82	Alan Brudner

Personality claims a right to subdue the totality of things and cannot in principle rest satisfied until it has done so. Furthermore, because personality is at this stage the singular personality of the atomistic individual, the presumed right of personality to infinite accumulation is the equal right of each separate personality to such acquisition. We have, therefore, competitive claims of right to an infinite accumulation. Under these conditions, any unilateral acquisition by one necessarily frustrates the project of another, for it makes him worse off in terms of his selfvalidation as an end. Because a right based on unilateral acquisition would preclude the self-validation of all other persons, it cannot be valid in an unqualified sense.

Accordingly, if private property is to exist prior to a public scheme of distributive justice, it must somehow reconcile one person’s right to exclusive possession with the freedom of acquisition of all others. A unilateral acquisition can generate property if and only if it is made consistent with the right of others to an unlimited accumulation.

3.3 Exchange

Exchange remedies the three defects in unilateral acquisition.32 First, in alienating my possession, I resolve the contradiction between my claimed mastery of the object and my actual dependence on it for validation. That is so because, on the one hand, I demonstrate my independence of the object by letting it go; but, on the other, I remain the recognized owner of the object’s exchange value. As the product of an agreement of free wills, exchange value is the same metaphysical identity of qualitatively different particulars that personhood is. Therefore, the person can depend on it without contradicting its end-status vis-à-vis material things; what it depends on is an intellectual object that is just the reflection of itself. No doubt this object has a physical token that may be possessed and used (say, for melting into a substance convertible to a tooth). But the fact that money is a token shows that what is owned in owning money is something intellectual—that a coin’s use value as a physical object is something ancillary and insignificant. In any case, once property in exchange value can be realized without the mediation of physical currency, its emancipation from materiality is complete. While a banknote may still have some incidental use value as a piece of paper, the number debited from the purchaser’s bank balance to the credit of the seller’s has no material or useful properties whatsoever.

Second, when exchange takes the form of an executory contract—of an exchange of promises to deliver equivalents in the future—ownership has freed itself entirely from the contingency of empirical possession. It is no longer the case that I must possess something empirically in order to have the right to possess it even when I am away from it. By virtue of contract, I have the right to possess something even though I have never possessed it and whether or not I actually possess it. In this way, contract turns acquisition by original possession on its head. Whereas before,

32 In this subsection I read Hegel’s extremely condensed text (1820b, paras. 71–4) in a way that should be regarded as Hegelian in inspiration rather than textually determined.

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empirical possession preceded intellectual possession (a right to possess) and was needed for it, now intellectual possession precedes empirical possession, which is not needed for it. Indeed, the intellectual possession is not even of the material object bargained for; it is rather ownership of a certain monetary value of the object, for this is what the promisor guarantees irrespective of whether the promisee purchases a substitute matter on breach. In the executory contract, then, ownership’s independence of matter and contingency is complete and so too, therefore, is ownership. We can say that end-status is best embodied, not in the intellectual possession of a material object, but in the intellectual possession of an intelligible object—exchange value.

Third, exchange solves the competition problem. To isolate the property-valid- ating role of exchange, assume that the object offered for sale has never been sold before, that the holder has it through first or adverse possession. Now, in purchasing the object, I recognize the other’s ownership by awaiting his decision to alienate it and by giving him an equal value in return. Yet I do not thereby foreclose my opportunities for unlimited acquisition, because I recognize his ownership of the thing only insofar as it becomes available to me, and he recognizes my ownership under the same condition.33 But not only does my contractual partner recognize my ownership. Because (assuming perfect information) all other persons have passed on the opportunity to acquire something offered for sale in a public market, indeed have registered the cost of their disappointment in the value I must relinquish to own it, recognition for holdings acquired through open exchange is omnilateral rather than simply bilateral. That is to say, my contractual partner is a conduit for a mutual recognition between the all and the individual even prior to the existence of a public authority. The market recognizes something as mine only insofar as I reciprocally acknowledge others’ interest in the object by paying the social cost of their going without it. As a consequence, contracts manufacture rights in rem; relative rights go in and absolute rights come out.34

The upshot is that our final properties are not in the physical things we possess in isolation but in their metaphysical values realized in exchange. What I own without qualification is not the thing I unilaterally possessed, but only the equivalent value allotted to me by the market when I relinquish my possession—a value reflecting everyone else’s frustration in letting me have it. Inversely, the one who owns something as a pure commodity abstracted from its material and useful properties is its absolute owner, for his ownership is recognized by all in return for his acknowledging (by paying) its social cost. To him alone belongs a right in rem.

33Hegel 1820b, paras. 72–4.

34David Hume’s ‘social convention’ theory of property explains property as originating in a common interest in the secure possession of what people already hold or might acquire through fortune and industry. But according to Hume’s account of human nature, our avidity is ‘insatiable, perpetual [and] universal’, while external goods are scarce relative to our limitless wants; Hume 1739–40a, 492. Why then would we, especially the stronger among us, tacitly agree to an arrangement that perpetually excludes us from what we desire? The market exchange theory of property unites the convention theory with what is missing from it—namely, an account of how a convention of respect for exclusive possession can be made compatible with freedom of acquisition.

84	Alan Brudner

Thus, the best validation of end-status with respect to an object is a paper title indicating receipt through a market transaction from someone qualified to relinquish an ownership that is best so far—that no one else can trump. The ownership conferred by that paper requires no physical possession, trumps ownership by prior possession (for example, a squatter’s), and, once certified against prior claims, cannot be extinguished by adverse possession.35 Indeed, it can even stand serenely aloof from a tenant’s temporally finite right to exclusive possession. It is timeless, metaphysical ownership—the kind of ownership that alone fulfils a claim of endstatus raised above all finitude, relativity, and contingency.

That contract is the perfection of property is reflected in the law of property. At common law, ownership by possession and use yields to ownership by deed or contract. Thus, before its first sale, no one but a prior possessor may eject a squatter from Blackacre. But if a prior possessor with best relative title conveys Blackacre to a buyer, the buyer may eject the squatter though the squatter’s possession preceded his. Is this because the buyer received and now asserts the seller’s best relative title? That cannot be, because the seller’s title was relative to those who had established no connection with Blackacre, whereas the buyer’s title is good also against the seller by virtue of the latter’s having consented to it by a voluntary transfer. So the buyer has more than the seller had thanks to the seller’s recognition. But recognition, we saw, is not simply bilateral. The buyer’s title is also good against those who either passed on Blackacre or bid unsuccessfully for it and for whose disappointment the buyer paid. Let us say this group comprises all. So the buyer’s right against all is now based on an action in which all were involved and reciprocally considered rather than (like the first possessor’s) on a unilateral doing exclusive of all. This means that the buyer may eject the squatter, not because he asserts the seller’s prior possessory right, but because he wields a new right against the world that is derived from a market exchange and that trumps the squatter’s relative title based on possession.

Now suppose that buyer (B) sells Blackacre to C, who is dispossessed by D, who purports to sell the fee simple to E, who, unaware of D’s defective title, sells the ‘fee simple’ to F, and so on for a hundred years. Notwithstanding that he took in an open market, the last buyer lacks a right in rem, for his right is provisional on no one’s (in this case none of C’s heirs) showing up with a better claim from the distant past. Even if there were no better claim, no one could know this, and so all property would be provisional—infected with contingency—leaving the person’s claim of unconditioned end-status unrealized. Knowledge of title, it thus turns out, is not an end of policy that public law adds to the pre-civil derivation of property—something

35 On the surface, the ousting of adverse possession by certification of title has an instrumental explanation. The quieting purpose of certification would be defeated if a squatter could oust the registered title holder by long use. But there is a deeper reason. Without certification, ownership acquired through exchange is provisional on no one’s showing up with a prior claim, and in that sense it is still relative or in personam. That is why adverse possession can still defeat it. Once certified, however, ownership via exchange is truly absolute or in rem; and the relative property conferred by the unilateral action of using cannot trump in rem ownership recognized by all.

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external to the person’s self-validation in ownership of things; it is rather intrinsic to the fulfilment of that project.

Accordingly, whereas unilateral possession confers a relative property, acquisition in an open market confers a right in rem—or would if not for the fog obscuring the chain of title. At this point, natural property requires an artifice to resolve that uncertainty in a way that reconciles the last buyer’s property with a dispossessed owner’s. So, market actors might set up a public record of transactions and accept a registered deed of sale with patently unbroken pedigree as valid against the world; and, obversely, they might tacitly deem an open market exchange to pass absolute title to a good faith purchaser who buys without public notice of a dispossessed owner’s title.36 By means of such a convention, market society completes the saga of the person insofar as a pre-civil condition can do so. It establishes a valid right in rem and so (but for the egocentricity of Abstract Right, about which more presently) fulfils personality’s project of self-validation in things.37

The foregoing account of property reveals the conceptual link between property and contract.38 It shows that contract is not the arbitrary transfer of a property juridically complete prior to exchange but rather itself the perfection and legitimation of private property. Perhaps it is not a complete legitimation. After all, if the rightfulness of exclusive possession depends on there being an equal opportunity to bid for commodities, then it would seem to depend on everyone’s having the wherewithal to bid, for otherwise equal opportunity is formal. Yet Abstract Right is indifferent to how buying power is distributed. Because it sees end-status as reposing solely on free will, Abstract Right is content if every person is formally at liberty to bid for objects and to enter into exchanges to acquire them, and if every object is available at a price. Having or not having the means to bid is a peculiarity of the individual having no interpersonal salience; only persons count for Abstract Right, and they are neither rich nor poor.

36Indeed, market actors could also cooperate in setting up a title registry, and they could mutually guarantee title by voluntarily paying into an insurance fund from which compensation is paid to anyone aggrieved. Thus a public authority is not needed for publicly recognized and certified title; it is needed only to compel compliance with the public system already in place. Rather than creating property, the public authority puts the finishing touches on it.

37What if, as with chattels, there is no public record of transactions? In that case, another custom is required to bolster the market’s fulfilment of the right in rem. It must be generally accepted that, if the thief (T) cannot be found, the bona fide purchaser (BFP) may elect either to restore the object to the owner (O) in return for the price he (BFP) paid or keep the object and compensate O. If T is known, reconciling O’s and BFP’s rights in rem would seem to require that BFP retain the object, leaving O to seek compensation from T. The law of market overt (one-sidedly favouring the BFP) was abolished in the UK by the Sale of Goods (Amendment) Act, 1994, ch. 32. This effectively means that there are no in rem rights to chattels in Britain, that all property in chattels is provisional there.

38James Penner denies this link, arguing that property is sufficiently explained as an exclusive right to determine the uses of a thing; see Penner 1997, 91–2. However, Penner’s argument seems to be a petitio principi. He first stipulates that the concept of property is individuated by the interest in determining the uses of things and then, finding nothing in the concept so defined that entails a right to make binding agreements, he concludes that property and contract are separate concepts. They are indeed distinct concepts, but it doesn’t follow that they are unconnected. If property is understood as a valid claim to be master of an object, then the social validation that comes through contract may be seen as the fulfilment of property.