Durable Choice

About the Book

1. This essay builds a single system of legal analysis and so unifies the disparate disciplines of the law.

2. This essay is a search for common ground. There are basic ideas and methods of dispute resolution that are common to, and unify, the many doctrines of law. The purpose is to define the fundamental parts of the concept of property; to identify the methods used to analyze disputes involving competing claims; and to show that these methods apply without regard to the content of the property rights under examination. Although the goal is to build a single system, the goal is not to show that there is exists one overarching concept of property that applies to all persons at all times.

3. Property Defined: A Durable Choice Property is the ability to make a decision that is both reliable and exclusive in relation to a given goal. “Reliable” means the ability to survive foreseeable risk. “Exclusive” means the ability to prevent other people from controlling the same decision.

Property begins as someone realizes that she understands the differences within a set of choices and that she is capable of choosing the one which best suits her goals. This realization marks the difference between darkness and light. So long as someone believes that her life is driven by the Fates, the notion of private property does not arise. Indeed, the notion cannot arise, because decisionmaking would be pointless. But once a person begins to weigh risk against opportunity, and discovers it is possible to pick the safest road toward a goal, the individual begins to own something.

4. Property is not necessarily “good.” Over the centuries, philosophies of law have aimed at confining private property to that which supports some idea of justice. Under this view, property is the area of activity where the individual can extend himself legitimately or ethically. But property is merely the ability to perform work, and, by itself, it has no more moral character than units of electric current.

5. Property has a universal definition, but its specific content is relative to each time, place, and person. The fact that property is relative does not mean that it does not exist, nor does it mean that it can be redefined, taken, or stolen without consequences. What a society accepts as property directly affects both its economic and noneconomic transactions.

6. Exclusivity performs two important functions. First, it draws the boundary around the combination of legal relations that one person controls. Second, exclusivity defines the area where people in a society will accept the risks and opportunities of one person making a self-interested decision. What characterizes the Western property system, compared to other cultures, is that the individual’s area of unfettered activity is much broader and requires each person to accept more risk. Other societies restrict the individual more but share more risk, as well.

7. Reliability can originate by simple agreement between two people. A law, as such, is unneeded. American society has seen the development of such new forms of property as transferable licenses, which become property by virtue of protection by government, and the persistence of such ancient forms as bartering, often protected only by dark of night.

8. Property in its Context: the Social Contract Allocating opportunity and risk requires society to address and resolve four issues. What opportunities may people keep for themselves? What opportunities must be shared with others? When can a person demand help from others? When must a person bear his injuries alone? Every agreement between two people resolves these questions in some way; when applied to society at large, the answers define justice.

Private property exists when a person can expect her decision to survive foreseeable risk. The social contract develops in much the same way. There is a cont

About the Author

Mark Andrews is a 1975 law graduate of Georgetown University. He is currently Associate Counsel for Tanana Chiefs Conference, Inc., a tribal organization. Andrews lives with his family in Fairbanks, Alaska.