Possession and the Distractions of Philosophy

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7. Conclusion

My argument in this chapter has been that unlocking the mysteries of possession by starting with first possession and then seeking to account for first possession by asking broad justificatory questions regarding the function and desirability of ownership is mistaken. State of nature stories, in focusing on pre-legal relationships, and interpretive accounts of law, in focusing on law’s place within a broader account of political morality, both ignore the importance of law. I have instead invoked Rawls’s practice conception of rules to show how we can understand justification in relation to constitutive elements of a practice quite apart from any account of the desirability of that practice. Possession, I have claimed, is best understood in light of the legal practice of which it is a part. The constitutive elements of this practice, as presented here, are the formal aspects of the rule of law. Possessory title shows us how the right of possession can be made consistent with the systemic demands of the principles of legality; the formal structure of the right of possession is omnilateral, itself an idea of equality and universality.

To justify possession, on my account, we need to explain it in relation to the rule of law. In contrast, to understand why we might want the rule of law, or how its features should relate to social goals or particular social institutions, raises another set of questions. My goal here has not been to answer these other questions but to pull them apart from an account of possession.

Let me conclude, however, by stepping outside this account of possession and legal justification in order to offer one reason for the general desirability of such an approach. Freeing possession from any particular external justificatory story means that it can be consistent with a variety of such stories.71 These need not overlap or agree in any way for possession itself to be explained or elaborated upon. And in contemporary pluralist societies, marked by deep divisions over basic values, this is no small advantage.72

71 For disagreement on this point, see Ripstein this volume.

72 See also Smith 2009.