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making it an ‘unqualified human good’.30 Weinrib has recently described omnilaterality and its role in private law in the following terms, in which he emphasizes its public nature:

The relationship between the litigating parties is bilateral, linking the plaintiff to the defendant; the relationship among members of the state is omnilateral, linking everyone to everyone else. Both the bilateral relationship between the parties and the omnilateral relationship among members of the state have their respective normative dimensions. For the bilateral relationship, the normative dimension consists in the parties’ subjection to the correlatively structured bases of liability. For the omnilateral relationship, the normative dimension consists in every member’s subjection to the state’s lawful authority as it acts in the name of the citizenry as a whole. In adjudication, a court combines these two dimensions by projecting its own omnilateral authority onto the parties’ bilateral relationship. The court thereby extends the significance of its decision beyond the specific dispute, making it a norm for all members of the state.31

Although the idea of omnilaterality may be an important aspect of an account of state authority and state institutions, we should not be so quick to equate it with either: the state does not create omnilaterality but some conceptions of the state and its legitimacy presuppose its possibility. The conception of omnilaterality that is normatively independent of particular institutions is of a relationship between persons marked by the qualities that characterize the rule of law.32

In what follows, I will show that omnilaterality and the rule of law illuminate how possession is at its core an idea of legal order with respect to ‘objects’ (places and things). Possession can be understood in these terms quite independently of justification stories, of either the state-of-nature or Dworkinian variety.

3. Possession and Title

Let me begin with a claim of C. B. Macpherson, which I take to be uncontroversial. He argues that ‘[a]s soon as any society, by custom or convention or law, makes a distinction between property and mere physical possession it has in effect defined property as a right’.33 If I am holding an apple, then I have physical possession of it. I have a property right when I put the apple down and it still remains ‘mine’ in some sense. I take this as the starting point for what follows. As outlined earlier, there are three basic aspects of possession in property law: what Macpherson calls ‘mere physical possession’, a right to possession, and possessory title. A right to

30Thompson 1975, 266. He used the term ‘equity,’ by which he meant equality rather than what lawyers mean by equity. To avoid confusion, I have substituted equality. Thompson was also quite sensitive to the horizontal dimensions of law. See 267 ff.

31Weinrib 2011, 196.

32It might be that the rule of law requires institutions in order for society to coherently implement its demands. Many accounts have stressed, for example, the importance of courts and an independent judiciary (Waldron 2008, 20). My point is simply that we can separate the idea of omnilaterality from the question of particular institutions.

33Macpherson 1978, 3.

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possession is the form of ‘property as a right’ that I am concerned with here. I argue in this section that possessory title is the result of seeking to maintain the distinction between physical possession and a right to possession within a system of property that is part of a legal practice as outlined in Section 2. In other words, possessory title is about ensuring that a right to possession is consistent with the rule of law. We do not need to search for pre-legal origins to understand possessory title, we just need to understand the defining role of the rule of law.

Suppose that I have a possessory right to the apple that I have picked and I want to put it down and save it for later use in a pie. This ability to put it down—to no longer have to be in physical possession of it—is at the heart of what we mean by property rights but it also generates a problem for a system of law. The problem is that, even though I have a right of possession, once I put it down it is no longer clear to others who is entitled to the apple. A system of property needs title conditions, or rules that indicate to all who the person with a right of possession is. For the sake of simplicity I will refer to this person as the owner, for in Section 4 I will show how the idea of a right of exclusive control is connected to ideas of use and alienability that are often thought to constitute the core elements of private ownership.34

Title conditions are one of the ways that the legal system keeps ownership consistent with the requirements of legality, including the requirements of publicity and the ability to comply with the law. If the legal system recognizes a right of possession—and this is the starting assumption of this discussion—then this right needs to conform to these constitutive elements of the practice of law. Everyone subject to the law needs to be able to ascertain that something is owned and who the owner is if they are to avoid liability as well as make use of their own legal powers, such as powers of contracting; if I know that something is owned then I will not interfere with it, if I know who owns it then I can negotiate with the owner for permission to use it.35

In the absence of the state creating a public system of title, such as when it sets up a land registry system of some sort, common law courts developed the idea of possessory title. What possessory title rules say, in general, is that you should consider as owner the person who is acting as owner; the person acting as owner is the person acting as if she is the rightful possessor by exercising control over the thing in question.36 Now, of course, the person acting as owner is not necessarily

34Section 4 outlines the relationship of the right of possession to ideas of use and alienability, as well as to the fragmentation of ownership. With these ideas in place, we can make a distinction between an owner and a rightful possessor—such as in the relationship of bailor/bailee or licensor/ licensee.

35I am drawing here on a distinction made by H. L. A. Hart, that some laws impose obligations (let’s call these liability rules) and some provide facilities for individuals to realize their wishes (let’s call these power-conferring rules). Ownership involves both liability rules and power-conferring rules, and intersects with other areas of private law that involve both liability and power-conferring rules (like contract law) and the requirements of the rule of law must be understood in relation to both. See Hart 1961, 27–8.

36The test for possessory title is actual control and intent to control; what counts as fulfilling this test varies according to factual context.

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the person who is the owner. In fact, in solving the problem of title through relying upon possession another problem is introduced. Ownership allows me to put down my apple but title requirements seem to require that I keep holding it.

What is important to keep in mind is that possessory title rules do not say: the person holding the apple is the owner. They are rules addressed to third parties who need to know that things are owned and by whom if they are to follow the law. Numerous discussions in the case law confirm this view, with their emphasis on needing clear rules to avoid disputes37 and needing to avoid a free-for-all where the strongest win over the weakest.38 These are not ideas of ownership but ideas of legal order. Ownership is not forgotten, but preserved in a particular way, through the idea of the relativity of title. For example, the rest of the world is entitled to treat a finder as owner, but the owner’s claim to the thing found remains superior.39 I may put ‘my’ apple down and somebody else might pick it up and have their possession protected as against others, but it remains ‘mine’ and the court will assist me in its return.

Although this idea of the relativity of title preserves both the idea that ownership allows me to put my apple down and the need to create a public system of title, it introduces another systemic issue. We can see the possibility that the person in actual possession of the apple is not the owner but to make out this claim in court the owner has to prove that they are the owner—in other words, they have to prove their prior and superior title to the finder. The owner will have to show prior possession. Moreover, since there is always the possibility of other prior claims, there is scope for a great deal of uncertainty in this system of title, which undermines the rule of law values it is meant to express. This is why all legal systems of property have some means of cutting off prior claims. These methods get more complicated, and sometimes are rendered obsolete, as the state steps in to provide systems of title that do not rely upon possession.40

There are many details that could be filled in but I want instead to point to the key differences between this account of possessory title and the accounts that I started out discussing. On my account, possession gives someone a title claim not because possession justifies ownership in some manner—as useful labour, as a reward, etc.—but because a system of property must conform to the rule of law and this requires a public system of title. In this way possessory title does not point to justification stories for ownership but towards the requirements of the practice of law. Seeking to understand the law of possession through state-of-nature inspired stories of first possession is a mistaken strategy for it supposes that the question of why we want a practice like property law is the best, or even a good, way to tell us what the practice is. Moreover, its very strategy is to seek what is normative about property independently of the practice of law. For similar reasons, this account departs from a Dworkian approach to interpretation insofar as that approach

37 Pierson v Post 1805.

38 Parker v British Airways Board 1982.

39Parker v British Airways Board 1982.

40For example, many states that embrace a Torrens system do away with the doctrine of adverse possession or retain it only to deal with a narrow range of disputes.

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suggests that the strategy for understanding possessory title is to seek the underlying moral principles that justify it. The salient idea of justification, I suggest, is much more modest and limited to an explanation of how it is a part of the practice of law.

4. The Right of Possession and its Omnilateral Structure

The argument so far is that a number of the questions of possession can be understood as working out what a right to possession means within a system of law. But, one might now object, surely we need to ask more substantive justificatory questions if we are to get much further in understanding possession. Even if we can make sense of the possessory title cases, there are other important questions regarding how we are to understand the nature of the right of possession—a right that was assumed, rather than explained, in the discussion of title. This question of the nature of the right becomes particularly important in relation to other questions regarding property rights, such as the relation between possession and ‘ownership’ or the relation between possession and other property rights traditionally ‘bundled’ into ownership such as alienability and use. In other words, what about the idea of ownership? Surely there we need to return to more original justificatory questions, or at least some understanding of the types of interests served by possession?

My answer is no and I will provide this answer in a very counter-intuitive way. I want to return now to the state of nature, and the one that I want to return to is Kant’s. Kant, like many theorists, was preoccupied by the question of how a unilateral act—individual appropriation—could lead to a right of possession binding on others. His answer was that possession is not about unilateral actions but omnilateral relations. As I have already discussed, omnilaterality is an idea of law— sometimes associated with its ‘public’ nature but best understood as involving a relationship that holds equally between each individual and every other individual.

Kant introduced this idea in the service of the kind of justificatory story I have been arguing is unnecessary—and even unhelpful—for understanding possession. For Kant, because the right of possession is omnilateral, it is not possible in the state of nature; external objects can only be ‘mine’ in a civil condition.41 However, in a state of nature we can have provisionally rightful possession.42 What this means is that when I pick an apple from a tree, place it in a basket and proceed to build a fence around the tree and the basket, I do not violate the freedom of another. The important point, however, is that it is also the case that you do not violate my freedom when you climb my fence and take my apple (so long as I am not holding the apple, for that is an interference analogous to assault). For the apple, or the apple tree, to be ‘mine’, it must also be the case that you wrong me (violate my freedom) when you interfere with my possession of it.43 And this requires the

41	Kant 1797, 257.	42 Kant 1797, 257.
43	If another person deliberately takes the apple and destroys it simply for the reason of harming the

interests of the person who picked it then an individual can, as a matter of right, resist such treatment. For Kant, one of the duties of right is the duty of rightful honour: ‘Do not make yourself a mere means

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omnilateral perspective, which for Kant implies the civil condition. Since the right of possession is only possible in a civil condition, this provides a reason to enter into a civil condition and even to compel others to do so. Provisional rightful possession (in a state of nature) therefore serves as a bridge connecting the idea of freedom and the rightful condition. Because of this it also plays a role in determining the boundaries of legitimate political authority, which for Kant is rooted in the requirements of a rightful condition.44

However, we can accept Kant’s insight regarding omnilaterality and not follow him in his particular justificatory story. As I outlined earlier, omnilaterality is not simply a way of characterizing the public perspective of law and its institutions. Importantly, it implies an understanding of horizontal relations between individuals that are characterized by the universality and equality that many have argued is bound up in our most basic—and formal—understandings of the rule of law. Rawls’s argument regarding the practice conception of rules tells us that to ask whether possession is justified is simply to ask whether it can be explained through reference to the practice of which it is a part. To say that the right of possession is omnilateral is therefore to say that we can understand it in relation to the practice of law. Indeed, as I will now outline, the concept of omnilaterality provides us with the formal structure of the right of possession.

To illustrate this structure, consider the following three examples. First, suppose that we accepted the idea that my possession of an apple created an obligation that you refrain from interfering with my possession. This would mean that my act, which is unilateral, imposes an obligation on you. It is true that we get a kind of correlative right and duty through this, whereby my right to possession is correlated with your obligation to refrain from interference. However, I would not be under a reciprocal obligation to anyone else simply in virtue of my unilateral act. Your possession of an apple could, in such a system, impose an obligation on me to refrain from interference with this possession. Now we would both be under obligations to respect each other’s possession. This does not, however, transform these obligations into reciprocal obligations—they are simply two unilaterally imposed obligations that as a matter of fact, but not necessity, mirror one another. The relation can be represented through the diagram in Figure 8.1.

Suppose now that we instead posit that everyone enters into a series of bilateral agreements whereby A agrees to forbear from encroaching on B’s possession in exchange for B’s promise to forbear from encroaching on A’s possession. A and B would then do the same with C, and so on. This relation can be represented through the diagram in Figure 8.2. The result of this is that A has a right of possession as against B and C and both B and C have obligations to forbear from

for others but be at the same time an end for them’ (Kant 1797, 237). However, the right to resist being treated as a means does not itself transform the act of treating someone as a means from a violation of virtue into a violation of right. Therefore this does not establish a Kantian right of possession in the state of nature, simply an individual privilege to resists some kinds of interference with possession.

44 See Ripstein 2009, chs. 8 and 9.

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A	B	C

B C A C A B

Figure 8.1. Unilateral Structure

A B

C

Figure 8.2. Bilateral Structure

encroaching on A’s possession. However, this is not a correlative right and duty in property because there is nothing about A’s possession that is the ground of B and C’s obligation to forbear from interference with it. The fact that A has a right and both B and C a duty is simply the incidental effect of the various agreements, the normative force of which lies in contract. To get an idea of possession as a right good against the world one has to then create the further fiction of notional contracts, unless one supposes that one can contract with everyone in the world.

Both the unilateral structure and bilateral structure of a right of possession are different from the idea of an omnilateral structure. Instead of a collection of unilateral relations running in parallel, or a collection of bilateral agreements binding particular people together, an omnilateral relation would take the form: everyone’s power to possess is the ground of the liability that everyone has to fall under an obligation to refrain from interference with those things acquired by other’s exercise of that power. We can represent this in a diagram as in Figure 8.3. In this way, you get the correlative right and obligation but there is a general and systematic quality to it precisely because it is not a series of bilateral agreements involving particular individuals. It is also important to note that in this structure non-owners are not related to one another as non-owners, nor are owners related to one another as owners. Instead, each person is related equally to each other in a very particular way: through a correlative relation involving a power to possess and a liability to falling under an obligation. It is this omnilateral structure of an otherwise bilateral relation that creates the generality and impersonality that characterizes ownership. The logical result of this structure is a correlative relation between owner (who could in principle be A or B or C . . . ) and non-owner (who could in principle be A or B or C . . . ). What omnilaterality shows us is how people may be directly related (whoever is the owner is related to whoever is the nonowner) yet in a thoroughly general way (who the owner is and who the non-owner is can change yet the relation remains the same).

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	A	B

C

Figure 8.3. Omnilateral Structure

An omnilateral relation sounds a lot like Hohfeld’s ‘multital’ rights.45 However, it is distinct in at least two important respects. Consider Hohfeld’s characterization of possession as a multital right: ‘If A owns and occupies Whiteacre, not only B but also a great many other persons—not necessarily all persons—are under a duty, e.g., not to enter on A’s land. A’s right against B is a multital rights, or right in rem, for it is simply one of A’s class of similar, though separate, rights, actual and potential, against very many persons.’46 The first distinction between multital and omnilateral lies in the characterization of multital rights as a ‘class of similar, though separate, rights’. The second distinction between multital and omnilateral lies in the characterization of multital rights as being held against a large and indefinite group of people. For Hohfeld, A as owner holds multiple rights against multiple people. Possession as an omnilateral relation has a different structure that provides a way of seeing that there is just one right at issue, not multiple rights, and this right is not held against multiple particular others but rather a general other. The owner holds a right as against anyone who is a non-owner, whoever that might be. It is one correlative relation, but a relation marked by the generality and impersonality of owner and non-owner.47

This account of omnilaterality also differs from more recent accounts of the structure of property rights. I will take two here to illustrate the differences. James Penner argues that we need to focus on the nature of the duty to not interfere with the property of others. This duty is not specific to particular owners. As Penner outlines, even if the owner of Blackacre changes, ‘[e]very one else maintains exactly the same duty, which is not to interfere with the use and control of Blackacre. It matters not one whit to the content of this duty in respect of Blackacre that B now owns it instead of A.’48 Penner argues that Hohfeld went wrong in accepting that there should be symmetry between rights and duties. Instead, we need to see that the duty in rem is primary.49 In contrast, my account of possession as an omnilateral relation maintains the symmetry between rights and duties while agreeing with Penner that there is no specific duty owed to specific owners. The key is not to eschew this symmetry but to understand the generality of the rights and duties at issue. The owner who holds the right holds that right as owner and not as a specific person—it is like a role that one steps into but which others may also occupy in

45	Hohfeld 1917b.	46 Hohfeld 1917b, 719, emphasis mine.
47	In this I agree with Kocourek who argues, on different grounds, that the distinctive feature of in

rem rights is not that they are held against a large and indefinite class of people but that there is no need to identify the person who holds the duty. Kocourek 1920 and 1921.

48 Penner 2000, 23. 49 Penner 2000, 27.