REAL ESTATE AS INSTITUTIONAL FACT : TOWARDS A PHILOSOPHY OF EVERYDAY OBJECTS

I Introduction 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 fight 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. II 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. (White, p. 149 ff.) 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. …