This paper argues that many types of philosophical argument distract us, rather than provide clarity, in relation to the role that possession plays in the law of property. The philosophical strategies I have in mind include the natural law tradition’s fascination with state-of-nature stories as well as Dworkinian claims that law is a matter of interpretation that must make reference to a general theory of justice. By either imagining away the concrete details of our legal system and institutions (through invoking a state of nature) or by passing too quickly to weightier ideas of justice and fairness (through Herculean judgment), these strategies distract us from seeing the centrality of law to a proper understanding of possession.
To show this, I use the well-known distinction between justifying a particular action within a practice and justifying a practice as a whole. Puzzles about whether some particular action counts as “possession” and why this might be so are questions of the former kind and puzzles about why we might want to recognize and protect possession at all are questions of the latter kind. The key point is that different kinds of answers are suitable to the different questions. In other words, it is not clear at all that answering the question of how one should understand the elements of the practice of possession has anything to do with answering the question of why we think the practice of possession as a whole is justified.
Answering questions about the elements of a practice should therefore make reference to the practice itself. The law of possession has multiple aspects but three stand out: it can refer to the relationship between a person and a thing (factual possession), it can refer to rights (the right of possession), it can refer to the question of to whom these rights can be attributed (possessory title). My claim is that to properly understand how these three aspects work and are related, we also need to bring to the fore the specifically legal aspects of this practice that help to constitute it and serve as its central organizing ideas. In this regard I look to two different legal ideas. The first is Lon Fuller’s understanding of the principles of legality, which I argue can help us understand the role that factual possession plays in determining title conditions. The second is Kant’s understanding of omnilaterality as a legal relation (which I will sever from his broader project of political justification), which I argue can help us understand the logical structure of the right of possession. Taken together these legal ideas illuminate that possession is at its core a legal practice and that references to pre-legal thought experiments (like the state of nature) or extra-legal values (such as political morality) are unhelpful in understanding its particular doctrinal features.
Austin, Lisa M., Possession and the Distractions of Philosophy (May 18, 2012). J. E. Penner and H. E. Smith (eds.), The Philosophical Foundations of Property Law (Oxford: Oxford University Press), Forthcoming.