1 Jones v Powell (1629) Palm 536, 81 ER 1209. See Baker, J H and Milsom, S F C Sources of English Legal History (London: Butterworths, 1986) p 601 Google Scholar.

2 Baker and Milsom op cit at 602.

3 Palm 537, 81 ER 1209.

4 Palm 538, 81 ER 1209.

5 Ibid.

6 Palm 536, 81 ER 1209; Baker and Milsom above n 1 at 605.

7 Palm 538, 81 ER 1209 per Dodderidge J; Baker and Milsom above n 1 at 605.

8 Jeffrey's Case (c 1560) cited by Coke in Aldred's Case (1610) 9 Co 576. 77 ER 816. See Baker and Milsom above n 1 at 592 and 599.

9 St Helens v Tipping (1865) 11 HL Cas 642, 11 ER 1483.

10 (1859) K & J 528, 70 ER 220.

11 In the words of counsel: ‘Birmingham will be converted into one vast cesspool’; K & J 536, ER 224. For a precedent giving some support to this argument, see A-G v Sheffield Gas Consumers Co (1853) 3 De G M & G 304, 43 ER 119. See, for the interlocutory proceedings: at 312, 122 per Knight Bruce LJ; and 315, 123 per Lord Cranworth; and, for the trial judgment: 332, 130 per Knight Bruce LJ; and 339–340, 132–3 per Lord Cranworth.

12 K & J 538-9, 70 ER 224–5.

13 [1895] 1 Ch 287. See, generally, Craig Rotherham ‘The Allocation of Remedies in Private Nuisance: An Evaluation of the Judicial Approach to Awarding Damages in Lieu of an Injunction’ (1989) 4 Canta LR 84.

14 For an account of the development of the law in this area, see, generally, John P McLaren ‘Nuisance Law and the Industrial Revolution - Some Lessons from Social History’ (1983) 3 OJLS 155.

15 Ibid at 316. On Lindley LJ and his attitude towards property, see Rotherham, Craig ‘Proprietary Relief for Enrichment by Wrongs: Some Realism about Property Talk’ (1996) 19 UNSWLJ 378 at 386–387 Google Scholar.

16 § 826 Restatement of Torts (1939).

17 299 A 2d 155 (NH, 1972); see Bone, Robert C ‘Normative Theory and Legal Doctrine in American Nuisance Law: 1850-1920’ (1986) 59 Southern Cal LR at 1223 Google Scholar.

18 Ibid at 159. In 1979, the Institute produced the Restatement of Torts (2d) § 829 of which featured a formula that made the finding of a nuisance automatic upon proof of severe harm. Below that level of injury, liability continues to be determined by a utilitarian balancing test; Bone op cit at 1226. On the other hand, some courts favour internalising externalities. On this view, the ‘law attempts to ensure that businesses are, on balance, socially beneficial by requiring that each enterprise bear its total production costs’; see Orchard View Farms Inc v Martin Marietta Aluminium Inc 500 F Supp 984 (Oregon, 1980)Google Scholar.

19 257 NE 2d 870 (NY, 1970).

20 See also Monroe Carp Pond Co v River Raisin Paper Co 215 NW 325 (Mich, 1927); Smith v Staso Mining Co 18 F (2d) 736 (1927).

21 Much of the focus will be on ‘hard cases’ . However, the inquiry will also illuminate the assumptions upon which we operate that make easy cases unproblematic.

22 For the distinction between the concept of property and particular conceptions of property, see Waldron, Jeremy The Right to Private Property (Oxford: Clarendon Press, 1988)p 31 Google Scholar.

23 Waldron op cit at 51.

24 This follows from Wittgenstein's observation that the meaning of a term, rather than being fixed, is determined by its use: Wittgenstein, Ludwig Philosophical Investigations (Oxford: Basil Blackwell, 2nd edn, 1963) 27 Google Scholar. Waldron notes that argument on property often involves the use of ‘persuasive definitions’, whereby those involved are able to advance analytically only by virtue of the fact that they have assigned a particular meaning to a word; Waldron op cit at 51, citing Charles L Stevenson ‘Persuasive Definitions’ (1938) 47 Mind 331.

25 W B Gallie ‘Essentially Contested Concepts’ (1955-6) 56 Proceedings of the Aristotelian Society 167; Waldron op cit at 51.

26 See Hume, David A Treatise of Human Nature Selby-Bigge, L A and Nidditch, P H eds (Oxford: Clarendon Press, 2nd edn, 1978) p 491 Google Scholar; Coval, S, Smith, J C and Coval, Simon ‘The Foundations of Property and Property Law’ (1986) CLJ 457 at 470Google Scholar.

27 See Gray, Kevin ‘Equitable Property’ (1994) 47(2) Current Legal Problems 157 at 159CrossRefGoogle Scholar.

28 While, no doubt, different conceptions find favour in varying degrees at different times in particular jurisdictions, it is likely that traces of them can all be found at any one time within any legal culture. While the nineteenth century is generally recognised to be the high watermark of the influence of the classic liberal vision of a common law built on absolute property rights and freedom of contract, departures from this vision were not rare; see, for example, Atiyah, Patrick S The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979) pp 380–383 Google Scholar. Similarly, while a realist understanding of the common law as inherently political has transformed legal discourse in the United States, the premises of classic liberal thought often resurface: see Nedelsky, Jennifer, Private Property and the Limits of Constitutionalism: The Madisonian Framework and its Legacy (Chicago: University of Chicago Press, 1990) p 224 Google Scholar. The task of this article is not the essentially empirical one of identifying which conceptions prevail in a particular legal culture; rather it is concerned with identifying what we are arguing about when we disagree about property and whether the grounds for disagreement are plausible.

29 Such underlying understandings can be understood as a part of a particular world view that is in turn embedded in what Foucault termed an ‘épistemé’ - the epistemological premises that support that view: see Foucault, Michel The Order of Things, An Archaeology of the Human Sciences (London: Tavistock, 1970) p xxii Google Scholar.

30 The distinction can be described in terms of reasoning from the ‘top down’ (deductively) or from the ‘bottom up’ (inductively); Posner, Richard Overcoming the Law (Cambridge, Mass: Harvard University Press, 1992) p 171 Google Scholar. For a discussion of the level of abstraction in the context of property discourse see Radin, Margaret Reinterpreting Property (Chicago: University of Chicago Press, 1993) p 98 Google Scholar.

31 Seipp, David J ‘The Concept of Property in the Early Common Law’ (1994) 12 Law and History Rev 29 at 31–33 Google Scholar. See also the discussion of nuisance law at nn 1–8 above and accompanying text.

32 Waldron above n 22 at 52. Munzer, Stephen makes a similar claim in his discussion of the task of determining what may be owned. He regards this as a descriptive task involving the compilation of a list: Munzer Private Property (Cambridge: Cambridge University Press, 1990) p 23 Google Scholar. Cotterrell, Roger, too, sees abstract conceptions of property playing little role in the determination of property rights: Cotterrell ‘The Law of Property and Legal Theory’ in Twining, William (ed) Law and Legal Theory (Oxford: Blackwell, 1986) p 88 Google Scholar.

33 Waldron op cit at 53.

34 For judicial support of this view, see Milangos v George Frank (Textiles) Ltd (1975) 3 All ER 801 at 824 per Lord Simon; Ex parte King (1984) 3 All ER 897 at 903 per Griffiths LJ; but cf Candler Crane w Christmas Co [1952] 2 KB 164 at 178 per Denning LJ. For support for this perspective from jurists, see Kahn-Freund, Otto ‘Introduction’ to Renner Institutions of the Private Law (London: Routledge & Kegan Paul, 1949) pp 13–16 Google Scholar; Legrand, Pierre ‘How to Compare Now’ (1996) 16 Legal Studies 232 at 237CrossRefGoogle Scholar; but cf Samuel, Geoffrey ‘Property Notions in the Law of Obligations’ (1994) CLJ 539 Google Scholar; and Goode, Roy ‘Security: A Pragmatic Conceptualists Response’ (1989) 15 Monash University LR 361 at 361Google Scholar.

35 See Gambaro, Antonio ‘Property’ in Candian, Albina, Gambaro, Antonio and Pozzo, Barbara Property, Proprété, Eigentum (Padova: Cedam, 1992) pp 42–45 Google Scholar.

36 Honoré, Tony ‘Ownership’ in Guest (ed) Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1961) p 107 Google Scholar; Waldron above n 22 at 26. For a criticism of Honoré's analysis, see Pavlos Eleftheriadis ‘The Analysis of Property Rights’ (1996) 16 OJLS 31.

37 For an account, see Paterson, Alan The Law Lords (London: Macmillan, 1982)CrossRefGoogle Scholar.

38 Hart, H L A The Concept of Law (Oxford: Clarendon Press, 1961) p 153 Google Scholar.

39 See, for example, Dworkin, Ronald Taking Rights Seriously (London: Duckworth, 1977) p 14 Google ScholarPubMed.

40 (1859) K & J 528, 70 ER 220; above nn 10–12 and accompanying text.

41 Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287; above nn 13–15 and accompanying text.

42 For an analysis of this phenomenon, see Harris, J W, Property and Justice (Oxford: Clarendon Press, 1996) pp 85–99 Google Scholar. This is essentially the criticism made of conventional property reasoning in Ackerman, Bruce Private Property and the Constitution (New Haven: Yale University Press, 1977) p 27 Google Scholar; see also Singer, Joseph ‘The Reliance Interest in Property’ (1988) 40 Stanford LR 611 at 637–641 Google Scholar; Munzer above n 32 at 23.

43 For two accounts of the law which stress the importance of coherence, see Ernest Weinrib The Idea of Private Law (Cambridge, Mass: Harvard University Press, 1995) pp 11–16 and 29–46; Ronald Dworkin Law's Empire (Cambridge, Mass: Belknap, 1986) pp 176–275 and 400–416. For an account that envisages law as evolving in a Hegelian dialectical process, see Alan Brudner ‘The Unity of Property Law’ (1991) 4 Canadian Journal of Law and Jurisprudence 3.

44 Weinrib op cit at 23.

45 See, for instance, Brudner above n 43 at 6. Organic growth was also a crucial part of the work of Frederick Hayek, who saw the common law as the embodiment of free society. Hayek chastised his contemporaries for their ‘anthropomorphism’ or ‘constructivism’ in making the assumption that the common law developed as the result of conscious acts, rather than organically: Hayek, F A Law, Legislation and Liberty (London: Routledge & Kegan Paul, 1982) pp 26–29 Google Scholar.

46 The phrase ‘working itself pure’ derives from Omychund v Barker (1744) 1 Atk 21 at 34, 26 ER 15 at 23 and appears in both Weinrib op cit n 43 at 13, and Dworkin above n 43 at 400.

47 Cowcher v Cowcher (1972) 1 WLR 425 at 430 per Bagnall J.

48 Above nn 9–15.

49 For a discussion of the use of axioms in English law, see Ferguson, R B ‘The Horwitz Thesis of Common Law Discourse in England’ (1983) 3 OJLS 34 at 43–45 Google Scholar.

50 See, for example, Kronman, Anthony The Lost Lawyer (Cambridge, Mass: Harvard University Press, 1993) pp 174–180 Google Scholar.

51 See Stevens, Robert Law and Politics: The House of Lords as a Judicial Body, 1900-1976 (London: Weidenfeld and Nicolson, 1979)Google Scholar.

52 Ackerman above n 42.

53 Roscoe Pound ‘The Theory of Judicial Decision III’ (1923) 36 Harv LR 940 at 955; Robinson, Edward S ‘Law - an Unscientific Science’ (1934) 44 Yale LJ 235 at 237Google Scholar.

54 McDougal, Myers and Laswell, Harold ‘Legal Education and Public Policy: Professional Training in the Public Interest’ (1943) 52 Yale LJ 203 Google Scholar. See Duxbury, Neil Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995) pp 161–203 Google Scholar.

55 White, Tort Law in America (New York: Oxford University Press, 1980) p 63 Google Scholar; Cohen, Felix ‘Transcendental Nonsense and the Functional Approach’ (1935) 35 Columbia LR 809 Google Scholar.

56 Posner, Economic Analysis of law (Boston: Little, Brown, 3rd edn, 1986) p 21 Google Scholar; cited in Brudner above n 43 at 3.

57 See, for example, Eisenberg, Melvin The Nature of the Common Law (Cambridge, Mass: Harvard University Press, 1988)Google Scholar.

58 A variation of functionalism is one that regards functionalism as an empirical truth rather than a nonnative ideal. Many in the law and economics movement have concluded that, by and large, the law does tend to correspond to a commendable normative order; but they argue that this order does not result so much from the concepts and avowed methods of the common law, as from an evolutionary process of natural selection. According to this perspective, it may be that the invisible hand of evolution will better ensure efficient law than will the conscious efforts of man. See, for example, Paul Rubin ‘Why is the Common Law Efficient?’ (1977) 6 JLS 51; George Priest ‘The Common Law Process and the Selection of Efficient Rules’ (1977) 6 JLS 65; John Goodman ‘An Economic Theory of the Evolution of Common Law’ (1978) 7 JLS 393. For an account of American legal history as evolutionary, see Friedman, Lawrence A History of American Law (New York: Simon & Schuster, 1973) p 14 Google Scholar. For a critical review of ‘evolutionary functionalism’ in American legal history, see Gordon, Robert ‘Critical Legal Histories’ (1984) 36 Stanford LR 57 Google Scholar.

59 Weinrib above n 43 at 8.

60 Coleman, Jules L and Kraus, Jody ‘Rethinking the Theory of Legal Rights’ (1986) 95 Yale LJ 1335 at 1340Google Scholar.

61 See, for example, the literature cited and discussed in JrRegan, Milton ‘Spouses and Strangers: Divorce Obligations and Property Rhetoric’ (1994) 82 Geo LJ 2303 at 2341–2345 Google Scholar.

62 Dickinson, H T Liberty and Property: Political Ideology in 18th Century Britain (London: Weidenfield & Nicholson, 1977) p 310 Google Scholar; Stein, Peter and Shand, John Legal Values in Western Society (Edinburgh: Edinburgh University Press, 1974) pp 207–211 Google Scholar.

63 See Horwitz, Morton The Transformation of American Law 1780–1860: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1977) p 256 Google Scholar for a discussion of this understanding in American constitutional law. For a contemporary defence of such a vision of the common law as apolitical, see Weinrib above n 43.

64 For a lucid analysis of this perspective in the context of American constitutional law, see Nedelsky above n 28 at 8 and 195. For studies of the effect of this understanding in the private law, see Rotherham ‘Proprietary Remedies for Enrichment by Wrongs’ above n15; and ‘The Metaphysics of Tracing: Substituted Title and Property Rhetoric’ (1996) 34 Osgoode Hall LJ 321.

65 Op cit at 259.

66 Dworkin, ‘Rights as Trumps’ in Waldron, Jeremy (ed) Theories of Rights (Oxford: Oxford University Press, 1984) p 153 Google Scholar.

67 See above nn 13–15 and accompanying text.

68 See above nn 10–12 and accompanying text.

69 [1971] AC 886.

70 Ibid at 898.

71 [1977] AC 890.

72 Ibid at 925.

73 The rights of buyers purchasing bona fide from those in possession under hire purchase contracts had already been significantly modified by s 27 of the Hire Purchase Act 1964, which allowed title to be passed to private purchasers (the defendant in Mooregate Mercantile Ltd v Twitchings was a motor dealer). A 1994 Department of Trade and Industry Consultation Document proposed that the provision be extended to all hire-purchase arrangements; see Sealy, L S and Hooley, R J A, Text and Materials in Commercial Law (London: Butterworths, 1994) p 342 Google Scholar.

74 See generally Vandervelde, Kenneth J ‘The New Property of the Nineteenth Century: The Development of the Modem Concept of Property’ (1980) 29 Buffalo LR 325 Google Scholar.

75 Nedelsky above n 28 at 228.

76 See, for example, Kurtz, Sheldon and Hovenkamp, Herbert Cases and Materials on American Property Law (St Paul, Minn: West, 1987) p xviii Google Scholar.

77 Weinrib above n 43 at 3.

78 Aristotle, , Ethics (London: Penguin, revd edn, 1976) § 5.52, 1132b, 176–83Google Scholar.

79 Kelsen, Hans What is Justice? (Berkeley: University of California Press, 1957) pp 125–136; discussed in Weinrib above n 43 at 66–68Google Scholar.

80 The classic judicial expression of this view is that of Justice Holmes in International News Service v Associated Press 260 US 393 (1922). In English law, much of the controversy surrounding the question of what can be the object of property has concerned the enforceability of contractually created rights against third parties. The issue has tended to be framed as to whether the parties’ agreement has the effect of transferring a property interest, or whether it creates merely personal rights. For critical accounts, see Herscht Lauchterpacht ‘Contracts to Breach a Contract’ (1936) 52 LQR 494; Gray, K Elements of Land Law (London: Butterworths, 1993) pp 914–927 Google Scholar.

81 Whether the positive law is really consistent with this premise is another matter; see, for instance, Rotherham ‘Proprietary Remedies for Enrichment by Wrongs’ above n 15 at 388 and 407; ‘The Metaphysics of Tracing’, above n 64; Ross Grantham ‘Doctrinal Bases for the Recognition of Property Rights’ (1996) 16 OJLS 561 at 573.

82 Kronman ‘Contract Law and Distributive Justice’ (1980) 89 Yale LJ 472.

83 Trebilcock, The Limits of Freedorn of Contract (Cambridge, Mass: Harvard University Press, 1993) p 101 Google ScholarPubMed.

84 See. for example, Jules Coleman and Arthur Ripstein ‘Mischief and Misfortune’ (1995) 41 McGill LJ 91 at 103. The question of fault poses particular difficulties in nuisance cases. Indeed, a theme in the law and economics literature in this area is that phrasing the issue in this way is naive; the issue is one of conflicting uses in which one party must lose out. The labelling of the defendant as a wrongdoer turns on a prior privileging of the right of quiet enjoyment over the right of use. See Ronald Coase ‘The Problem of Social Cost’ (1960) 3 J Law and Econ 1 at 2; Guido Calabresi and Douglas Melamed ‘Property Rules, Liability Rules and Inalienability: One View of the Cathedral’ (1972) 85 Harv LR 1089 at 1102.

85 For an account of the realists attack on classic liberal conceptions of free-will and causation, see Horwitz, Morton The Transformation of American Law 11: 1870-1960 (New York: Oxford University Press, 1992) pp 10–33 Google Scholar. For a classic modern expression of the view that notions of causation and fault hide distributive considerations, see Guido Calabresi, ‘Concerning Cause and the Law of Torts: An Essay for Harry Kalven Jr’ (1975) 43 Chicago LR 69 at 105–108 Google Scholar.

86 See, for example Escola v Coca-Cola Bottling Co 150 P 2d 436 (Cal, 1944) (strict liability for faulty products).

87 On the question of the reductionism of utilitarian concerns to questions of economic efficiency, see the following symposia: ‘Change in the Common Law: Legal and Economic Perspectives’ (1980) JLS 189; ‘Efficiency as a Legal Concern’ (1980) 8 Hofstra LR 485. See also, Richard Smallbeck ‘The Justice of Economics: An Analysis of Wealth Maximisation as a Normative Goal’ (1983) 83 Columbia LR 48. See also Duxbury above n 54 at 396–407.

88 Above nn 17–20 and accompanying text.

89 This apparent in Learned Hand's famous test, which provides that a defendant is only liable where the cost of preventing the harm is less than the product of the magnitude of the risk and the gravity of the possible harm: United States v Currol Towing 159 F 2d 169 (2d cir, 1947). See also Rowlund v Christian 443 P 2d 561 (Cal, 1968).

90 Calabresi and Melamed above n 85 at 1106–1110.

91 And this certainly has been a popular claim; see above n 58.

92 See, for example, Green, Leon ‘Tort Law: Public Law in Disguise’ (1959) 38 Texas LR 1, 258 Google Scholar; Weinrib above n 43 at 46–48.

93 See generally, Calabresi, Guido The Cost of Accidents (New Haven: Yale University Press, 1970)Google Scholar; Landes, William and Posner, Richard The Economic Structure of Tort Law (Cambridge, Mass: Harvard University Press, 1987)CrossRefGoogle Scholar.

94 For the notion of ‘negative liberty’ as freedom from constraint, as opposed to positive conceptions that seek to guarantee the conditions necessary for self-development, see Berlin, Isaiah Four Essays on Liberty (Oxford: Oxford University Press, 1969) p 131 Google Scholar. For a philosophical defence of positive liberty, see Taylor, Charles ‘What's Wrong With Negative Liberty’ in Philosophy and the Human Sciences (Cambridge: Cambridge University Press, 1985) p 211 CrossRefGoogle Scholar; Waldron above n 22 at 408–415.

95 See especially Charles Reich ‘The New Property’ (1964) 73 Yale LJ 733; and ‘The Individual Sector’ (1991) 100 Yale LJ 1409. For an account of the development of this theme by realist scholars, see Duxbury above n 54 at 103–111.

96 See, for example, Joseph Singer ‘No Right to Exclude’ (1996) 90 North Western LR 1283; Gray above n 27 at 172–181.

97 Radin, Margaret Reinterpreting Property (Chicago: University of Chicago Press, 1993) pp 11–18 Google Scholar. See also Waldron above n 22 at 343–389; Dagan, H Unjust Enrichment: A Study of Private Law and Public Values (Cambridge: Cambridge University Press, 1997)Google Scholar.

98 See, especially, Radin op cit at 35–71.

99 The judiciary of the state of New Jersey have been to the forefront in recognising rights of access; see, for example: State v Shack 277 A 2d 369 (1971); State v Schmid 423 A 2d 615 (1980); Uston v Resorts International Hotel Inc 445 A 2d 370 (1982); New Jersey Coalition against War in the Middle East v JMB Realty Corp 650 A 2d 757 (1994). For a contrasting approach, see the recent English Court of Appeal decision, CIN Properties v Rawlins (1995) 2 EGLR 130.

100 See, for example, Radin above n 98 at 57 (justifying residential tenancy protection) and 111 (justifying adverse possession).