1. I use the word “commons” to mean either open access or common property. Kant, for instance, conceived of unowned things as accessible to all but not owned in common by all. By contrast, Locke, following natural-law tradition, conceived of men as owning all things in common. For a discussion of this tradition, see Gopal Sreenivasan, The Limits of Lockean Rights in Property (1995), at 22–24.

2. See, e.g., Coase, R.H., The Problem of Social Cost, 3 J.L. & Econ. 1 (1960)CrossRefGoogle Scholar; Richard Posner, Economic Analysis of Law ch. 3 (2007). For an overview of contemporary utilitarian property scholarship, see !Merrill, Thomas W. & Smith, Henry E., What Happened to Property in Law and Economics, 111 Yale L.J. 357 (2001)CrossRefGoogle Scholar.

3. For influential recent articulations of virtue and egalitarian theories of ownership, see, e.g., Alexander, Gregory S., The Social-Obligation Norm in American Property Law, 94 Cornell L. Rev. 745 (2009)Google Scholar; Peñalver, Eduardo M., Land Virtues, 94 Cornell L. Rev. 821, 878 (2009)Google Scholar; Alexander, Gregory S. & Peñalver, Eduardo M., Properties of Community, 10 Theoretical Inquiries L. (2009)Google Scholar; Joseph William Singer, Entitlement: The Paradoxes of Property (2000).

4. There are, of course, others—most notably, contemporary Lockean accounts of ownership. But in some ways, the debate among contemporary Lockeans simply reproduces the debate between instrumentalists and libertarians. Are property rights natural rights that we acquire by mixing our labor with things? Or are they subject to fundamental reallocation within civil society in pursuit of collective goals? Both positions have been adopted within contemporary Lockean scholarship. For a concise overview of the scholarship, see Alex Tuckness, Locke's Political Philosophy, in Stanford Encyclopedia of Philosophy (2010) (comparing Robert Nozick's libertarian interpretation of Locke with James Tully's reading, according to which property rights do not constrain government in civil society because civil society operates in conditions of scarcity).

5. See Robert Nozick, Anarchy, State and Utopia (1974).

6. Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009). There are, of course, other interpretations of Kant. I do not take on these points of debate here, and for the purposes of this paper, I refer to Ripstein's approach as the “Kantian approach.”

7. For Kant, this is a relational claim: property rights are juridical relations that take the form primarily of a claim-right that others not interfere. This is a departure from a tradition in which ownership was cast as a relationship between a person and a thing, a tradition that Kant explicitly rejected. See infra note 82 and accompanying text (discussing the Hegelian alternative, in which ownership is taken to describe a relationship between person and thing).

8. For a more detailed discussion of how many modern egalitarians approach property theory, see Section II below. Law and economics scholars, coming from a very different point of view, similarly expect a theory of property to serve as a practical tool for the resolution of determinate use-conflicts, as do Lockeans. Thus Lockeans think that real-world problems of scarcity and waste not only condition the legitimacy of ownership but also produce clear limits on the nature of property rights. See, e.g., Sreenivasan, supra note 1, at 95–119.

9. What I say here can be generalized to utilitarians, too.

10. Other critics raise a number of additional problems that I do not take up in this paper. Hanoch Dagan, for instance, argues that there are at least two other problems with the Kantian account in addition to the ones I raise here: first, an inegalitarian private-law regime will likely produce an inegalitarian public-law regime for the simple reason that people are unlikely to support public-law initiatives that undermine or conflict with their private-law entitlements; and second, a reliance on public-law institutions to guard against poverty entrenches rather than alleviates dependence because of the likely relationship between the poor as “passive recipients of welfare” and the bureaucrats with the authority to dole out support: realistically bureaucrats are unlikely to act as true fiduciaries, and the poor will depend on their goodwill. Hanoch Dagan, Property: Values and Institutions (2011), 57.

11. See Ripstein, supra note 6.

12. See Penner, J.E., The “Bundle of Rights” Picture of Property, 43 UCLA L. Rev. 711 (1996)Google Scholar; Merrill & Smith, supra note 2, at 357.

13. Louis Josserand, De l'esprit des droits et de leur relativé: Théorie dite de l'abus des droits 277 (1927).

14. For an overview of this movement, see Penner, supra note 12, passim; and discussions in Merrill & Smith, supra note 2, at 369–370; and Katz, Larissa, Exclusion and Exclusivity in Property Law, 58 U. Toronto L.J. 275, 276 (2008)CrossRefGoogle Scholar.

15. Not all instrumentalist theories of ownership have the ex post flavor of the dominant approach. See, e.g., J.E. Penner, The Idea of Property in Law (1997); Smith, Henry E., Property and Property Rules, 79 N.Y.U. L. Rev. 1719 (2004)Google Scholar; Smith, Henry E., Exclusion versus Governance: Two Strategies for Delineating Property Rights, 31 J. Legal Stud. 453 (2002).CrossRefGoogle Scholar

16. As others have pointed out, this introduces a lot of uncertainty into the law of property as potential users of resources anticipate the way in which a judge might resolve the conflict. See, generally, Merrill & Smith, supra note 2; and Merrill, Thomas W. & Smith, Henry E., The Morality of Property, 48 Wm. & Mary L. Rev. 1849, 1867 (2007)Google Scholar.

17. For a critique of this approach on the grounds that it fetishizes interdependence much as the Kantian approach does independence, see Dagan, supra note 10.

18. See id.

19. See Peñalver, supra note 3, at 878. See also Alexander, supra note 3, at 760–774.

20. See Katz, supra note 14, at 276.

21. It is crucial to see just how important public right is to Kant's theory of law, and it is grossly misleading to analyze his account of private rights in isolation. See Ripstein, supra note 6, at 270–271 (contrasting the Kantian approach, which posits a crucial role for public institutions, with Lockean and Nozickean accounts, which treat the state “as an organization created by private persons for distinctive private purposes”).

22. See id. at 31–34, 52, 91. Kant's conception of freedom, in which a person is free only if she is not subject to the choice of another, contrasts with a much more robust notion of freedom in which a person is free only if she has certain capacities that enable an autonomous life.

23. Material inequality is thus perfectly consistent with formal equality, by which Kant understands people not to be subject to the choices of others. See id. at 18. By contrast, progressive property theorists such as Hanoch Dagan, for example, argue that consistency with freedom in this purely formal sense is insufficient to justify property rights and make the case for a substantive concept of freedom to operate at the level of limiting property rights. See Dagan, supra note 10.

24. Ripstein, supra note 6, at 63.

25. Id. at 18, 275–276.

26. I discuss the structure of property rights in more detail below in Section V. For Kant, the right to exclude protects against two kinds of interferences: someone can prevent me from using my means in the way I have chosen (by injuring me in some way) or she can use my means for purposes I have not myself chosen to set and pursue. Ripstein, supra note 6, at 43–45.

27. Id. at 92.

28. The state must also furnish other public goods, e.g., roads and public spaces, that Ripstein conceives of as establishing the preconditions of freedom for us all. Id. at 232–266, 271–272.

29. Kant acknowledges that people have moral obligations to make responding to the needs of others generally one of their ends. See, e.g., id. at 25.

30. See id. at 201–202 (discussing the duty of officials “to rule in conformity with the idea of the original contract,” which treats officials as acting as servants of the people, making arrangements for them that they would have been entitled to make for themselves (and so which precludes making arrangements that thrust some into poverty). Id. at 273.

31. Id. at 279–280. See also id. at 284–286 (suggesting that Kant's argument, which is formal in structure, is not limited just to biological needs).

32. For Kant, this duty cannot be offloaded onto private institutions such as religious organizations or private charities, even if these institutions are better at achieving substantive relief against poverty. These institutions remain private—the fulfillment of religious obligations is a private purpose—and so cannot solve the problem of dependence, which requires public right. See id. at 282–283.

33. This is why for Kant, there is nothing like a Lockean “enough and as good” proviso to save property rights in a state of nature. See id. at 149.

34. Id. at 150.

35. Id. at 151.

36. The legal realist movement claims a great deal of the credit for undermining the place of the public/private distinction in contemporary legal thought. See, e.g., Horwitz, Morton J., The History of the Public/Private Distinction, 130 U. Pa. L. Rev. 1423 (1982)CrossRefGoogle Scholar. There is a voluminous literature on this question in American law reviews.

37. This objection was raised by participants at the Cornell-Harvard Progressive Property Theory Conference (2010). Hanoch Dagan raises a similar concern that relates to the inherently partisan nature of democracy and its effects on the use of public institutions to achieve egalitarian goals: interest group politics are likely to stymie purely public solutions to problems of poverty. See Dagan, supra note 10, at 12.

38. See Smith, Henry E., Self-Help and the Nature of Property, 1 J.L. Econ. & Pol'y 69, 80–92 (2005)Google Scholar (arguing that self-help remains a legal and so a judicially defined privilege). Rights against private individuals are no more self-defining and self-enforcing than are the demands we can legitimately make of the state but are themselves also filtered through the institutions of the state. The enforcement of private rights is further complicated by the institutional limits that judges and bailiffs confront. Cases of necessity, for instance, are confounded by the ex post role of judges and bailiffs, who are not in fact on hand to mediate between owners and needy outsiders. Private rights thus may suggest a right but not a remedy and in effect amount to unenforceable duties in some circumstances.

39. See supra note 30 (discussing idea of original contract).

40. Ripstein, supra note 6, at 202 (“Kant's argument does not say that since officials are making law, they should do the ideal version of lawmaking, or that in making law they are already committing themselves to some aspirational ideal of law”).

41. Some egalitarians emphasize problems with the quality of answers that a democratic state will produce in response to the problem of poverty. See Dagan, supra note 10. Others emphasize the illegitimacy of laws that fail to address these problems adequately and suggest that people do have a right to disobey the law in response to poverty (and other injustices as well). See Eduardo Moisés Peñalver & Sonia K. Katyal, Property Outlaws (2010).

42. Ripstein, supra note 6, at 285 (the “requirements of creating and sustaining a system of equal freedom under self-imposed laws . . . demand certain institutions but do not dictate specific results”).

43. See Ripstein, supra note 6, at 25, 232. Ripstein makes the case generally that taxation to fund a range of social welfare programs, such as universal health care and public education, is perfectly consistent with the Kantian approach. See infra notes 56–57 and accompanying text.

44. Ripstein, supra note 6, at 232–266.

45. The use of the word “contamination” is meant just to highlight the difference between a Kantian approach, in which the state's and owners' spheres of authority are necessarily separate, and the porous quality of the categories “public” and “private” from an instrumentalist perspective, which results in a breakdown in the public-private distinction.

46. Libertarians are quick enough to raise concerns about public decisions that tread on the private sphere, but this is not matched by an equal concern that some decisions are properly made just in the name of all, that is, publicly. Nothing I say here rules out the moral obligations that private individuals may have to make other-regarding decisions.

47. Even very basic human suffering, such as hunger, may not be self-evident, nor will there be an obviously correct answer to the problem. See, e.g., Sam Dolnick, The Obesity-Hunger Paradox, N.Y. Times, March 14, 2010, at MB4, a recent article explaining the complex relationship between hunger, food insecurity, and obesity. The author cites a recent survey that finds “that the most severe hunger-related problems in the nation are in the South Bronx, long one of the country's capitals of obesity.”

48. Public decision-making may in fact be contaminated by private purposes, insofar as private lobbies and interest groups have a huge influence on the actual choice of policies. It is an institutional challenge to produce genuinely public choices following public deliberations that make room for different voices. To the extent that a system is in fact failing to live up to its own political ideals, the shortcomings of any political processes do not or should not become the guiding principles of the institution. Modern, real-world democracies aim to limit the effects of factionalism so as not to hand over public decision-making to private individuals or groups outright.

49. Ripstein sometimes puts this point in terms of democratic decision-making (Ripstein, supra note 6, at 285). But democracy is not an essential part of the argument here. Rather, it is simply that the decision-maker acts in the name of all and not in his own name as a private actor. This idea is best captured in administrative law by the limitations regularly imposed upon public decision-makers: they must reasonably and fairly adjudicate between competing interests.

50. Courts might be seen as the originators of policy choices rather than just as a corrective for private decisions. Seen that way, courts are like legislators exercising “public right”—a function to which there might be democratic objections.

51. See Alexander & Peñalver, supra note 3, at 143.

52. Dagan, supra note 10, at 5–6.

53. See, e.g., Alexander, supra note 3.

54. We should not confuse requirements to provide in-kind contributions with the kind of internal social-obligations norms that some property theorists argue inhere in the idea of ownership. See Ripstein, supra note 6, at 245–256 (discussion of in-kind provision of goods and some of the considerations that will bear on the decision to leave it to owners to make fine-grained decisions, e.g., about how to pave the public road in front of their property).

55. Id. at 237 (“state power is only justified to create a system of equal freedom”).

56. Id. at 285.

57. Id. at 293. Note that Ripstein offers other grounds on which public education might be justified, including the state's mandate to maintain its own authority by guarding against threats posed by instability within or outside its jurisdiction. See id.

58. Id. at 285–286.

59. To get some of these initiatives—for example, affirmative action—off the ground, we might need to move past arguments about individual dependence to arguments based on the state's mandate to ensure the conditions of its own survival by guarding against internal and external threats such as economic instability. Thus laws that promote diversity, equality, and cultural achievement might arguably guard against the alienation of segments of the population and the instability (political and economic) that might result.

60. Rawls, for example, offers a more palatable and much looser understanding of “public reason” that appears to leave a wide swath of public initiatives such as regulation of the environment, markets, etc., free to proceed on the basis of cost-benefit analysis. See John Rawls, The Idea of Public Reason Revisited, in The Law of Peoples 129 (1999).

61. E.g., Liam Murphy and Thomas Nagel's view that the “task of the tax designer is to come up with a scheme that is both efficient and fair” is undoubtedly uncontroversial to laypeople, policy analysts, and tax lawyers alike. Liam Murphy & Thomas Nagel, The Myth of Ownership: Taxes and Justice 12 (2002).

62. Ripstein, supra note 6, at 267.

63. The pragmatic progressive might want to know precisely what projects are precluded by the Kantian framework. But the Kantian project is not set up to deliver answers to this kind of question; Kant's aim was to set out the bases of state authority and not to prescribe the outcomes the state must achieve.

64. See, e.g., Dagan, Hanoch, The Limited Autonomy of Private Law, 56 Am. J. Comp. L. 809 (2008)CrossRefGoogle Scholar (arguing that public and private actors are both constrained in their exercise of their rights and powers by distributive concerns).

65. I am taking the perspective of the progressive here. The Kantian is not directly concerned with making property rights consistent with social welfare, if we understand that to mean substantive justice in the real world. Rather, on a much more abstract level, the Kantian is concerned with achieving social solidarity—that is, the possibility that we can all join together in a civil union as formal equals.

66. Ripstein, supra note 6, at 91.

67. Note that the account of ownership that follows is not necessarily rooted in a Kantian approach. My point is just that there is nothing in the Kantian account that rules out this more flexible understanding or that commits us to accepting the idea of ownership as a right to exclude.

68. Ripstein refers to “purposiveness” as “your capacity to choose the ends you will use your means to pursue.” The innate right to freedom protects this capacity for choice against the choices of others. See id. at 34.

69. The Kantian position, unlike other exclusion-based approaches, is that ownership is relational. Ownership has a distinctive structure but not because of some relationship of identification between owner and the thing. Rather, it is simply because of the way in which property allows us to extend freedom as independence (a relation that obtains between people) to the external realm.

70. Recall that my aim here is limited to showing how Kantian premises can deliver a different conclusion about the form of an owner's entitlement from the one that Kant (and Ripstein) endorse.

71. See note 24 and accompanying text (on Kant's view that ownership does not interfere with the formal freedom of others).

72. Autonomy in this sense describes a person's state rather than her standing relative to others.

73. Ripstein, supra note 6, at 43–50.

74. A person's body simply is that person. For Kant, there is no distinction to draw, as we might between a person and an external thing.

75. This is akin to the argument put forward in John Gardner & Stephen Shute, The Wrongness of Rape, in Oxford Essays in Jurisprudence (4th ser., J. Horder ed., 2000). They point out that the wrongness of a “harmless” rape is the fact that the rapist has literally used his victim (for she is her body in an important sense), which is clearly to wrong her by treating her as an object. The same cannot be said of those who use the property of others: “Anyone who had been raped and said it was like being burgled would be committing a serious travesty. It would show extraordinary moral insensitivity . . . primarily because property rights are necessarily the derivative or shadow case.”

76. While the kind of decisions that owners make concerns the thing straightforwardly rather than how others ought to act or not act with respect to a thing, ownership has a relational quality because an owner's decisions about things affects the normative status of others, or so I have argued. See Katz, supra note 14. For example, Owner A decides to farm part of Blackacre and leaves the rest wilderness. A's right in Blackacre could be protected by an exclusion rule that obligates others to keep out of Blackacre. Or it might be protected by an exclusivity rule that obligates others to walk only on the wilderness parts and to avoid the fields under plough.

77. It would be consistent with this account to recognize principles associated with relativity of title, e.g., squatters' rights or finders' rights, in which case the choices that others make with respect to a thing they do not own may have priority relative to the choices of third parties. Of course, the supremacy of an owner can be adequately preserved in a system of law that recognizes relativity of title. The finder or squatter must be obligated to defer to the true owner, and if any third party derives a right directly from the owner herself, she would have no obligations to defer to the finder or squatter.

78. Philip Pettit, Republicanism: A Theory of Freedom and Government 51 (1997). For Pettit, self-mastery is possible only when we are also independent. See id. at 82.

79. Id. at 52–53 (describing interference as acts that worsen a person's situation by changing, inter alia, the range of options available to her) and 54–55 (distinguishing “virtual” capacity to dominate, e.g., by an agent who did know of the existence of a potential victim, from “actual” capacity to dominate, with which Pettit thinks republicanism is primarily concerned).

80. Hegel sets out the classic personality-based account of property in Georg Wilhelm Friedrich Hegel, Philosophy of Right (1942). See Jeremy Waldron, The Right to Private Property (1988). Contemporary versions include Penner, supra note 15, at 169–186; and Margaret Jane Radin, Reinterpreting Property (1993).

81. Hegel, supra note 80, at ¶41.

82. Ripstein suggests in a footnote that Kant was once taken with the view that ownership is about people's relationship to things, a view that Hegel revives by conceiving of property as the external loci of our wills. See Ripstein, supra note 6, at 93. Ripstein goes on to say that although Kant later fiercely rejected this view, glimpses of it remain. One way of reading what I say here is that Kant's obsession with exclusion may be a holdover from Kant's earlier views and not justified on its own terms.

83. See Penner, supra note 15, at 71 (pointing to the practical advantages of using exclusion to protect our interests in use); Smith, Henry E., Mind the Gap: The Indirect Relation between Ends and Means in American Property Law, 94 Cornell L. Rev. 959 (2009)Google Scholar (defending gap on grounds of efficiency).

84. This approach has its own failings that I deal with elsewhere. See Katz, supra note 14, at 283–284.

85. See e.g. Merrill, Thomas W. & Smith, Henry E., Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale Law Journal 1 (2000)CrossRefGoogle Scholar; Smith, Henry E., Exclusion versus Governance: Two Strategies for Delineating Property Rights, 31 Journal of Legal Studies S453 (2002)CrossRefGoogle Scholar.

86. Id.