Author:Humbach, John A.
Position::The Art of International Law

Property law, like all law, is indeterminate. This means that ownership itself is indeterminate and every owner is vulnerable to challenges based on unexpected legal rules or newly created ones. Even the most seemingly secure rights can be defeated or compromised if a clever-enough lawyer is retained to mount a challenge. The casebooks used in first-year property courses are full of examples. In the case of particularly valuable property, such as works of art, the motivation to fashion arguments to support ownership challenges is obvious. Short and strictly interpreted statutes of limitations can mitigate the risks to ownership by cabining the timeframes from which title challengers can draw facts to support their claims.


Property is a fundamental and pervasive social practice. In everyday interactions, people recognize, respect, and reaffirm "ownership" in a myriad of different ways. There are many similarities between the law of property and the social practice. In both, for example, owners are viewed as having a variety of special advantages or benefits, including, most prominently, the right to have or possess the things they own; the right to exclude others from them; and, generally, the right to deal with them more or less as they please. The law of property and the social practice are, however, different in important respects. Perhaps most important: when compared with the law, ownership in the social practice of property is not a particularly complex concept. In everyday social interactions, a person either owns something or does not. In the law of property, by contrast, the conception of ownership is far less simple.

Because the law of property and the social practice are different, it is possible for the two to give different answers on questions of who owns what. The law, of course, takes precedence, but only if someone invokes it. This does not mean, however, that the social practice of property necessarily follows the law on questions of ownership. What is more accurate to say is that, as long as the players in the social practice do not takes steps to invoke the legal system to resolve disputes, the social practice of property generally ignores the intricacies and vagaries of the law. Meanwhile, ownership in the social practice of property is constantly affirmed and reaffirmed in the ways people deal with one another in ordinary social interactions. Legal ownership is, by comparison, rarely declared by the institutions of the legal system and almost never reaffirmed at law. Consequently, attributions of ownership under the social practice of property almost surely predominate over legal ownership in people's property consciousness. When the law does intervene in ownership disputes, however, the outcomes are as likely as not to go against the social practice. Even as a purely legal matter, such outcomes are largely unpredictable.

There are practical and theoretical reasons for this divergence and unpredictability. The practical reason is that lawyer time is expensive, and persons having legal expertise usually do not get professionally involved in (or, at least, they do not spend much time on) cases whose resolution is "clear cut" or "easy." Lawyers are only likely to get seriously involved in ownership disputes when they believe the issues, either of law or fact, are at least plausibly contestable, with sound reasons in support of outcomes going either way. That is to say, there must ordinarily be a fair degree of uncertainty as to how a legal dispute will come out before a client will want to spend money on the lawyer hours needed to seek a legal determination. This pre-requisite of uncertainty is in and of itself enough to make the outcomes of legal disputes notably unpredictable.

The theoretical reason for the divergence lies in the intrinsically indeterminate nature of the law itself. Although there is little debate about who owns what in the usual social practice of property (meaning most property rights seem more or less secure from serious challenge), one should not be lulled into thinking that most property rights are relatively secure at law. Nor should one assume that it only makes sense for people to take property disputes to court in those cases where the social practices provide no clear answer. Whether an ownership dispute is plausibly contestable, and therefore fit for a lawyer's attention, is never a purely objective matter; it is never a question whose answer depends solely on applying a fixed set of legal rules to objectively relevant facts. Even if it seems clear that a person owns a particular item under the relevant social practices, or even under the law, a skillful lawyer can often persuade a court to take the property away from the person who has it and give it to somebody else. That is to say, a lawyer who is adept at discovering and advocating alternative bases for decisions, drawn from the vast array of conceptual resources that the law provides, can make a case plausibly contestable and therefore unpredictable.


    Standard first-year property-law casebooks are filled with cases of putative owners who faced surprising challenges to their ownership, often resulting in partial or total losses of valuable property. (1) Even though these erstwhile owners had no reason to doubt their ownership under the social practice or law of property, it turned out that some unexpected legal technicality (which they probably didn't even understand) meant somebody else, completely unsuspected, was declared the actual owner. And even when these challenged owners managed to avoid losing their property entirely, the trip they had to take up the judicial ladder--perhaps all the way to their state's highest court--was hardly a painless or inexpensive adventure.

    Oliver Wendell Holmes once wrote that the law is simply " [t] he prophesies of what the courts will do in fact, and nothing more pretentious" than that. (2) For Holmes, the common law was not an objectively ordered, "brooding omnipresence in the sky" (3)--not a body of rules existing "out there" like Plato's Forms for judges to discover, declare, and woodenly follow to resolve disputes. On the contrary, Holmes suggested that the only law that can be known, as opposed to predicted, is the law that was applied in the past, which can be seen by looking back at what judges have done in already-decided cases. (4)

    This "Legal Realism" of Justice Holmes, as carried forward by the modern Critical Legal Studies movement, places great--some would say excessive--stress on the fact that law, by its very nature, is always in some degree indeterminate. Different lawyers can make different predictions about "what the courts will do in fact," (5) but no one can say with certainty what the outcomes will be in future cases. As one scholar has explained, judges have "tremendous leeway" (6) to decide cases more or less as they see fit:

    Depending upon how a judge would read the ... precedents, she would extract different rules of law capable of generating conflicting outcomes in the case before her.... [T]he choice of which rules to apply in the first place is not dictated by the law and ... competing rules will be available in almost any case which reaches the stage of litigation. (7)

    As every modern lawyer knows and often takes for granted, these possibilities make the law, as well as the actual outcomes of specific cases, very susceptible to advocacy.

    Observations about the law's indeterminate nature apply equally to legally enforceable property rights, which cannot be predicted (except through educated guesses) by reference to legal rules. Even the most confident declaration that "O owns X" is only a prophesy of what a court will do, and such prophesies are always subject to challenge and possible refutation in litigation. No matter how confident the prophesy, a sufficiently skilled lawyer will always be able to invoke various competing rules whose force may undercut the current putative owner's claim. For the court deciding the case, "the choice of which rules to apply ... is not dictated by the law." (8) And therein lies the fundamental indeterminacy of ownership.

    But this is not all: a court not only has a choice of which rules to apply, but also the option of abolishing old rules and making up entirely new ones if a skillful lawyer can persuade it to do so. (9) A simple case...

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