Ownership and offices: the building blocks of the legal order

Abstract

Ownership is not likely to stand out in most people’s minds as either the most central or the most illuminating case of an office. And, yet, I will argue in this article that the idea of ownership as an office is especially revealing of a tension between the concept of an office and the normative significance of offices in a legal order, a tension that property law resolves in a particularly revealing way with respect to ownership. The tension between the concept of office and its normative significance amounts to this: whereas offices are always capable of vacancy because they are impersonal positions of authority separable from the office-holder, the law abhors vacancies in principle. In earlier articles, I have explained how horror vacui motivates property law’s concern ‘to see that the office of ownership is filled.’ In this article, I will explain how and why vacancy in office amounts to a defect in the legal order itself – in brief, because vacancy undermines the effectiveness and, ultimately, the legitimacy of law as a system for allocating authority. I will argue that the potential for vacancy in offices combined with law’s horror vacui leads to possession as a default procedure for appointment to offices, in general, and the office of ownership, in particular.