In The Construction of Social Reality, John Searle pays close attention to the distinction between brute and institutional facts. Some facts can exist independently of human beings and their institutions; the existence of other facts depends on human institutions. Searle calls the first type of fact brute facts, and the second type institutional facts. The existence of Lake Erie is a brute fact, the existence of nationalities is an institutional fact. This distinction is similar to a distinction which is more familiar to philosophers of law: the distinction between powers and rights. One thing is the power to hold a thing in my hand, and another is the right to hold it in my hand. The existence of powers is, in most cases, a brute fact, and the existence of rights is, in most cases, an institutional fact.
My main goal in this paper is to use the distinction between brute and institutional facts to analyze one type of right: property rights over land (or real estate). As should be clear from the start, the distinction between powers and rights can itself be understood in terms of the more basic distinction between brute and institutional facts. It can be claimed that the distinction between powers and rights picks out the same opposition which underlies the distinction between brute and institutional facts but, instead of applying to facts, the distinction between powers and rights is restricted to claims and behaviors. If we disregard the difference in range of application, we find that the underlying opposition is roughly the same: the opposition between those entities which exist independently of humans and those entities which need humans institutions to exist.
The need for methodological clarity alone would point in the direction
of using the basic distinction between brute and institutional facts in
the analysis of legal concepts. Yet, as I shall show, there is reason why
this move is actually necessary in the case of landed property.
The distinction between powers and rights, narrow as it is, is inadequate
for the analysis of the sort of thing over which the property right falls
-simply, because this distinction is not applicable to things. I want to
suggest that property rights over a land parcel are different from all
other forms of property rights, and that this difference stems from the
peculiarities of the object of the right. It should be clear, then, that
my central thesis is that property rights over land parcels exhibit not
only the (perhaps) obvious institutional aspect which all rights exhibit
just in virtue of being rights, but that the existence of a parcel of real
estate, qua object, is itself institutional. Property rights over land
parcels are different from other property rights and from other rights
in general, and in order to account for this difference it is necessary
to analyze the sort of object to which they apply.
Powers, Rights, Brute facts, and Institutional Facts
Traditional analyses of rights have considered them to be powers. From Ockham to Spinoza and beyond, many authors have considered rights and powers to be synonyms. This orthodoxy of sorts is inadequate, as Alan White has so convincingly shown.(1) According to White, someone might have the power to throw a stone, but not the right to throw it. Someone might have more or less power to get his bicycle back, but he could either have or fail to have the right to get his bicycle back -rights admit no degrees. And it is also possible to have the right to vote, without the power to vote, or to have a property right over a thing, without having much power over it.
Other analyses of rights appeal to the notion of power without claiming that the two expressions are synonyms. Defenders of this view (like Bentham and John Austin) define one of these concepts as a sub-class of the other one. Rights are powers plus justification, or powers plus enforceability, or powers plus State recognition, etc. The strategy of defining one concept as a sub-class of the other is also a non-starter. If it is possible to have the power to do X without having the right to do X, and it is possible to have the right to do X without having the power to do X, as the examples above show, it is hard to see how could one concept could be a sub-class of the other.
It is important to emphasize the difference between this strategy and Searle's view that all institutional facts are reducible to brute facts. For Searle, institutional facts are not a sub-class of brute facts; they are two different classes, though one requires the other to exist. This is not the case with powers and rights, since there can be rights without powers, and powers without rights. For Searle, both brute facts and institutional facts are sub-classes of the general class of facts, but there is no workable, similarly general class which would encompass both powers and rights. Of course, one could, for example, use 'power' in a general way as encompassing both rights and powers-in-a-strict-sense, but the important point here is that this is not what proponents of the sub-class thesis do.
A general problem which most theories of rights face is that the boundary
between a right and a power is often fuzzy. For example, property rights
are sometimes defined as the power to use, abuse, and enjoy the benefits
of a thing, and similarly the right to evict as the power to evict, and
so on. Again, though an institutional fact is a brute fact plus an assignment
of function, it is always possible to distinguish what the brute fact is
from what the institutional fact is. That is, a rectangular piece of green
paper is quite different from money; whereas in typical analyses of rights
it is hard to distinguish between the power to do X and the right to do
X -let us just remember the aphorism: might makes right.
On Property Rights
Attempts to define rights in terms of power, though defective along the lines just sketched, are nevertheless useful, at least as pedagogical devices. Rights to vote, to bear arms, to life, to liberty, etc., are all cases in which the State (or other superior structure, depending on the cultural variations) guarantees that the holder of the right must be protected or reinstated in the enjoyment of a given power, if this has been illegitimately taken away from him. (Notice that this very general explanation in no way commits one to the view that having a right to X requires or is identical with having the power to X.) The relation between rights and powers is indeed an intimate one, though not quite one of dependence.
This general structure of most rights, however, does not lend itself to a full analysis of property rights. The structure of property rights is quite unique. Typical approaches to the analysis of property rights have been metaphorical. In the Anglo-American legal tradition the metaphor of choice has been (ever since Hohfeld used it in 1919) that property is like a bundle of sticks, with each stick symbolizing a specific right. In the civil law tradition, the metaphor of choice is that property rights are elastic, or like a balloon: the inflated balloon symbolizes a property right in which the owner has all the individual rights constituting the property right, and a deflated balloon symbolizes a property right in which the owner has but a few of the individual rights.
Both metaphors capture the essence of property rights quite nicely. Property rights, the rights of an owner, are a collection of other rights. The owner of a jacket has the right to sell, rent, subdivide, use, enjoy, posses the benefits from, give away, destroy, etc., etc., even if he does not have the power to do all these things. Rights other than property rights might, of course, give rise to additional rights too. For example, the right to bear arms entails the right to, say, have access to the gun store, the right to clean and maintain the gun, etc. But, these rights are not constitutive of the right to bear arms. Property rights, on the other hand, are composed of these other rights: they are collections of rights. Being an owner is having those rights (though not, once more, necessarily having those powers).
A traditional distinction in the law has been used in order to account for some of the differences between property rights and other rights. The use of this distinction has its difficulties, since it has different meanings in different legal traditions. The distinction is that between personal and real rights. In the civil law tradition, a personal right is that which links a person with another person; if you and I sign a contract, according to which you are supposed to paint my house, and you do not do it by the stipulated date, I have the right to force you to paint it. A real right in this tradition is that which links a person to a thing, and property rights are the clearest example of these sorts of rights.
In the Anglo-American tradition, the distinction between real and personal is more restricted; instead of distinguishing between rights, it distinguishes between forms of property. There exist in the common-law two forms of property, real property (realty) and personal property (personalty). Very roughly, and following A. J. Oakley's discussion of this topic, property is termed real when courts must return to the owner whose right has been violated the very same thing which was taken away from him; property is personal when the courts would just give a compensation for the lost thing, and not the very same lost thing.(2) The expression real property makes little or no sense to a lawyer trained on the continent or in Latin America; similarly, the expression real right makes perhaps similarly little or no sense to Anglo-American scholars.
The Anglo-American version of the distinction between real and personal
might be more promising for our purposes, since it attempts to distinguish
between two different forms of property, one of which, real property, has
as its most obvious example real estate. Yet, it has been argued (by Oakley,
for example) that this usage of the distinction between real and personal
does not directly distinguish between different types of things.(3)
The distinction between movables and immovables was less important in the
common law than in the civil law tradition, as a result the distinction
between real and personal which referred to rights was modified in order
to refer to property exclusively. But it is clear that the best candidate
for a thing which can always be returned to the owner not in compensation
but in itself is an immovable thing.
On Landed Property and its Object
The example of subdividing or enjoying the benefits of a jacket mentioned above sounds odd. Who subdivides a jacket? Who can enjoy the benefits of a jacket without being in possession of it? Although with these questions I do not wish to suggest logical impossibilities (it is, after all, possible to subdivide a jacket), I do wish to suggest that there are practical oddities involved. Now, in landed property it is very common to have one person who enjoys the possession of the land (the tenant, say), while someone else reaps the benefits of the land. It is also common to find an owner of landed property subdividing his property and then doing different legal and commercial operations with each ensuing portion. This is an important difference between landed and other forms of property. Landed property is the sort of property right where the independence of the individual rights that compose the property right gives rise to more negotiations. Nothing prevents an owner of a jacket, or watch, or painting, from subdividing these, but this hardly ever happens. On the other hand, subdivisions of land parcels are trivially common, just as are many other negotiations dealing with one or several of the rights which compose the property right.
A similar point can be made regarding the role that property rights play as securities. Of course, one can guarantee the payment of this or that obligation with a luxurious watch, or with a diamond, but the traditionally favored method has been to require landed property as a warranty. Even when one's warranty is simply a co-signer, it is arguably the case that the worth of the co-signer might be measured, ultimately, in terms of the landed property the co-signer owns. Landed property, as a matter of fact, was considered an appropriate form of guaranteeing obligations as early as the Old Testament, where the incipient forms of buy-back clauses were depicted.
These peculiarities of landed property have much to do with the sort of object over which the property right falls. Though property is the same in a general, theoretical sense, whether it is property over a watch, or property over a land parcel, the two cases are quite different from a practical perspective. Watches, though created by men, once created do not need human institutions in order to exist: the existence of watches insofar as they are objects is a brute fact. (It might be held that the fact that it is a watch is an institutional fact, just as the fact that something is a screwdriver can be held to be an institutional fact, but the fact that the watch is a thing is brute.) On the other hand, the existence of parcels of real estate is wholly a matter of human institutions: without humans all there is, is raw land. And what an owner of landed property owns is not raw land. The owner owns a land-parcel, or real estate (I use the two expressions as synonyms).
An owner of real estate does not own land simpliciter, I wish to claim that there are important differences between raw land and real estate. If an owner owned land simpliciter, my thesis regarding the institutional character of the existence of land-parcels would be obviously wrong, as the existence of land simpliciter, say, Mount Everest, is as brute as a fact can be. The crucial difference between raw land and real estate is that the latter comes into existence, and it is maintained in its existence as a result of complicated networks of declarations and other institutional facts, while the former is not. A land-parcel is created, amongst other things, by creating boundaries on the surface of the earth, and the existence of these boundaries is clearly not brute.
I wish to mention a few differences between raw land and real estate which will help me to dispel two possible objections to my thesis that raw-land and real estate are different. The two objections are, first, that raw land and real estate are not so different, and second, that whatever difference they might have, other objects over which property rights fall exhibit the same difference.
a) Real estate must have definite, known (or at least knowable) boundaries. When someone owns real estate, he owns a portion of the raw land that exists in brute fashion.
b) Real estate must have access. Closely connected with the previous point, a parcel of real estate must be accessible. Examples can be perhaps concocted regarding the possibilities of real estate in places where humans do not have access yet, say, the moon. But, first of all, there is some access to the moon, and second, it can be argued that the potential buyers of real estate in the moon would buy it with the expectation that at some point it will be easily accessible. Quite likely the attractiveness of real estate is that to buy it now would be wise, because once those parcels would be easily accessible they would cost much more.
c) Real estate is three-dimensional, extending above and beyond the land itself. An owner of real estate might have the right to prohibit his neighbor from building a structure on that neighbor's parcel, if part of that structure invades the space above his own. A parcel of real estate also includes parts of the sub-soil. There are vast differences regarding how much of the sub-soil is belongs to the parcel. For example, in the United States, if an owner of real estate finds, say, oil on his land-parcel, that oil is his; whereas in other countries, such as Mexico and Venezuela, the oil is always owned by the State. These differences also serve to emphasize the institutional character of real estate.
d) Real estate gives rise to neighbors. As a matter of logical necessity, every parcel of real estate neighbors another one, and that other parcel usually belongs to someone else. There are no neighbors in the case of raw land simply because they are no boundaries in raw land. Even the so called bona fide boundaries, those obvious discontinuities on the surface of the earth, such as coastlines, mountain ranges, rivers, etc., are not boundaries until someone considers them to be boundaries. It might be easier to consider a bona fide boundary of the sort just described as a boundary than it might be to consider a fiat, arbitrary line a boundary, but both are the result of human conventions.
e) Real estate has different conditions of identity than raw land. If William owns real estate in Erie County, he would own exactly the same real estate if I were to substitute a portion of the raw land which makes up his real estate with Venezuelan raw land. Yet, from the perspective of raw land, William's land has changed.
Fine, someone might retort, raw land and real estate are different more or less along the lines I have sketched, but my explanation of these differences applies as well to most, if not all, other objects over which property rights fall. For example, a raw painting (understood as blotches and smudges of colors) differs from a work of art, or a raw fabric (understood as a mere aggregate of threads) differs from a jacket in more or less the same way as raw land and real estate do. The objector might suggest that the primordial distinction between raw land and real estate is the distinction between a non-commercial, non-legal entity, and a subsequent commercial, legal entity. And this same difference obtains between a watch qua machinery and a watch qua fungible object of commerce.
But this is implausible. After all, human intentionality is involved
in the creation of the aggregate of threads and in the creation of the
color smudges in a way which is clearly not present in the case of raw
land. But even if for the sake of argument we were to accept this objection,
it would still not be too threatening. Because, at best, the objection
would amount to a mere terminological objection. For, I might grant that
given any object whatsoever which can be the object of a property right,
we can distinguish between the object qua-whatever and qua-commercial-legal
stuff. Even granting that, however, only the most stubborn objector would
deny that this distinction is greater in the case of land than in any possible
example of a movable thing.
The Distinction Between Movable and Immovables
Different sorts of objects have been recognized as such by the law. The distinction between movables and immovables has been important, though not as important as it should be. Most legal systems recognize a difference between two general forms of property: property over movables and immovables. The paradigmatic example of an immovable thing has been land; the examples of movables are as obvious as varied: clothes, ornaments, cars, etc. Though there are some important differences which stem from this distinction, such as the fact that in most legal systems property over immovables must be registered, or that the relation between possession and property is closer in the case of movables, the traditional distinction has its shortcomings.
First, the distinction is too lax insofar as it allows too many things to count as immovable, thus becoming a distinction different from the one I am emphasizing here. As reported by the great scholar of the civil law tradition, Marcel Planiol, these are the main types of immovables:
a) Immovables by nature: the typical example of which are parcels of real estate, edifices (including buildings), and plants adhering to the soil.
b) Immovables by destination: the best examples of which are agricultural machinery and animals associated with cultivation. These are all movable things which the law immobilizes in virtue of the relation of dependence which exists between them and other objects which are immovable by nature.
c) Immovables by the object to which they are applied: this category refers to rights. This is a bold fiction of the law. An obvious point has been put eloquently by Planiol: "rights, being incorporeal are, strictly speaking neither movables nor immovables. They are not tangible. They take up no room."(4) In any case, the distinction classifies a right as immovable if it falls over an immovable thing, and classifies a right as movable if it falls over a movable thing.
d) Immovables by declaration: these are the boldest fictions of the law, insofar as their immovability is just a consequence of someone's wish. Someone may, for example, declare some specific good to be immovable. In countries where the civil law tradition is preponderant, declaring the furniture of one's home to be an immovable inseparable from the home itself is a common practice.
The degree of fictionality increases as we go down the list. Yet, even in the case of immovables by nature, the element of fiction is found: neither raw land nor plants adhering to the soil are really immovable.
The second problem with the traditional distinction between movables
and immovables is that, probably because of the liberality with which it
allows almost anything to count as immovable, it obscures the real difference
between parcels of real estate and other things when it comes to property
rights. It is in the case of real estate where the object over which the
property right falls is itself an object whose existence is an institutional
fact. Plants, animals, and the other things which one can declare to be
immovables are not things whose existence is an institutional fact, though
the existence of their acquired immovability, of course, is. In the last
section of the paper, I will explore some of the consequences which the
inadequate treatment of the differences between real estate and other things
which can be owned have caused.
From Estates to States
Most law-school curricula assume a sharp distinction between public and private law. Morris Cohen has described the situation in American Law Schools:
Property and Sovereignty, as every student knows, belong to entirely different branches of the law. Sovereignty is a concept of political or public law and property belongs to civil or private law. This distinction between public and private law is a fixed feature of our law-school curriculum.(5)
Property is pervasively seen as belonging to private law, and not only in the Anglo-American legal tradition. In light of the considerations above, however, it turns out that parcels of real estate have less in common with watches, jackets, etc. (true objects of private law), than the traditional theories of property would reveal. Moreover, parcels of real estate are rather similar to states, that is, to those other objects whose existence is an institutional fact and which are created in virtue of artificial boundaries drawn on the surface of the earth. Of course, I do not want to suggest that a parcel of real estate and a state are the same thing; I just want to suggest hitherto unnoticed similarities.
Being a sovereign of a state is, very roughly, having a collection of rights over the territory which composes that state. Granted, many of these rights are of a more political nature: punishing criminals, conducting marriages, building schools and school-curricula, establishing immigration and taxation policies. Yet, none of these rights is inherently such that it cannot be given away to a third party, and, as we saw above, this is a characteristic of a property right as well. Sovereignty, like property, can be seen as a collection of rights.
There were times, say feudal Europe, when property and sovereignty were not considered to be so different, when the owner and the sovereign were the same person (or group of persons). (This is still the case in some tribal cultures of Africa and South America.) Nothing in the realm of logic prevents an arrangement of the state in which the sovereign is the owner, or an arrangement in which owners, while not sovereigns, might have more 'political' rights. But even as things stand now, analyzing property rights over land along the lines sketched allows us to see a political side to property rights which is not commonly analyzed.
The characteristics of the collection of rights which, in a given society, an owner of real estate has, together with the relationship between his collection and the collection of rights which the sovereign has, might be valuable in assessing the degrees of political and economic freedom that such society has. It hardly seems important to include here the characteristics of property rights over things other than land-parcels. These considerations are not merely suggestions for pedagogical improvement; they are useful means to allow for a better understanding of the nature of landed property and real estate.
Finally, once it is realized that any legislation regarding real estate is doubly institutional, it might be easier to assess some objective shortcomings of each legislation. For example, a system of real estate in which the demarcation of the boundaries is not accurate, as is frequently the case in Latin America and Africa, is a system in which the very objects over which property rights fall are defective. When a system of land registration reflects that two or more different owners own the same parcel of real estate, this system would be reflecting a fundamental problem: the very things which it has created are defective. The situation would be analogous to that in which the boundaries between nations were not clear, and many nations would dispute the same portions of raw land. (Why the latter situation gives rise to wars, whereas the former merely gives rise to jurisdictional disputes, is an interesting topic which I cannot address here.)
Of course, if a given nation has a system of real estate which exhibits
this sort of problem, the negotiations with some of the individual rights
that make up the property right can be affected. It can be complicated
to subdivide a land parcel whose boundaries are not well established, the
worth as a warranty of such a parcel might be lower than if clearly delimited,
It turns out that a good system of land registration, for example, is not merely good for economical or organizational reasons, but it is a necessary condition for the intelligibility of a given system of landed property. The very notion of property right, the second level of institutionality involved in property over land parcels, is affected by the defects at the level of the objects themselves.
1 Alan R. White, Rights, Oxford: Oxford University Press, (1980), p. 149 ff.
2 J. A. Oakley, "Immovable Property", in Droite Anglais, (J. A. Jolowicz, ed.) Paris: Dalloz (1986), p. 339.
3 J. A. Oakley, op. cit., p. 339
4 Marcel Planiol, Treatise on the Civil Law, (Luisiana State Law Institute Translation), Vol. 1, Part 2, twelfth edition (1939), p. 301
5 Morris Cohen, "Property and Sovereignty", Cornell Law Review 13 (1927), p. 8.