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Servitude law, Land transactions, Touch and concern requirement, Richard Epstein


Law and Society | Property Law and Real Estate


What do we want from a restatement of servitude law? Doctrinal simplification presents one obvious objective. Property teachers and their students commonly observe that the law of servitudes is a mess. However, doctrinal simplification surely does not present the only objective of the restatement. Developing a unified body of servitude doctrine, by itself, merely creates a sense of aesthetic coherence. Presumably the project aims at achieving more than just that. Law reformers generally seek to enhance the legal system's substantive coherence. At this level--developing a set of substantively coherent doctrinal practices--I am skeptical about the servitude restatement project.

A restatement requires a background theory that structures the discourse by which the specific issues of policy are debated. Recent scholarship on servitude law clearly indicates that such a background theory already exists for this restatement. That background theory rests on the familiar, liberal distinction between individual freedom of choice and coercion. Recent normative debates over servitude law structured by that distinction have a familiar ring: should servitude law be oriented by a strict contractarian ethic, as Professor Richard Epstein urges, or should it include concessions to a regulatory or interventionist ideology? An essentialist quality permeates the way participants in these debates have argued. They have implicitly assumed both the possibility and the desirability of classifying every aspect of the legal apparatus for adjusting conflicting land-use preferences as either choice-maximizing or choice-inhibiting.

Strong reasons support skepticism about this discursive structure. Its beguiling simplicity seriously distorts social reality. Choice and coercion are not alternative objective social states that either exist or do not exist. Rather they are rhetorics that, though contradictory, are both always available as interpretations of any given social experience. Pretending that they are more than just opposing rhetorics creates a form of nominalism that privileges one understanding, one interpretation. Choice and choicelessness do not occupy isolated realms of human activity. Rather they continuously intrude upon each other. In this Article, I will discuss how the rhetoric of freedom of choice and coercion obscures the choicelessness problem as experienced by actors in nominally consensual land transactions.

Publication Citation

Published in: Cornell Law Review, vol. 73, no. 5 (July 1988).