, we should reflect on the fact that the earliest recognized trust interests were called “uses.”83 And if we think about use capaciously, we can understand why that name fits. The settlor uses the trust to carry out whatever supportive, philanthropic, or other intentions he wishes to pursue with his wealth. By granting others legally-enforceable beneficiary rights, he gives them more security to apply proceeds from the trust for their own gratifying goals. So the settlor and the beneficiaries use the trust’s corpus, in the purposeful, beneficial, and sociable sense of “use.” Trust beneficiary interests may also seem too weak to satisfy the requirements of a formal right in the sense elaborated in sub section A.1. Even so, in black-letter law, a beneficiary is regarded as having “a type of property right to the contents of the trust,” and specifically in virtue of being entitled to “‘the beneficial enjoyment of property to which another person holds the legal title.’”84 And sub section A.1 renders this conclusion coherent with general property concepts and with easements and other property rights. A trust beneficiary possesses several claim-rights. All are correlative to the duties that trustees owe beneficiaries. A trustee owes beneficiaries a fiduciary duty of prudent corpus management. That duty entails a correlative “right … that the trustee exercises his power of title to give the beneficiary the legal benefit of the property either” in kind or by future transfer of income or capital generated from the corpus.85 Similarly, a trustee owes duties of loyalty, impartiality, record-keeping, and notification, and each of these duties corresponds to a correlative claim-right.86 All of these rights are immunized because all last, are enforceable in court, and are protected from challenge as long as the trust exists. Even more telling, these claim-rights usually apply via in rem norms. To be sure, a settlor can confer powers to a trustee in his personal capacity. Nevertheless, in more trusts an office of trustee is established as part of the trust.87 When a trust establishes an office of trustee, to know their rights beneficiaries only need to establish that a trust and a trustee exist; they do not need to know what duties the trustee has committed to discharge. In other words, as between beneficiaries and the trustee, beneficiary claim-rights are exigible in relation to the relevant res and not any personal conduct of the trustee. At least as telling, the duties created by a trust can obligate third parties in rem. If a trustee transfers trust benefits to non-beneficiaries in violation of the trust’s terms, the transferees owe duties not to use their ill-gotten benefits in ways inconsistent with the trust beneficiaries’ interests.88 The trust establishes general, impersonal, and in rem duties on everyone who is not a beneficiary, not to interfere with the beneficiaries’ rightful uses of the trust’s corpus. B. The Intension of Ownership Property Now that we grasp the intension for an unqualified property right, we can grasp also the intension for ownership property. In the practice under study here, the concept for ownership property is subsumed within the concept covering property rights simpliciter. Ownership rights are instituted in relation to the same separable resources as all other property rights. They perform the same use-facilitating function as all other property rights, and they perform that function using the same basic institutional status designations as all other property rights. The rights that establish rights of ownership constitute a subset of property rights in the unqualified concept for property; that is why the extension for the former is subsumed within the extension for the latter. As Honoré explained, ownership may be defined as “the greatest possible interest in a thing which a mature system of law recognizes.”89 Such an interest confers on a single owner broad authority to manage the resource owned. Ownership also entitles the owner to a wide range of privileges (to determine how to use and enjoy the owned resource) and powers (to license and contract involving the resource, or to alienate some or all of it or its fruits). To enjoy all of this authority, however, an owner needs protection from interference. And that protection is provided by a cluster of in rem and immunized claim-rights, tailored to protect control, use, and disposition of the resource given its most likely uses.90 Although some readers may wonder why or how the word “property” can refer to two rights of different strengths in different circumstances, this context-sensitivity shouldn’t seem so surprising. To open readers to the possibility that “law” is an open-texture concept in The Concept of Law, H.L.A. Hart asked them to reflect on how the word “railway” applies both consistently and differently to trains, stations, travel networks, employees, and companies.91 Now, “railway” differs from “property” in that all of its different adjectival usages apply a single concept. Yet words can and often do evoke different but related concepts. In a lay sense, “discovery” covers the making known of unknown things; in a legal usage, the word refers to the process by which parties to litigation obtain information from one another before trial.92 To be sure, for “discovery,” the lay usage is broad and the legal usage is specialized, while the reverse holds true for the more technical and ownership-based usages of “property.” With both words, however, people seem capable of understanding how one word can refer in different usages to a subsuming concept and a subsumed concept. And the differences between “discovery” and “property” just provide further proof that people are capable of adapting their words and concepts to their social needs. C. The Intension of Property As a Field of Law and Social Morality As Part II explained, in Anglo-American law the word “property” also refers in some usages to a third concept, a field of law and social morality for usable resources. This concept subsumes both ownership property and the field for property rights simpliciter. This concept illuminates why and how people associate bare licenses with property. Even though (as section A.2 explained) a revocable license lacks an immunity and the character of being in rem, such a license still seems to relate to property in some manner because it institutes a Hohfeldian jural relation to facilitate the use of land. The same holds true for many other jural relations too weak to count as property rights—the interests that members of the public have in accessing a public commons, or the inchoate interests that people have in acquiring resources res nullius before such resources have been appropriated. All such relations belong in property understood as a field of law and social morality—as long as they have institutional status, in relation to separable resources, and are instituted to serve the function recounted above. Here as in the last section, some readers may wonder how a single word “property” can refer not only to several rights-concepts but also to a concept representing a general field of jural relations. Once again, however, these usages shouldn’t seem surprising. Bare licenses, interests in commons, and inchoate acquisition interests all relate to easements and trust interests in a manner similar to the manner in which magistrate judges relate to ordinary judges. A magistrate judge is not a judge in an unqualified sense, a judge who has authority sufficient to enter a final judgment. Even so, the office of magistrate judge belongs in a system of judging or adjudication as a license belongs in a system of property. V. Use and the Interest Justifying Property Rights Now, the last part supplied only thumbnail overviews of the concepts under study. Those overviews are sure to invite further questions—especially in relation to the function constitutive of all three concepts. I hope to address such questions in this part and the next one. In this Part, I hope to anticipate some possible sources of confusion about the meaning of use. In dispelling potential confusion, I also hope to show why and in what senses use constitutes an interest that might be served by property concepts. A. Use As Active Deployment Versus Use As Purposeful and Beneficial Engagement Let me start with one obvious and understandable source of confusion. As a word in English, the primary meaning of “use” means something like “active employment of an object for a specific service or purpose.” (Think of “the use of a whisk to beat eggs.”)93 Lawyers assume such a meaning when they equate the use of land with the deployment of a lot of land to some specific activity like farming or residential living. Nevertheless, in a secondary meaning “use” refers to a more capacious and context-sensitive form of engagement with an object. In this meaning, “use” refers to deliberate, beneficial, and justifiable engagement with an object. That secondary meaning is the one assumed in the concepts introduced in the last Part. B. Purposeful and Beneficial Use: In Dictionaries, in Legal Maxims, and in Natural Law Philosophy on Property That capacious and context-sensitive meaning may be explained in one of several ways. We might survey how property has been justified by prominent statesmen and thinkers who have treated the field with principles familiar from natural law and flourishing-based metaethics: St. Thomas Aquinas,94 Hugo Grotius,95 Samuel Pufendorf,96 John Locke,97 and William Blackstone, to name a few.98 Yet that sort of argument might lead some readers to conclude that our main focuses here are intellectual history or normative natural law theory—and not conceptual analysis. Alternately, we might survey the various semantic meanings in which “use” is understood capaciously. In ordinary English, lay people grasp what is meant by “the use of one’s faculties” or “the use of a course of action” even though in neither of those phrases does “use” mean active deployment.99 This capacious sense looms even larger in the practice of property. As the last Part noted, easements and beneficiary interests are both sometimes called “uses.” And this sense governs the meaning of “use” in a maxim crucial in property law: Sic utere tuo ut alienum non laedas, or “Use your own so that you don’t injure someone else’s.”100 That sort of survey, however, might lead some readers to conclude that our inquiry is primarily semantic. Again, we are interested primarily not in semantics but in the concepts that give different semantic meanings their relevance in different property-related contexts. C. Property Rights and Legitimate Authority To pursue this conceptual inquiry, we must study how property concepts interact with the needs, desires, and values of the people who are expected to accept and use the concepts. Like all other institutional artifacts, property rights raise concerns associated with legitimate authority. Those concerns can be addressed. To address them, however, a community must structure its property rights at least to respect the concerns that individual members might reasonably raise about property rights. In other words, when a community designs property rights, it must make at least a good-faith effort to recognize the individual interests of community members. And whatever other merits or defects it may have, the capacious meaning for use described here makes such an effort. Why do property rights raise problems associated with legitimate authority? Because such rights are institutional artifacts. As section III.C explained, by definition, an institutional artifact imposes obligations on the members of the community in which the artifact is institutionalized. Those obligations may be backed by legal compulsion, social sanctions, or both. No matter how the obligations are enforced, the compulsion and sanctions seem illegitimate until specifically proven to be legitimate. At least in principle, some members of the community may believe that an institutional status convention prevents them from pursuing goals they want to pursue. And anyone who harbors such a belief may ask why the community has authority to compel him to accept and use a status convention he finds objectionable.101 Of course, in practice, most familiar institutional artifacts can meet this burden of justification. Consider fiat currency. It is easy to imagine a protester complaining that a fiat currency denies his freedom to deploy during exchange a wide range of objects that are not recognized media of exchange. Yet it is also easy to understand why this complaint seems specious. People in a community are freer and more secure to exchange in a regime with a fiat currency than in a regime in which, during every negotiation, prospective partners dispute what medium of exchange they should accept. Important here, this justification applies to every individual in the community. When a fiat currency facilitates exchange and increases prosperity in a community, it is not only “the community” that benefits; the increased capacity and prosperity seem likely to benefit every member of the community. That characteristic—the justification’s redounding to the benefit of community members as individuals—addresses the legitimate-authority problem. When a community establishes an institutional artifact, the conventions it establishes need to be accompanied by a reasoned justification. The likely justification is obvious: An institutional status convention seems likely to help everyone in a community engage in concerted activity that all are likely to find gratifying. Yet it needs to be shown that most or all members of the community are likely to derive gratification from the activity. And it needs to seem so likely that the status convention produces such individual benefits that the community has authority to impose its collective view on individual objectors even if such objectors disagree with the collective view in good faith.102 D. Use As the Basis of an Interest in Separable Resources In short, the features that make a property right an institutional right raise questions about whether a community can justify the right adequately. Such a justification must address the needs and values of the individuals who will be obligated to accept and use the right. That being so, we need an analytical term capable of connecting a community’s assertion of authority to the claims of individual members of that community. Although that connection might be studied in different ways, many analyses of social concepts describe it via “interests.”103 Since Raz and Joel Feinberg helped introduce interests into analytical discourse, I’ll follow their accounts of interests here. In Raz and Feinberg’s usage, an “interest” constitutes a distinguishable component of a person’s well-being.104 Interests mediate between the claims individuals make as individuals with the claims they have as members of larger communities. On one hand, since an interest contributes to one person’s well-being, it refers to a good that its holder desires and pursues without any additional motivation. Raz distinguishes between values and interests on that ground; for Raz, when an object has value everyone must produce that value, but when an interest exists it obligates individuals only to the extent that they find the interest gratifying and desirable.105 On the other hand, an interest must be defensible, capable of being justified by reasons defensible in moral evaluation undertaken with a “practical critical attitude.”106 On this basis, Raz distinguishes between “desires,” individual wishes that can emerge from transient or “spontaneous” impulses, and “interests,” which are “reason-based.”107 To emphasize this link between individual interests and reasons, in what follows I’ll refer not to interests but to “reason-based” interests. “Interests” describe the concerns that individuals raise about community policies that threaten them as individuals; the “reason-based” character of interests captures the way in which assertions of interests need to be reconciled to one another and to community goods. This background helps us understand “use” as a term of art in the concepts introduced in the last Part. The use central to those concepts constitutes use capable of supplying a reason-based interest. Property rights raise the same concerns about coercion and legitimacy as fiat currency and all other institutional artifacts. That being so, any function associated with property rights must be capable of supplying such rights with legitimate authority. The most daunting challenge is to make property rights seem legitimate to the people excluded from any access to any particular resource. When a community institutes a property right in relation to a resource, it must supply a reasoned justification why non-proprietors’ interests in acquiring and using things may be advanced later by denying them access to the resource in dispute here and now. An interest in using things may not constitute the only interest people might justifiably claim in property. But an interest in using things can constitute a reason-based interest in the sense described here. On one hand, use constitutes activity desirable to an individual from his individual perspective. After all, use recognizes as deserving of protection any purposeful activity likely to benefit the actor. On the other hand, since interests must be “reason-based,” they must be rationally justifiable and generalizable. The interest in use satisfies this constraint because it construes use sociably. Even though a person is entitled to broad discretion to determine why and how to use resources for his own life goals, that discretion must be structured to respect others’ correlative interests. The property rights we studied earlier illustrate the same constraints. As subsection IV.A.2 showed, easements facilitate use by their holders and the owners of servient estates. Yet easements also implicate legitimate interests of neighbors, insurers, lenders, and prospective purchasers. Those interests explain why easements tend to be accompanied by regulations giving onlookers reasonable notice that easements exist. Similarly, as subsection IV.A.3 showed, a trust facilitates use by the settlor and beneficiaries. Yet a trust also threatens interests of people who may be denied access to the trust’s corpus in the future. Those interests explain why trusts tend to have doctrines for modification or termination in response to changed circumstances. In both cases, background regulations and judicial doctrines focus property rights to apply in act-situations in which they are likely to facilitate the uses of specific parties—without threatening the reason-based interests of others who might reasonably complain that the rights are illegitimate. VI. Use-Facilitation as the Function of Property Now that we understand what it means for people to have reason-based interests in using things, we can understand more clearly the function in the three concepts introduced in Part IV. In those concepts, the function of property is to facilitate people’s uses of resources, consistent with their interests, on terms in which those interests may persuasively be said to be defensible in relation to objective reasons. Thanks to this function, the concepts under study perform several overlapping roles in the practice of property. The function supplies a mechanism for channeling and resolving disagreements about resources and their use. When such disagreements can be resolved, the function helps delineate the nonfunctional features likely to perform the function; it generates a typical formal template for a property right. Last, the function facilitates practical reasoning; it supplies practical guidance to lawyers and public officials as they adapt the typical formal template to different resources and resource-uses. Let us consider each of these roles in turn. A. Use-Facilitation and Legitimate Authority First, use-facilitation supplies a community with a mechanism for channeling and resolving potential disputes over access to and use of resources. To navigate the controversies that property rights create, a community needs a common vocabulary. Members of the community must be able to express their demands why they should be entitled to property they hold—and to better access to property from which they are currently excluded. Community members must also expect, however, that such demands will compared with similar demands pressed by other members of the same community. An interest in purposeful, beneficial, and sociable use at least tries to supply a point of reference for social and political discourse.108 When people argue about property rights, they are likely to start by defending their claims in relation to the specific uses they intend to make of the resources in dispute. When many people press reasonable claims, however, they must all generalize. The arguments that arise are often difficult to resolve, because many legitimate uses of property are hard or impossible to make commensurable with other such uses. Nevertheless, a community needs to develop some rules of reason ordering different uses of resources. Among other factors, such rules of reason must consider: whether some uses seem extremely urgent, i.e., necessary for the preservation of human life; whether a claimed private use seems likely to produce new resources capable of being used productively; whether a claimed private use can be reconciled with others’ concurrent uses of the same resource; and, when private uses conflict, whether the community can reconcile the conflicts via relatively general norms like boundary rules. The rules of reason that emerge explain which use-claims are claims for sociable use, and which alleged interests in property are genuine reason-based interests in property. Such settled rules give a system of property the legitimate authority it needs. B. Property’s Function and Its Non-Functional Features Not only does this function legitimate property, it also explains the structures of property rights. As section III.B explained, an artifact’s function justifies its non-functional features, and it explains what features the artifact needs to possess. In the property concepts under study, then, use-facilitation explains the three non-functional features possessed by property rights.109 The separability feature exists because it helps distinguish between so-called “personality rich” resources and the resources appropriately covered by property norms. For bodies, reputations, personal faculties, and personal liberties, the people to whom those attributes belong (note the verb) normally deserve priority to direct their use. As for resources that are not closely connected to any person, however, “since we are all fundamentally each other’s equals as persons the only reasonable normative baseline is that all those resources are to be treated at all times as for the benefit of everyone.”110 That baseline does not stop any single person from acquiring priority to use or enjoy a resource. But the baseline does require any prospective appropriator to show that his use of that resource seems consistent with others’ correlative use interests. However roughly, separability focuses property concepts on the resources to which that justificatory challenge applies. Use-facilitation also explains the other two features of a property right—the precise jural right and the institutionalization of that right.111 Assume that it is settled in a community that all of the relevant use interests are served by giving one class of individuals priority over a resource, in some specific recurring act-situation, in relation to everyone else in the community. That normative priority constitutes a claim-right and an immunity.112 Since the priority gives the right-holder priority in relation to everyone else, it needs to be enforceable against everyone and it seems likely to be more effective if it is enforceable in a general and impersonal way. That imperative justifies making priority-claims in rem entitlements and not in personam ones. And all of the justifications that justify recognizing such an in rem right also justify institutionalizing the right in law and in social conventions. C. Property’s Function and Practical Reasoning Finally, this same function informs practical reasoning about the content and scope of specific proprietary relations as they apply in different specific contexts. Not all artifact concepts need to be structured so that they apply with close sensitivity to context. But we can imagine why a community might make a given concept context-sensitive. A concept can institute a presumption for a specific policy; context-sensitivity can vary the strength of the presumption depending on how well conditions in real life match the conditions expected by the presumption. For example, when the Soviet Union was collapsing circa 1990, Moscow residents starting using Marlboro cigarettes as black market currency. Muscovites seem to have assumed that the ruble was to be judged by how well it facilitated commercial exchange. Rubles ceased to seem fiat currency, and Marlboros came to seem a second-best substitute, because the former failed to perform and the latter seemed to succeed at performing currency’s function.113 The concepts introduced in Part IV operate in the same manner. Those concepts apply to property as a category covering an extremely wide range of jural relations relevant to an extremely wide range of resources. As section A explained above, however, all of the property rights covered by those concepts are expected to remain legitimate. These two expectations create tensions. For better or worse, the concepts introduced in Part IV are structured to avoid the tension. The concepts for property rights require some minimal common features—in particular, the in rem and immunized claim-right facilitating use. As long as that minimal threshold is satisfied, however, the scopes of different claim-rights may vary consistent property’s function. The function guides practical reasoning about the structure of the formal rights. D. Illustration: Running Covenants To see these various roles in operation, consider the one property doctrine raised in Part I and not yet discussed—the running covenant. As Part I explained, the running covenant seems a confounding example against broad conceptual accounts of property. Far from it; it confirms all three of the claims made in this part. To understand why, we need to understand the contributions that running covenants make in legal doctrine. Running covenants establish a substitute in property doctrine for standard formal rights available via contract law. Assume that neighbors G and B own (respectively) Greenacre and Blackacre. Assume also that G makes to B a promise, definite and backed by consideration, that she will build and use nothing on Greenacre other than a single-family residence. We can appreciate why G and B’s interests might both be facilitated by making such a promise legally enforceable. Yet we can also appreciate why contract law might limit each party’s right to demand perfect enforcement of those promises.114 Obligations are never indefeasible; circumstances can change in ways that justify or at least mitigate breaches of interpersonal obligations. Yet we can also appreciate why G and B might find such contractual rights unsatisfying. G and B may reasonably want to precommit one another and their neighborhood to a specific set of land uses. They might all derive benefits from living in a community with a common way of life, a common aesthetic character, fewer nuisances, or well-ordered development. In addition, G and B may want to be free of contractual obligations relating to their neighborhood if and when they ever move out of it. Concerns like these justify practical reasoning. And among its other roles, a function-oriented property concept facilitates the exercise of such reasoning. Such a concept prompts people to ask: If we converted land-based contractual promises into some sort of property rights, would we facilitate the use of ownable resources? Some readers might think the answer is, “No.” After all, covenants restricting land uses entitle their holders to veto land uses by neighbors.115 But that impression assumes three major conceptual mistakes. First, the impression equates use with the active sense we associate with the use of a whisk or the use of an easement. As the last part explained, however, in the concepts under study use encompasses a wide range of activities engaging purposefully with a resource for some beneficial goal. That mistake leads to a second one, to assume that the person “using” the covenant is the owner of the burdened estate. Once we grasp that use covers a wide range of purposeful engagements with things, we can grasp the sense in which someone who holds a covenant uses it. When a covenant locks in some land uses and prohibits others, neighbors can derive communal, aesthetic, or preservation-related uses from the lot burdened by the covenant. Most important, the impression just stated misapprehends the roles that artifact functions play in artifact concepts. A function does not constitute a “universally quantified condition,” as three-sidedness does for triangles.116 Rather, the function supplies a measure for practical reasoning about the artifact, and people cannot think about the artifact without associating it with that measure. In relation to running covenants, the imperative to facilitate use supplies normative guidance whether to adopt and how to design running covenants. To appreciate how covenants further those interests, we need to recall one more salient institutional detail: Running covenants are instituted when a developer develops a new neighborhood, and the developer almost always subjects all of the newly-developed lots to the covenants. So when the enforcement of “[r]eciprocal subdivision covenants” has the “practical effect … to benefit the burdened land,” the reciprocal covenants perform property’s function. Every owner in a development is burdened by such covenants. Yet covenants facilitate use if each owner derives more use from enjoying the common features of the development than he loses from forgoing more active land uses on his own lot.117 Not only do property concepts guide practical reasoning, they also supply forms for performing the function they embody. That is what the concept of an unqualified property right does in relation to a land-related contractual promise. A running covenant converts such a promise into a property right—if and when it seems warranted to do so. To test whether it seems warranted to convert a land-based promise into a proprietary right, covenant doctrine institutes two threshold requirements. An “intent to run” requirement asks whether the covenanting parties subjectively wish that the covenants bind them in their capacities as land owners and users—and not in their personal capacities after they have moved out of the neighborhood. A separate “touch and concern” requirement inquires whether the parties’ subjective wishes seem objectively reasonable, i.e., whether the covenants seem objectively likely to enhance residents’ enjoyment of the covered neighborhood.118 When a covenant satisfies these and other relevant requirements, it acquires the formal features of a property right. A running covenant possesses the strength of a property right, namely an immunized claim-right. A running covenant is easier to vindicate in a court of equity than a (mere) contractual promise would be, because ongoing violation of a running covenant is ordinarily presumed to be the sort of violation not adequately remedied via legal relief.119 A running covenant also possesses the character of a property right. A land-based contractual promise constitutes an in personam obligation. Since a running covenant is supposed to enhance use in the neighborhood, however, it makes sense to make the covenant an appurtenance to the lot it benefits. That is done by making the covenant an in rem obligation. To determine whether they are bound by or stand to benefit from running covenants, residents look not to the past promises of their neighbors but instead to the deeds and the obligations recorded in those deeds.120 And now that these in rem and immunized claim-rights seem legitimate instruments of property law, they possess the institutional status that all property rights need to coordinate people’s behavior. As section A explained, however, a use-facilitating function also helps community members grasp and express legitimacy concerns about property rights. To this point, the discussion in this subsection has focused on the use-interests of neighbors in a single development. Lest we forget, interests in use are limited by sociability constraints. That being so, land-based contractual promises should not be converted to property rights when doing so might restrict others’ opportunities to use land. If instituted without adequate formalities, covenants might blindside prospective buyers in a neighborhood. That concern explains why running covenants tend to be accompanied by notice requirements. Running covenants might also indirectly but inappropriately lock in land uses popular now but likely to go out of fashion later. That concern justifies doctrines terminating running covenants when land-use conditions change drastically. Running covenants might also deny prospective buyers effective access to land, by restricting land from being developed for their needs. That concern justifies public policy limitations on covenants. Doctrines like these protect outsiders; within the limits set by these doctrines running covenants can facilitate beneficial use among insiders in a neighborhood. In short, running covenant doctrine illustrates vividly how a property concept can simultaneously: supply forms for a pattern of resource allocation; guide practical reasoning how to fit those forms to the specific resources and uses in consideration; and confer the authority such a pattern needs to seem legitimate in law and social life.121 In other words, running covenant doctrine shows how an artifact function can inform and guide the implementation of a property concept. VII. Necessary Elements, Family Resemblances, and Focal Meaning With that, we have now addressed thoroughly two of the three sources of skepticism recounted in Part I. We need not worry that property concepts seem to represent composite entities. They do represent such entities, but they can still have coherent intensions. The concepts under study seem coherent and structured because they are organized around the features essential to institutional artifacts. Nor do we need to worry about the easement, the running covenant, or the interest a beneficiary enjoys in a wealth-management trust. These property rights are easy to account for with conceptual methods appropriate for artifacts and the concepts of property we have introduced. To be sure, we would need to consider many other property doctrines before we could say safely that the concepts presented here seem influential across a broad cross-section of common law.122 But the easement, the trust interest, and the running covenant are all supposed to prove that it is impossible to produce a comprehensive account of property. Surely it counts for something that the concepts introduced here can account for these so-called hard cases. That leaves only one objection from Part I: the objection that property concepts can only be described via family resemblance analysis. This objection seems to many scholars more formidable than it really is. Family resemblance analysis seems attractive—even inevitable—when it is portrayed as the only plausible alternative to analysis by identification of necessary and/or sufficient features. As Part III should have made clear, however, function-oriented analytical strategies differ significantly from strategies focusing on necessary or sufficient features. When concepts are structured around intended proper functions, they are best studied via their central, typical, or paradigm cases. Finnis calls the resulting analytical method analysis in light of a “focal meaning,” and since Finnis enjoys pride of place for his insights on focal case analysis I’ll apply his terms here.123 A. Artifacts, Functions, and Analytical Methods When an analyst applies focal meaning methods to an artifact and its concepts, he must first identify the function deemed intended for and proper to the concepts in the relevant community. He must then canvas as best he can the instances of the artifact that seem prominent in the community, and inquire charitably why those instances might seem reasonably likely to perform that function successfully in practice. For each concept, the instance that seems most typical and successful at performing the function constitutes its focal case.124 That focal case illuminates why other possible instances of the concept seem either peripheral instances of it or objects falling outside the concept’s extension. Focal meaning analysis does not make irrelevant either family resemblance methods or necessary and sufficient condition methods. But focal meaning analysis does make those other two methods derivative. On one hand, focal meaning analysis helps identify which object is the object whose necessary and sufficient features need to be identified. When an artifact’s function identifies a focal case, it identifies the case whose necessary and sufficient features need to be studied. As Andrei Marmor explains, when we try to identify the “[e]ssential features of an X” by identifying the necessary features of an X, we need to identify the “necessary conditions for central cases to be an X”—and then recognize that such conditions may not apply to “borderline cases along the way to marginal and deviant cases.”125 On the other hand, family resemblance analysis turns out not to be as arbitrary as it often seems. An artifact’s intended proper function supplies criteria on which masterful users rely intuitively when they identify resemblances and dissimilarities between objects that might all be covered in a concept’s extension.126 That insight explains how and within what parameters there are family resemblances among digital, analog, and talking clocks, or among coins, bills, and cigarettes. B. Necessary Features of Property Rights And whether we use focal meaning, necessary-and-sufficient, or family resemblance methods, the portrait of property rights offered in this article remains basically the same. As this article has shown, easements, running covenants, and trust interests can all be accounted for coherently as instances of property rights. These property rights are in no way distant family relations; at least in appropriate contexts all seem focal instances of property rights. Since those examples are not as hard to account for as property skeptics suggest, we should try to sketch a more satisfying account of property’s peripheral cases and outliers. Each of the three non-functional attributes of property rights generates a boundary area. For the separability requirement, borderline cases and outliers arise when communities institute property in resources that seem inseparable from the people trying to exercise rights over them. In recent years, there have been moves to recognize property rights in people’s body parts pre-removal,127 and in the legal interest in controlling the use of one’s identity in commercial endorsements.128 These developments render many onlookers uneasy. Decisions that recognize property rights in body parts or commercial identity seem to convert into rights of property rights that seem more personal—rights of (respectively) bodily integrity or personal reputation. As for institutional status, that feature makes into borderline cases contested or partially-recognized property rights. Robert Ellickson’s study of animal trespass norms provides a classic example. In some parts of Shasta County, California, local regulations required owners to fence their lots as a precondition for recovering for damage caused by trespassing animals. Ellickson discovered that animal owners did not stand on the rights those regulations gave them; they instead compensated for all animal trespass damage to avoid running afoul of property-protective local customs.129 The regulations recognized borderline rights with institutional status in positive law but not in social norms; the social norms recognized borderline rights with status in social custom but not in positive law. Similar things can be said about property rights in many parts of the developing world, where local communities recognize customary possession not recognized in state title records.130 And focal meaning methods illuminate the grounds for intuitive judgments that particular proprietary relations seem too weak to count as immunized and in rem claim-rights.131 Consider a borderline example between an easement and a license—a license made irrevocable by estoppel. On one hand, an irrevocable estoppel license is called not an easement but a “license.” On the other hand, such licenses are sometimes described as offering protection that is “the equivalent of … easement[s].”132 Irrevocable estoppel licenses are enforceable in equity, they last as long as seems necessary to protect the licensee’s justifiable reliance, and that equitable protection converts what would otherwise have been a privilege into an immunized claim-right. Back on the first hand, though, it isn’t well-settled in doctrine whether the benefits and burdens of irrevocable estoppel licenses run with ownership of the affected land (as in rem obligations do) or remain personal to the original licensor and licensee (as in personam obligations do).133 Our discussion illuminates why courts are conflicted. The normative reasons that justify a finding of estoppel don’t obviously mandate an in rem right, and in remness seems necessary to a property right. C. Nondefectiveness Standards for Property Rights That leaves the function for the concepts we have been studying—property’s capacity to facilitate purposeful, beneficial, and sociable use. As section VI.D explained, the function of any artifact is not necessary in the sense of being a universally quantified condition for that artifact. A function is necessary, however, in the subtler sense whereby it supplies a measure for practical reasoning that seems to inhere in the artifact. That internal measure may also be described as a nondefectiveness standard internal to the artifact and related concepts.134 Thus, when dealing with a property concept facilitating use, a decision maker must evaluate specific instances of the right in context and attentive to all relevant social, economic, cultural, and empirical context. The capacity to facilitate use operates as an Aristotelian virtue does; it identifies a mean between opposing and undesirable extremes.135 Property rights may seem defective as property rights because they seem too weak, conveying too little exclusive authority to facilitate beneficial use. Imagine that a developing community recognizes in relation to land mere usufructuary rights (i.e., easement-like rights to keep what one has appropriated from land), and that someone from a developed country criticizes those rights for not encouraging productive use of the land. That complainant would be arguing that usufructuary rights are not strong enough to perform the function he assumes to be characteristic of property rights. At the other extreme, property rights may seem defective because they seem too strong. Property rights may disregard the legitimate needs of non-proprietors, as they do in stock hypotheticals in which a settler in a new and arid territory appropriates the only well with fresh water.136 Or, property rights may seem excessively fragmented—as happened with like the “big-inch” deeds the Quaker Oats Company used to award to 1 square-inch lots in the Alaska Klondike.137 Again, when onlookers criticize particular property rights on these bases, they attribute to property an expectation that property rights facilitate everyone’s access to resources on sociable terms. As these examples should make clear, this nondefectiveness standard applies to rights of ownership with the same force with which it applies to all other property rights. That suggestion may come as a surprise to some readers. In conventional impressions, the concept of ownership seems more determinate than the concept for property. And of course, rights of exclusive control, possession, disposition, and residual benefit are more uniform as a group than the set of all possible in rem and immunized claim-rights in such resources. Nevertheless, all property rights—including rights of ownership—remain subject to what Finnis calls “a kind of inchoate trust, mortgage, lien, or usufruct in favour of all other persons.”138 So even if ownership property is determinate in its formal structure, the concept is considerably less determinate than it seems at first blush. The structure of ownership is contingent on ownership's performing the function expected of property rights.139 This part reinforces concerns broached earlier about determinacy. If property’s non-formal features generate borderline cases, and if all property rights are then contingent on satisfying a nondefectiveness standard, property concepts incorporating that standard may be too indeterminate. As I explained in section III.D, however, I suspect this concern is overdrawn. Here too the law of trusts, easements, and running covenants provide fair examples. When lawyers ask whether those rights seem effective or defective, they intuit readily enough the rights’ strengths and weaknesses. Furthermore, even when it is not entirely clear what the most effective property right would be for a given resource and recurring act-situation, property’s function still performs a valuable role. When everyone expects a well-ordered property right to facilitate use, that expectation channels decision-making—and conflict. The expectation sets a common normative standard to which different partisans can refer as they argue whether a particular property system is effective or defective. Since such a standard gives all interested parties stakes in a property system, it seems quite likely not to prescribe any single blueprint for property rights. For better or worse, the concepts under study here sacrifice determinacy for inclusiveness. To make property rights have legitimate authority, they make such rights context-dependent, negotiable—and indeterminate. That might be an undesirable choice. Yet all that sound conceptual analysis can do is to clarify that such a choice has been made. VIII. Conclusion Property seems complex, and it generates an extremely diverse range of rights and relations in law. Before we conclude that the practice of property is totally unstructured, however, we should strive to understand it as charitably as possible. And that is what this article has tried to do. And at least in one understanding, prominent in Anglo-American law and perhaps elsewhere, property does have a coherent structure. This structure may not be simple or clear enough to satisfy skeptics. But the structure is intelligible and coherent—if one is open to the idea that the structures of social concepts can track the structure of institutional artifacts. In the practice studied here, the field of property is organized in the first instance around three complementary concepts—one concept for property as a field of social and legal organization, another for relations strong enough to be called “ownership” rights, and (most importantly) one for proprietary relations strong enough to count as “rights.” And each of those concepts can be defined coherently—if one is open to defining each in relation to an artifact function. And with that, we can define each of the three concepts. In its focal sense, the field of property consists of all jural relations, vested with institutional status in relation to separable resources, to facilitate the purposeful, beneficial, and sociable use of those resources. In its focal sense, ownership property refers to a cluster of in rem and immunized claim-rights, conferring the greatest managerial authority possible in one or more separable resources, vested with institutional status and structured to facilitate the use of those resources. And in its focal sense, an unqualified property right refers to any in rem and immunized claim-right, vested with institutional status in relation to one or more separable resources, to facilitate use of those resources. Drafts of this Article were presented at Scalia Law School, the 2016 North American Workshop on Private Law Theory (held at Fordham University), and the 2017 Property Works in Progress Colloquium (held at Northeastern University). Research on this Article was supported by a research grant from the Scalia Law School. For research and editing assistance, I thank Owen Smitherman and Victoria Glover. For helpful suggestions and criticisms, I thank Avihay Dorfman, Chris Essert, Tom Gallanis, Brian Lee, Daphna Lewinsohn-Zamir, Adam Mossoff, James Penner, Dan Priel, Jeremy Rabkin, Ezra Rosser, Joe Singer, Henry Smith, Katrina Wyman, and editors and reviewers from the American Journal of Jurisprudence. For suggestions above and beyond the call of scholarly duty, I thank Hugh Breakey and Adam J. MacLeod. This Article was inspired by MacLeod's essay “Bridging the Gaps in Property Theory,” Modern Law Review 77 (2014): 1009, 1013-14 (book review). Footnotes 1 Hanoch Dagan, Property: Values and Institutions (Oxford: Oxford University Press, 2011), 42. 2 Amnon Lehavi, The Construction of Property: Norms, Institutions, Challenges (Cambridge: Cambridge University Press, 2013), 2. 3 Shane Nicholas Glackin, “Back to Bundles: Deflating Property Rights, Again,” Legal Theory 20 (2014): 2. 4 In contemporary scholarship, the most influential views hold that property consists of a bundle of rights, a collection of otherwise-unrelated jural relations applying to an ownable resource. The views I call “skeptical” in this Article include but are not limited to bundle views. Glackin subscribes to a bundle view, see ibid., and so does Stephen R. Munzer, “Property and Disagreement,” in Philosophical Foundations of Property Law, ed. James E. Penner & Henry E. Smith (Oxford: Oxford University Press, 2013), 289-319. By contrast, Lehavi, The Construction of Property, 2, and Dagan, Property, 40-43, both reject the bundle view in favor of what Dagan calls “pluralistic” views, Property, xi-xii. As this article will show, however, Dagan and Lehavi concepts of property are significantly more parsimonious than mine are. 5 Oliver Wendell Holmes, “The Path of the Law,” Harvard Law Review 110 (1997) [1897]: 1001. 6 See, for example, Risto Hilpinen, “Artifact,” Stanford Encyclopedia of Philosophy (Summer 2010 Edition, archived), Edward N. Zalta (ed.), accessed October 26, 2018, URL = <https://stanford.library.sydney.edu.au/archives/sum2010/entries/artifact/>. 7 See Lynne Rudder Baker, “The Shrinking Difference Between Artifacts and Natural Objects,” APA Newsletter on Philosophy and Computers 7 (2008): 3. 8 See, for example, John Searle, The Construction of Social Reality (New York: Free Press/Simon & Schuster, 1995), 4-5, 13-23; Pieter E. Vermaas & Wybo Houkes, “Ascribing Functions to Technical Artefacts: A Challenge to Etiological Accounts of Functions,” British Journal for the Philosophy of Science 54 (2003): 261-89. 9 See, for example, Mark C. Murphy, “Natural Law Jurisprudence,” Legal Theory 9 (2003): 259. 10 See, for example, Eric R. Claeys, “Intellectual Property and Practical Reason,” Jurisprudence 9 (2018): 252. These concepts have been studied by several authors, including Adam J. MacLeod, Property and Practical Reason (Cambridge: Cambridge University Press, 2015); Christopher M. Newman, “Vested Use-Privileges in Property and Copyright,” Harvard Journal of Law & Technology 30 (2017): 75-96; Eric R. Claeys, “Property 101: Is Property a Thing or a Bundle?” Seattle University Law Review 32 (2009): 617-50 (book review); Adam Mossoff, “What Is Property? Putting the Pieces Back Together,” Arizona Law Review 45 (2003): 371-443; John Finnis, “Natural Law: The Classical Tradition,” in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Jules Coleman, Kenneth Einar Himma, & Scott Shapiro (Oxford: Oxford University Press, 2002), 51-52. To date, however, none of these authors (myself included) have explained satisfactorily three crucial points: property concepts can be structured around artifact functions; when such concepts are structured around artifact functions the functions affect the methods by which the concepts must be analyzed; and a flourishing-based interest in use can supply a function and a nondefectiveness criterion for property rights. 11 See, for example, John Austin, The Province of Jurisprudence Determined: Being the First Part of a Series of Lectures on Jurisprudence, or, the Philosophy of Law, 2d ed. (London: John Murray, 1861), Lecture I, p. 2. 12 J.E. Penner, The Idea of Property in Law (Oxford: Oxford University Press, 1997), 2. Accord J.W. Harris, Property and Justice (Oxford: Oxford University Press, 1996), 3-5. 13 For example, Glackin suspects that leading conceptual analyses (by Penner, in The Idea of Property in Law, and Harris, in Property and Justice) “may amount … to trying to acquire redistributive justice on the conceptual cheap, avoiding the hard work of detailed moral and political argument.” Glackin, “Back to Bundles,” 2-3. 14 See John Finnis, Natural Law and Natural Rights, 2d ed. (Oxford: Oxford University Press, 2011) [1980], 17-18. Readers often assume that Finnis focuses entirely on normative issues to the exclusion of descriptive issues. To the contrary, Finnis expressly recognizes that “the disciplined acquisition of accurate knowledge about human affairs … is an important help to reflective and critical theorists.” Ibid. See also Murphy, “Natural Law Jurisprudence,” 255n52 and 257n57. 15 Joseph Raz, Practical Reason and Norms, 2d ed. (Oxford: Oxford University Press, 1999) [1975], 10. Raz’s conceptual methods are sometimes criticized on the ground that they do not differentiate sufficiently between the descriptive or explanatory and the normative. Yet Raz clearly understands his method to be descriptive-explanatory. See also W.J. Waluchow, Inclusive Legal Positivism (Oxford: Oxford University Press, 1994), 126; Joseph Raz, “Authority, Law, and Morality,” The Monist 68 (1985): 295, 320-21. 16 For example, Robert C. Ellickson dismissed three major works on the philosophy or history of property as “armchair philosophies” about property. “Property in Land,” Yale Law Journal 102 (1993): 1387 (criticizing Munzer, A Theory of Property; Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (Chicago: University of Chicago Press, 1990); Jeremy Waldron, The Right to Private Property (Oxford: Oxford University Press, 1988)). Ellickson was saying that all three of the works made unpersuasive critiques of property rights because they all assumed and criticized straw-man concepts of property. 17 Jeremy Waldron suggested that systems of property rights might be explainable in relation to functions. See Waldron, The Right to Private Property, 33-35. But Waldron did not develop this suggestion as comprehensively as this article will. 18 Munzer, “Property and Disagreement,” 299-300 (internal quotations omitted). See also Lehavi, The Construction of Property, 46-49; Glackin, “Back to Bundles,” 5. 19 Glackin, “Back to Bundles,” 6. Accord Jesse Dukeminier et al., Property, 8th ed. (New York: Wolters Kluwer Law & Business, 2014), 109-10; Stephen R. Munzer, A Theory of Property (Cambridge, UK: Cambridge University Press, 1990), 15-36; Restatement (First) of Property (Philadelphia: American Law Institute, 1937), §§ 1-13. 20 See Dagan, Property, 37; Glackin, “Back to Bundles,” 4; Munzer, “Property and Disagreement,” 307. 21 See William B. Stoebuck & Dale A. Whitman, The Law of Property, 3rd ed. (St. Paul, MN: West Group, 2000), § 2.2, pp. 328-29; A.M. Honoré, “Ownership,” Oxford Essays in Jurisprudence, ed. A.G. Guest (Oxford: Oxford University Press, 1961), 107. 22 See Glackin, “Back to Bundles,” 4. 23 See Lehavi, The Construction of Property, 49. 24 See Stoebuck & Whitman, The Law of Property, § 8.1, pp. 435-37. 25 Helene S. Shapo et al., The Law of Trusts and Trustees, 3d ed. (St. Paul, MN: West 2012), §§ 1, 141, 144, 181. When I refer to “trusts” in the rest of this Article, I mean wealth-management trusts. 26 See, for example, Restatement (Third) of Property: Servitudes (Philadelphia: American Law Institute 2017) § 1.3(3); Stoebuck & Whitman, The Law of Property, § 8.13, pp. 469-71. 27 See Jon W. Bruce & James W. Ely, Jr., The Law of Easements & Licenses in Land (Boston : Warren, Gorham & Lamont 2017), § 1.1; Stoebuck & Whitman, The Law of Property § 8.1, p. 438. 28 See, for example, Berto v. State Dept. of Social & Health Svcs., 379 P.3d 146, 148 (Wash. Ct. App. 2016); Shapo et al., The Law of Trusts and Trustees, § 183. 29 See Stoebuck & Whitman, The Law of Property, § 8.14, p. 474; William B. Stoebuck, “Running Covenants: An Analytical Overview,” Washington Law Review 52 (1977): 889, 891. 30 Dagan, in Property, 40 & 256nn20, 22, and Lehavi, in The Construction of Property, 48, included previous works by me and Adam Mossoff in their critiques of conceptual analyses of property, but they focused their criticisms on primarily on works by Thomas Merrill and Henry Smith. (See infra note 31.) Munzer, in “Property and Disagreement,” and Glackin, in “Back to Bundles,” focused their criticisms on analyses by Penner and Harris. 31 See, for example, Penner, The Idea of Property in Law, 2, 68-75; Harris, Property and Justice, 3-5, 24-26, 63-84; Christopher Essert, “The Office of Ownership,” University of Toronto Law Journal 63 (2013): 418-61; Thomas W. Merrill, “The Property Strategy,” University of Pennsylvania Law Review 160 (2012): 2061-95; Henry E. Smith, “Property As the Law of Things,” Harvard Law Review 125 (2012): 1691-1726; Larissa Katz, “Exclusion and Exclusivity in Property Law,” University of Toronto Law Journal 58 (2009): 275-315. 32 In previous works, I have assumed that one concept encompasses the instances in which ownership-based property rights and easements and other non-ownership rights both encompass property. See Eric R. Claeys, “Exclusion and Private Law Theory: A Comment on Property As the Law of Things,” Harvard Law Review Forum 125 (2012): 133-50; Eric R. Claeys, “Exclusion and Exclusivity in Gridlock,” Arizona Law Review 53 (2011): 9-49 (book review); Eric R. Claeys, “Property 101.” I have been convinced I was wrong by MacLeod, Property and Practical Reason; Hugh Breakey, “Two Concepts of Property: Ownership of Things and Property in Activities,” The Philosophical Forum 42 (2011): 239-65; and Lehavi, The Construction of Property. MacLeod suggests, in Property and Practical Reason, 44-49, that differences in perspectives on property can be accounted for by different focal points of view. I believe that MacLeod’s insight is necessary but not sufficient to account for the complexity we see in property’s practice. Lehavi suggests that different property concepts are structured to promote different social goals; the concepts discussed in this Article impart more structure to property in practice than Lehavi’s account does. Breakey treats the concepts of ownership and unqualified property are largely separate; I believe that the extension of ownership property is subsumed within the extension of what I call here unqualified property. 33 See Breakey, “Two Concepts of Property.” 34 See, for example, Baseball Pub. Co. v. Bruton, 18 N.E.2d 362 (Mass. 1938) (ordering equitable relief to protect a valid easement against ongoing interference); Dan B. Dobbs, The Law of Remedies: Damages—Equity—Restitution, 2d ed. (St Paul, MN: West Group, 1993), §§ 2.9(2)-(3), pp. 165-68 (injunctions against interferences with property). 35 See, for example, United States v. General Motors Corp., 323 U.S. 373 (1945) (holding that a leasehold and premise fixtures constitute property protected against uncompensated condemnation). 36 See, for example, United States v. Craft, 535 U.S. 274 (2002) (holding that a cotenant’s interest in a tenancy by the entirety constitutes property under a tax-judgment attachment statute). 37 Harris recognizes a similar distinction when he distinguishes between “mere property” and “full-blooded ownership.” Harris, Property and Justice, 5, 64. 38 Licenses can be granted by the owners of other resources, such as chattels or intellectual objects subject to intellectual property. I focus on licenses in land for ease of exposition. 39 Stoebuck & Whitman, The Law of Property, § 8.1, p. 438. See ibid., § 8.1, p. 435-39. See also Wehby v. Turpin, 710 So.2d 1243, 1251 (Ala. 1998) (distinguishing licenses from easements); Bruce & Ely, The Law of Easements and Licenses in Land, § 11.1. 40 Jeremy Waldron, The Right to Private Property, 31. 41 See Searle, The Construction of Social Reality, 3. 42 Jeffrie G. Murphy & Jules L. Coleman, Philosophy of Law: An Introduction to Jurisprudence, rev. ed. (Boulder, CO: Westview Press, 1990), 2-3. 43 See Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford: Oxford University Press, 2009), 18-21. For alternate understandings of concepts, see Eric Margolis & Stephen Laurence, “Concepts,” in Edward N. Zalta ed., Stanford Encyclopedia of Philosophy (2011) § 1, accessed July 25, 2017, https://plato.stanford.edu/archives/spr2014/entries/concepts/. 44 See Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions As Applied in Judicial Reasoning,” Yale Law Journal 23 (1913): 30-32. 45 See Charlie Webb, “Three Concepts of Rights, Two of Property,” Oxford Journal of Legal Studies 38 (2018): 266; Claeys, “Property 101,” 623; J.E. Penner, “The ‘Bundle of Rights’ Picture of Property,” UCLA Law Review 43 (1996): 741. 46 See Joseph Raz, Between Authority and Interpretation, 20-24. 47 See Mark C. Murphy, “Two Unhappy Dilemmas for Natural Law Jurisprudence,” American Journal of Jurisprudence 60 (2015): 123-24; see also Raz, Between Authority and Interpretation, 21-23. 48 See Thomas Hurka, “Introduction,” in Bernard Suits, The Grasshopper: Games, Life, and Utopia, 3rd ed. (Petersborough, Ontario: Broadview Press, 2014) [1978], ix, xv. 49 Murphy & Coleman, Philosophy of Law, 3. 50 See, for example, Mark Murphy, Natural Law in Jurisprudence and Politics (Cambridge: Cambridge University Press, 2006), 29; Thomasson, “Realism and Human Kinds, 592-604. Different artifacts can and often do have more than one function. Throughout this Article, more often than not I’ll refer to “function” in the singular, but only for ease of exposition. 51 Marmor, “Farewell to Conceptual Analysis,” 211. See also Jonathan Crowe, “Law As an Artifact Kind,” Monash Law Review 40 (2014): 738-40. 52 See, for example, Murphy, “Two Unhappy Dilemmas,” 125; Lynne Rudder Baker, “The Shrinking Difference,” 3; Amie L. Thomasson, “Realism and Human Kinds,” Philosophy & Phenomenological Research 67 (2003): 592-604. 53 See Crowe, “Law As an Artifact Kind,” 742; Beth Preston, “When Is a Wing Like a Spoon? A Pluralist Theory of Function,” Journal of Philosophy 95 (1998): 241. 54 See, for example, Massimilian Carrara & Pieter E. Vermaas, “The Fine-Grained Metaphysics of Artifactual and Biological Functional Kinds,” Synthese 169 (2009): 133-36; Amie L. Thomasson, “Artifacts and Human Concepts,” in Creations of the Mind: Theories of Artifacts and Their Representation, ed. Eric Margolis & Stephen Laurence (Oxford: Oxford University Press, 2007), 56-58; Baker, “The Shrinking Difference,” 3; Hilpinen, “Artifacts,” § 2. 55 Crowe, “Law As an Artifact Kind,” 741. 56 See, for example, Mark C. Murphy, “Defect and Deviance in Natural Law Jurisprudence,” in Institutionalized Reason: The Jurisprudence of Robert Alexy, ed. Matthias Klatt (Oxford: Oxford University Press, 2012), 58-59. 57 In scholarship on the metaphysics of artifacts, scholars sometimes use the term “function+” to refer to accounts in which an artifact consists of a function and several other features performing the function. See, for example, Crowe, “Law As an Artifact Kind,” 742; Carrara & Vermaas, “Fine-Grained Metaphysics,” 131-32. 58 See Paul Bloom, “Intention, History, and Artifact Concepts,” Cognition 60 (1996): 1-2. 59 Searle, The Construction of Social Reality, 39-43; see Luka Burazin, “Can There Be an Artifact Theory of Law?” Ratio Juris 29 (2016): 392-96; Crowe, “Law as an Artifact Kind,” 744-46. 60 Thomasson, “Artifacts and Human Concepts,” 62-63. 61 See Thomasson, “Realism and Human Kinds,” 601. 62 See George Santayana, The Life of Reason: Or The Phases of Human Progress, rev. ed. (New York: Charles Scribner’s Sons, 1953), 401-402. 63 Glackin, “Back to Bundles,” 4. 64 See Ludwig Wittgenstein, Philosophical Investigations, trans. G.E.M. Anscombe, 3d. ed. (Malden, MA: Blackwell Publishing, 2001) [1953], 36º, ¶ 66. See, for example, Munzer, “Property and Disagreement,” 307-08. 65 For a survey of the challenges and some efforts to address them, see The Stanford Encyclopedia of Philosophy, s.v. “Rights” by Leif Wenar, Edward N. Zalta ed. (fall 2015), accessed January 16, 2018, https://plato.stanford.edu/archives/fall2015/entries/rights/. 66 Aristotle, Nicomachean Ethics, Roger Crisp trans. (Cambridge: Cambridge University Press, 2000), I.3, pp. 4-5. 67 See, for example, Suits, The Grasshopper, 54-55; Searle, The Construction of Social Reality, 103; David Egan, “Playing Well: Wittgenstein’s Language-Games and the Ethics of Discourse,” in The Philosophy of Play, ed. Emily Ryall, Wendy Russell, and Malcolm MacLean (New York: Routledge, 2013), 54-58; John Finnis, “Grounds of Law and Legal Theory: A Response,” Legal Theory 13 (2007): 317-19. 68 See Joel Feinberg, “The Nature and Value of Rights,” Journal of Value Inquiry 4 (1970): 257. See also Finnis, Natural Law and Natural Rights, 198-230; Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 165-92; Webb, “Three Concepts of Rights,” 252–55. 69 Penner, The Idea of Property in Law, 111-12. 70 John Austin, Lectures on Jurisprudence: Or, the Philosophy of Positive Law, 4th ed., Robert Campbell (London: John Murray, 1873), 1: 380. 71 Albert Kocourek, “Rights in Rem,” University of Pennsylvania Law Review 68 (1920): 322. Kocourek attributes this definition (via Austin, Lectures on Jurisprudence, 1: 381) to Hugo Grotius. Although there is a question whether Grotius ever used this formulation, it seems a fair restatement of civilian usages of in rem as a term of art. See E.C. Clark, History of Roman Private Law, Part II: Jurisprudence (Cambridge: University Press, 1914), § 23, at 714 & n63. 72 Peter Birks, An Introduction to the Law of Restitution (Oxford: Clarendon Press, 1985), 49. 73 Penner, The Idea of Property in Law, 28-29; see id. at 27-28. But see Webb, “Three Concepts of Rights,” 257–65. 74 Proprietors owe duties not to use or manage their property in ways that harm others, and those duties correlate with claim-rights held by the beneficiaries of those duties. See Honoré, “Ownership,” 123. Those correlative duties and claim-rights operate in rem as well. 75 See The Free Dictionary, s.v. “Use,” accessed August 9, 2018, http://legal-dictionary.thefreedictionary.com/use. 76 See Online Etymology Dictionary, s.v. “Easement,” accessed August 9, 2018, http://www.etymonline.com/index.php?term=easement. 77 See Penner, The Idea of Property in Law, 74-78. The function discussed in text requires subtler reasoning than I am suggesting in text, because licenses and easements also implicate the interests of third parties. Those interests and complications will be discussed later. 78 Stoebuck & Whitman, The Law of Property, § 8.1, p. 438. 79 See Christopher M. Newman, “An Exclusive License Is Not an Assignment: Disentangling Divisibility and Transferability of Ownership in Copyright,” Louisiana Law Review 74 (2013): 77-78. I focus in text on the easement because everything that applies to the easement applies a fortiori to the fee simple. 80 Penner, The Idea of Property in Law, 26. 81 Indeed, the responsibilities associated with an easement may not be transferred separately from ownership of the servient estate. See Bruce & Ely, The Law of Easements and Licenses in Land, § 9.2. 82 See, for example, Cedar Beach/Cedar Island Supporters, Inc. v. Gables Real Estate, 145 A.3d 1024, 1029-30 (Me. 2016); Bruce & Ely, The Law of Easements and Licenses in Land, § 8.33. 83 See Shapo et al., The Law of Trusts and Trustees, § 2. 84Berto v. State Dept. of Social & Health Svcs., 379 P.3d 146, 148 (Wash. Ct. App. 2016). See also Shapo et al., The Law of Trusts and Trustees, § 183, pp. 512-14. 85 J.E. Penner, “The (True) Nature of a Beneficiary’s Equitable Proprietary Interest under a Trust,” Canadian Journal of Law and Jurisprudence 27 (2012): 486. 86 See Rest. (3d) Trusts §§ 78, 79, 82, 83 (2003). 87 See George Gleason Bogert et al., Bogert’s the Law of Trusts and Trustees (St. Paul, MN: West, 2018), ch. 27, § 553. 88 See R.C. Nolan, “Equitable Property,” Law Quarterly Review 122 (2006): 232-65. 89 Honoré, “Ownership,” 108. 90 Ibid, 112-24. See also Harris, Property and Justice, 29-32, 93-99. 91 See Leslie Green, introduction to The Concept of Law by H.L.A. Hart, 3d ed. (Oxford: Oxford University Press, 2012), 16. 92 See The Free Dictionary, s.v. “Discovery,” accessed April 23, 2018, https://www.thefreedictionary.com/discovery; The Free Dictionary, s.v. “Discovering,” accessed April 23, 2018 https://www.thefreedictionary.com/discovering. 93 “Use.” 94 St. Thomas Aquinas, Summa Theologiae II-II q. 66, art. I c & art. 2 c (justifying property rights in external resources because man has a capacity “to use them for his own profit”). See also John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 188-96. 95 Hugo Grotius, De Jure Belli Ac Pacis Libri Tres, trans. Francis W. Kelsey (Oxford: Clarendon Press, 1925) [1646], bk. II, ch. 2, § iii, para. I, v. 2, p. 190 (arguing that common ownership “suffices for any possible use on the part of all peoples,” and accepting that rights in air might be severed from rights in land if the air could be shown to be “capable of any use for which the use of the land also is not required”); see id. at 1:114 (using the term “usus” for “use”). See also Stephen A. Buckle, Natural Law and the Theory of Property 52 (Oxford: Oxford University Press, 1991) (concluding that Grotius construes property “as a power to use things without injustice”). 96 Samuel Pufendorf, De Jure Naturae Gentium Libri Octo, trans. C.H. Oldfather & W.A. Oldfather (Oxford: Clarendon Press, 1934) [1684], bk. V, ch. iv, § 7, p. 541 (“It is clearly better that property should be held in private, but the use of it in common.” [quoting Aristotle, Politics, bk. II, ch. ii]). 97 John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge, UK: Cambridge University Press, 1988) [1698], bk. II, ch. 5, §§ 31, 34, pp. 290, 291 (bounding labor to the “use of the Industrious and Rational,” and “to enjoy” in the sense of “mak[ing] use of to any advantage of life before [the relevant resource] spoils”). See A. John Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), 272-74; Buckle, Natural Law and the Theory of Property, 149-54. Contra Finnis, Aquinas, 189. 98 2 Bl. Comm. *3 (in simple economies “occupancy gave the right to the temporary use of the soil”); 2 ibid., at *8 (occupancy conveys a “right to the permanent property in the substance of the earth itself; which excludes everyone else but the owner from the use of it”); 3 ibid., at *209 (“the right of meum and tuum, or property, in lands being once established, … the owner may retain to himself the sole use and occupation of his soil.”). 99 See “Use.” 100 See, for example, Tyler v. Wilkinson, 24 F. Cas. 472, 474 (C.C.R.I. 1827); Tenant v. Goldwin, 92 Eng. Rep. 222, 224 (K.B. 1702); Joshua Getzler, A History of Water Rights at Common Law (Oxford: Oxford University Press, 2004), 122-27, 260-67; Horace Gay Wood, A Practical Treatise on the Law of Nuisance in Their Various Forms: Including Remedies Therefor in Law and Equity (Albany, N.Y.: J.D. Parsons, Jr., 1875), 21. 101 The account in text follows Raz, Practical Reasons and Norms, 49-63. Raz offered this account primarily to explain how and why people participate in legal systems. Yet Raz derived the apparatus from broader observations about institutionalized systems generally (including games). See ibid. at 109-22. And he specifically acknowledged, ibid. at 123, that other institutionalized systems, including systems of property rights, possess the same features. 102 See Philip Soper, “In Defense of Classical Natural Law Theory: Why Unjust Law Is No Law at All,” Canadian Journal of Law and Jurisprudence 20 (2007): 209-11. Raz’s normative philosophical writings on authority have been questioned. See, e.g., Daniel Mark, “The Failure of Joseph Raz’s Account of Legal Obligation,” American Journal of Jurisprudence 61 (2016): 217-36. In text, I follow and rely on Raz’s analytical writings. Even if readers find Raz’s normative account of authority unsatisfying, I assume that there exists some satisfying justification for a political community’s use of social shaming mechanisms and government-sponsored force. My point in text is simply that property rights and concepts raise questions that need to be addressed by some satisfactory account of authority. 103 See, for example, Penner, The Idea of Property in Law, 9-11. 104 See Joel Feinberg, The Moral Limits of the Criminal Law, vol. 1, Harm to Others (New York: Oxford University Press, 1984), 33-34. 105 See Raz, Practical Reason and Norms, 34. 106 Ibid., 32. 107 Ibid., 34. 108 This interest in use may not succeed at channeling conflict about resource allocation and use in satisfying ways; whether it succeeds is a normative question. Analytically, however, because the interest is central to the concepts under study, it provides a common standard to which people in a community may appeal to resolve such conflict. 109 And again, proprietary jural relations too weak to count as (unqualified) property rights. 110 Finnis, “Natural Law: The Classical Tradition,” 51. 111 Use-facilitation also justifies and structures the features possessed by proprietary relations too weak to count as property rights; I focus on property rights in text only for ease of exposition. 112 I am focusing in text on the jural features of a property right in the simple and unqualified sense of property for ease of exposition. The concepts for ownership property and property as a field of social morality can be explained similarly—the jural relations necessary for each get instituted because they also seem likely to facilitate use. 113 See Searle, The Construction of Social Reality, 43. 114 Proprietary obligations seem more general and harder to cancel than contractual obligations usually are. Consider the rule of thumb whereby it seems easier to obtain an injunction to prevent ongoing interference with a property right than it seems to obtain specific performance of a contract. Compare, for example, Dobbs, The Law of Remedies: Damages—Equity—Restitution, §§ 2.9(2)-(3), pp. 165-68 (injunctions against interferences with property) with ibid. §§ 12.8(2)-(3), pp. 808-10 (specific performance for breaches of contract). 115 See, e.g., Lehavi, The Construction of Property, 49; accord Thomas W. Merrill, “Property and the Right to Exclude II,” Brigham-Kanner Property Rights Journal 3 (2014): 4-5 (making a similar argument with public law regulations restricting land use). 116 Murphy, “Defect and Deviance in Natural Law Jurisprudence,” 46. Michael S. Moore draws a similar distinction; he argues that a function can be necessary to a kind of objects in a metaphysical sense without being necessary in an analytical sense. See “Law As a Functional Kind,” in Natural Law Theory: Contemporary Essays, ed. Robert P. George (Oxford: Oxford University Press, 1992), 198-200. 117 Stoebuck & Whitman, The Law of Property, § 8.13, pp. 470-71. 118 See ibid. §§ 8.15 to -.16, pp. 475-82. 119 See, for example, Nahrstedt v. Lakeside Village Condominium Association, 878 P.2d 1275, 1283-84 (Cal. 1994); Raney v. Tompkins, 78 A.2d 183, 184-85 (Md. 1951); Tulk v. Moxhay, 41 Eng. Rep. 1143 (Ch. 1848). 120 See Stoebuck & Whitman, The Law of Property, §§ 8.13, pp. 469-73. 121 Running covenant doctrine also teaches a few other valuable lessons about concerns noted briefly in this article—about the indeterminacy of concepts, and the difficulty of reconciling interests in resource use that seem incommensurable. As already suggested (respectively, in sections IV.C and VII.A), I think these concerns are overwrought. Running covenant doctrine illustrates why. No doubt, reasonable people can and do disagree about how severe the effects of running covenants need to be before such covenants should be voided. But reasonable people can and should agree that running covenants are beneficial in many contexts. Covenant law accentuates the positive and defers the negative; the most controversial concerns covenants raise are tested in law in defenses that may never get tested in practice. 122 In a forthcoming article, I show that the same concepts explain nonpossessory rights in the use of river flow, ditch easements, mortgages, and the rights that tenants in common and joint tenants hold in relation to other cotenants. See Eric R. Claeys, “Property, Concepts, and Functions,” Boston College Law Review 63 (no. 1, forthcoming 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3136041. 123 See Finnis, Natural Law and Natural Rights, 9-11, 277; Grégoire Webber, “Asking Why in the Study of Human Affairs,” American Journal of Jurisprudence 60 (2015): 73-75. Focal meaning is also referred to as core-dependency. See Julie K. Ward, Aristotle on Homonymy: Dialectic and Science (Cambridge: Cambridge University Press, 2008), 79-97; Shields, Order in Multiplicity, 57-62. For insights about the role that focal methods play in property, see MacLeod, Property and Practical Reason, 39-49. 124 As with functions so too with focal meanings: I assume in text that a concept has only one focal meaning, but I make this assumption only for ease of exposition. 125 Marmor, “Farewell to Conceptual Analysis,” 224 (emphasis added). 126 See Crowe, “Law As an Artifact Kind,” 742; Finnis, “Grounds of Law and Legal Theory,” 319-20. Raz construes family resemblance methods more narrowly, to apply only when a concept lacks a core meaning or some principle structuring the various instances in its extension. Between Authority and Interpretation, 29. In text, I follow Crowe and also Jeremy Waldron, who believe that a method constitutes a family resemblance method when it is open to the possibility that a concept exhibits “some constancy” but also “a certain amount of variation here and there.” Waldron, The Right to Private Property, 49-50. 127 See, for example, Moore v. Regents of California, 793 P.2d 479 (Cal. 1990). 128 See Midler v. Ford Motor Co., 849 F.2d 460, 463 (9th Cir. 1988). 129 See Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (Cambridge: Harvard University Press, 1988). 130 See The World Bank, World Development Report 2002: Building Institutions for Markets (New York: Oxford University Press, 2002), 32-39; Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2000), 36 & Table 2.1, 69-103. 131 Similar things could be said about borderline examples of rights of ownership and proprietary relations too weak to be called property rights; I focus on the borders of unqualified property rights only for ease of exposition. 132Richardson v. Franc, 182 Cal. Rptr. 3d 853, 858, 864 (Ct. App. 2015). 133 See, for example, Blackburn v. Lefebvre, 976 So.2d 482, 493-94 (Ala. App 1997) (surveying conflicting cases); Bruce & Ely, The Law of Easements and Licenses in Land, § 11.9. 134 See supra note 116 & accompanying text; Murphy, “Defect and Deviance in Natural Law Jurisprudence,” 46. 135 See Aristotle, Nicomachean Ethics bk. II, chs. 6-8. 136 See, for example, Eric T. Freyfogle, The Land We Share: Private Property and the Common Good (Washington: Island Press/Shearwater, 2003), 101-03; Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 180. 137 Heller, The Gridlock Economy (New York: Basic Books, 2010), 6-9 & Fig. 1.2. Heller draws inappropriate inferences about the conceptual structure of property from that and other similar examples. See Claeys, “Exclusion and Exclusivity in Gridlock.” 138 Finnis, “Natural Law: The Classical Tradition,” 51. See also MacLeod, Property and Practical Reason, 91-145; Eric R. Claeys, “Labor, Exclusion, and Flourishing in Property Law,” North Carolina Law Review 95 (2017): 449, 453-60 (showing how a normative justification for property operationalizing the concept discussed here recognizes limits associated with adverse possession, customary rights of way, and constraints imposed by public assistance or progressive taxation policies). 139 Many of the scholars who conceive of property primarily as ownership recognize that the ownership model needs to be limited. See, for example, Penner, The Idea of Property in Law, 72; Harris, Property and Justice, 33-34, 160; Merrill, “The Property Strategy,” 2068-69; Smith, “Property As the Law of Things,” 1704, 1710. Yet the qualifications these authors make are often disregarded by these scholars' critics. In addition, these scholars do not pay as much attention as they should to the manner in which the functions performed by property rights limit the scope of ownership. © The Author(s) 2018. 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TI - Use And the Function of Property
JF - American Journal of Jurisprudence
DO - 10.1093/ajj/auy013
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