Calabresi and Melamed's View of the Cathedral

• Imaginary Encounter on the Clapham Omnibus

Otis dearly needs a hug. He loathes himself for this thought. He fancies sidling up to that blonde he spies on a side-view mirror staggering out of a pub, saying with a smirk, 'Hey, Miss! You look like you can do with some help. Shall I give you an embrace?' She will just fall dreamily into his toned arms, her brain cells lost under a cosy blanket of ethanol molecules. But he won't get that blanket to escape under when the long arm of justice, with its unpredictable might, tugs him to a jail teeming with robbers and killers, themselves with tentacular limbs raring for any kind of squeeze. The trade-off is not worth it. He's smarter than that. The traffic lights turn green.

Actually, it matters not whether the hugger is a blonde. Whom he really wants is someone genuine, someone just as smart, someone with an attentive ear, someone not about to press against just anyone's chest, someone who sincerely feels and cherishes him for who he is. In fact, Otis can see this long-haired angel vividly right now in his mind, walking forth and wrapping her supple arms around his neck. He, in turn, slides his hands down from her shoulders and, brushing past the soft skin on her back, pulls her thin waist towards him...Crash! His hatchback rams into the SUV in front, which driver stomps out fumingly. Her expenses for pills, rehabilitation, vehicle repair, and additional travel, on top of compensation for pain and suffering, will likely be his expenses.  

W O M E N. He's had enough of them for a night: the drunk, the imaginary, and the tempestuous. Otis frowns bitterly in the police station as he signs a form with a gift pen from the memory clinic. A voice floats over from behind, 'It's horribly surreal and draining when parents fall sick, isn't it? I thought I could take a break from watching over my fall-prone dad tonight since my sister's in town, but on my way back, this dude I was sharing a cab with tried to get fresh with me, so I threw him a punch and here we are.' He turns around to see a familiar figure, now with lucid eyes and rod-straight posture, shrugging.

'Care for a hug?' She beamingly extends her arms.

• What is Calabresi and Melamed's View of the Cathedral?

Eager to capture how the appearance of Rouen Cathedral changed with light at different times of the day and in different weather conditions, Claude Monet painted some 30-40 views of the building, now scattered over various private collections and galleries around the globe, from 1892 to 1894.*1*2 Titling their 1972 seminal paper 'Property Rules, Liability Rules, and Inalienability: One View of the Cathedral', legal scholars Guido Calabresi and A Douglas Melamed likened their thesis within—an approach among multiple possible ones of integrating different subdisciplines of law—to one depiction among many of the cathedral.*3 To wit, the duo identified three rules for optimal regulation of different types of entitlement loss, all of which were already laid out in that title: property rules, liability rules and inalienability rules. Readers might be interested to know that legal academia has since churned out mountains of literature on other 'view[s] of the Cathedral',*4 although the full details are beyond the scope of this entry.

One view among many of Rouen Cathedral by Claude Monet

• How Can Calabresi and Melamed's Rules be Implemented?

An entitlement may entail rights such as possession of something in its intact form, control over it (in the blonde's case, her body), opportunities to reap benefits from it, and avoidance of it. States have to assign entitlements to prevent people from simply taking what they want by might.*5 An important consideration in this process, Calabresi and Melamed believe, is who can most cheaply minimise societal costs and maximise societal benefits.*6 Other material considerations are different parties' relative eases of trading,*7 resulting trading scenarios' relative amenabilities to regulation,*8 and collectively or paternalistically valued qualities like equality and other moral concerns,*9 in light of the fact that individuals will have to pay some price to acquire, contravene or circumvent out of necessity an entitlement they lack. The rules then come into play to safeguard entitlements, while enabling them to be traded for other things entitlement holders actually value more within limits demanded for the protection of those qualities. The desired end state is one where the goods of life are distributed such that no one can be rightfully made better off without making someone else worse off—or, in economics parlance, Pareto optimality.*10

Property rules

1. Scope of governance: Entitlements which relinquishments can be properly negotiated in advance
2. How they work: Non-entitled parties can take over or have a share of the entitlements at prices, monetary or non-monetary, entitlement holders agree to prior to the transactions.*11 Depending on how much entitlement holders value their entitlements vis-à-vis what non-entitled parties have to offer, these prices can be as low as nil. In contrast, non-entitled parties who help themselves to entitlements without entitlement holders' consent are (i) ordered, where deemed necessary, to restore / keep away from the entitlements (i.e. an injunction*12 ) and (ii) subject to harsh penalty costs—plausibly far exceeding prices entitlement holders would have given the nod to*13—imposed by the juridical system / society. 
3. Examples from the omnibus: Otis jailed for hugging a conscious woman without seeking her permission; Otis, after a fatal accident in a jurisdiction where the death penalty still exists, hanged for deliberately ramming into the SUV out of spite for the driver's gender; a heavy fine for unauthorised access of computer data

Liability rules

1. Scope of governance: Entitlements which relinquishments can hardly be negotiated properly in advance and/or which losses must not be charged too much for, so that there is a more desirable distribution of wealth or some other goods of life.*14 Barriers to open and fruitful negotiation, through which actual values attached to something successfully determine its acquisition/loss, include: difficulty of need anticipation, difficulty of exhaustive coverage, difficulty of communication, opportunistic entitlement holders holding out for higher prices,*15 and free riders among multiple non-entitled parties negotiating as a group.*16 Ideally, we would still want entitlement holders to retain their entitlements if they so wish and non-entitled parties to respect boundaries, but conflicting legitimate interests, exigencies and unintentional human error may necessitate catering for loss of such entitlements.
2. How they work: Non-entitled parties impair the entitlements at prices, monetary or non-monetary, the juridical system / society decides for entitlement holders.*17 These prices may be attempted approximations of the aforementioned actual values entitlement holders attach to their entitlements.*18
3. Examples from the omnibus: Otis ordered to pay damages for accidentally ramming into a vehicle owned by someone else, since it is infeasible for two strangers to negotiate beforehand how much one should pay another in the event of a car accident; a government compensating a landowner in exchange for taking over her property for a societally beneficial development project*19

Inalienability rules 

1. Scope of governance: Entitlements so important and/or uncompensable*20 in all or certain contexts they must not be encroached upon at all, with or without advance consent*21 
2. How they work: Non-entitled parties who help themselves to entitlements, especially without entitlement holders' consent, are (i) ordered, where deemed necessary, to restore / keep away from the entitlements (i.e. an injunction) and (ii) subject to harsh penalty costs—plausibly far exceeding prices entitlement holders would have given the nod to*22—imposed by the juridical system / society. 
3. Examples from the omnibus: Otis jailed for hugging a drunk woman, who is incapable of true consent; a prison sentence for sleeping with a minor, who is also deemed too mentally incompetent of true consent; a life sentence for killing a healthy person, who is not permitted to consent to her murder*23

Most entitlements, not only bodily and vehicular rights, can be safeguarded by different rules in different situations.*24

• Strengths of Calabresi and Melamed's View of the Cathedral

1. Rules for allocating and protecting entitlements are required to avoid a dystopian reality where the most powerful individuals gobble up all the goods of life in demand.*25
2. The heavier penalty costs property rules and inalienability rules tend to exact for the same entitlement loss, compared to liability rules, account for the dignitary loss an entitlement holder suffers when she is a specific target self-determination is denied to on purpose.*26 Processes are no less significant than outcomes.
3. The penalty costs charged by property and inalienability rules also make up for the probability that an entitlement robber will evade capture.*27
4. Those penalties additionally cover enforcement costs.*28
5. The stronger protection property and inalienability rules offer encourages entitlement holders to plan, invest in, and work hard with what they have, knowing that others cannot take away the fruits of their labour easily without their authorisation.*29
6. The label 'property' can be an imposing reminder of the sanctity of boundaries (interpersonal, professional, organisational, etc.) much-needed in a reality characterised by, on one hand, the giving way of social formalities to more pervasive casualness and, on the other, multiple spheres of life (e.g. work, family, hobbies) bleeding into and often interfering with one another as a result of technology and changing societal norms.
7. In taking price decisions out of the hands of entitlement holders, liability rules mitigate the risk of them profiteering from the helpless choices and mistakes of others.
8. Conversely, in taking price decisions out of the hands of non-entitled parties, liability rules mitigate the risk of them undercompensating entitlement holders. Together with the preceding strength, this justifies the denial of the unilateral setting of prices that remains readily achievable among entitlement holders and affected non-entitled parties when negotiation is barely achievable.
9. Outcomes under liability rules serve as feedback*30 that can be used to tweak a rule-entitlement arrangement. Under a liability rule, the volume of entitlement losses indicates non-entitled parties' demand for the activity (e.g. driving) leading to the losses at the price set while the volume of filings for compensation indicates, ideally, whether entitlement holders value enough the entitlement (e.g. an intact car) at the price set to go through the hassle of filing.
10. Other than simulating consensual transactions, liability rules can function as less heavy-handed means of curbing societally harmful activities connected to entitlement losses and stimulating societally beneficial activities connected to them while balancing the interests of entitlement holders. These are achieved by charging those performing the harmful activities prices greater than the market prices, but not so great as to amount to inalienability rules, and those performing the beneficial activities prices lower than the market prices.*31 For example, a government taking over a land for a project that would generate more economic value from it may pay the landowner less compensation than what she could have sold it for.*32
11. Expanded / more detailed renderings of the view of the Cathedral: Scholars over the decades have extensively discussed other merits*33 of the rules and suggested how the rules apply to social and economic problems as diverse as homelessness,*34 solar access,*35 and contract law.*36

• Vulnerable Spots

1. Calabresi and Melamed's distancing of their rule framework from 'might makes right' styles of social functioning belies the multidimensional nature of power and thus may cause us to overlook how (i) persuasive ideological justifications for entitlement allocation and rule choices embody the soft power of rulemaking elites and (ii) how such soft power thereby enshrines the elites' pre-existing tangible, economic and knowhow-based powers.
2. Paternalism and true collectivism are frequently in conflict with each other and with subjective experiences and personal liberty. This is not to say that overlaps and broadly acceptable compromises are always absent, though.
3. As with economics analyses in general, the rules work on the problematic assumption that people are rational thinkers. The temptation of instant gratification and overestimation of ability to elude detection and/or apprehension by the justice system, for example, could have led someone else in Otis' situation to make the self-destructive choice of hugging the blonde, time and again. Even so, one would trust the effectiveness of the rules in most individuals they govern when penalties are severe.
4. Rules stimulate rule-breaking. For at least a section of the populace, penalty costs may perversely boost the allure of non-consensual deprivation of entitlements, owing to the thrill factor, forbidden fruit image and hype of rebel cultures (as opposed to passion for the causes for rebellion themselves). To counter this tendency, two additional remedies are crucial: (i) cultivation of widespread empathy for the need of entitlement and (ii) calls for more thoughtful nuance, purposiveness and rationality in some rebel cultures.
5. The label 'property' devalues the human body, which Calabresi and Melamed also applied their property rule to,*37 when fellow interlocutors associate the term with conventional, commoditised property assets. Exacerbating this issue is the concept of giving up bodily entitlements in exchange for 'prices'/'costs'. In fact, bodily 'property' rules fly in the face of long-standing, even if inconsistent and challenged, traditions*38*39*40*41*42 rejecting recognition of property in the human body in Anglophone jurisprudence. To avoid undermining their credibility, proponents of such rights are well-advised to address these issues.
6. The rhetoric of liability rules, in a similar vein, turns obligations into (purely) commercial transactions in the minds of some non-entitled parties. And so, instead of reacclimatising himself to life behind the wheel under less hazardous road and weather conditions first, a long car-deprived Otis might, for instance, simply impose on other drivers heightened accident risks from his now subpar driving skills, reasoning to himself that he would just pay off any damage they sustain. Likewise, a party to a contract may see her unanticipated breach as a purchase option covered by awardable damages, even though the other party very much prefers her to keep to their agreement.
7. The feedback provided by liability rules is imprecise. Costs of justice access, including information barriers resulting in ignorance about the right to compensation, have to be sufficiently low to generate an acceptable sample size.  But even if that is already so, the prices of entitlement loss may have to be tweaked a number of times to arrive at one that is close enough to its actual worth, and in that process, the legal uncertainty, or rule uncertainty in general, generated would probably cause confusion and loss of faith in the authority.
8. It may be easy to forget that agreement to an entitlement transaction does not necessarily reflect relative valuations of an entitlement relinquishment, even if all parties are mentally competent at the time of the agreement. In other words, it is not always true that, in their acquiescence and only through their acquiescence, the entitlement holder values what the non-entitled party offers more than the entitlement and the latter values her need for the relinquishment more than what she needs to offer. For a start, to assume otherwise ignores the questions of (i) whether a non-entitled party possesses the requisite resources for meeting the value of an entitlement and (ii) whether an entitlement holder possesses the requisite resources that directly or indirectly allow her to keep the entitlement. We have to trust that states (or analogous administrators, for those of us borrowing the concept for other contexts), in spite of their lack of omniscience and omnipotence, have already allocated vital entitlements to the underprivileged. Moreover, even if the resources are theoretically available to a party, that party often faces the additional issue of prioritising competing needs. A man selling his infant most probably does not value children less than the buyer; he merely values them less than, say, his remaining family's immediate, profound want of food. Although Calabresi and Melamed did recognise early on in their paper both the variation of willingness to pay with wealth*43 and the tremendous difficulties states face in assessing everyone's desires and making up for all personal shortfalls,*44 the duo's subsequent silence on resource differences in their working examples for rule selection left gaping holes in those analyses.
9. The infant scenario brings us to the question of how pertinent the time dimension of negotiations is. The tacit assumption that mentally competent negotiators' agreement to an entitlement transaction reflects their relative valuations of an entitlement relinquishment—however long it takes to manifest that agreement—is extra problematic. It seems more intellectually honest to conclude that holdouts and free riders willing to wait indefinitely for conditions to turn in their favour do not truly value entitlement relinquishments more than the status quo. If their immediate dissent to personal receipt/payment of a price is to be overruled, it is for the other weighty considerations noted in the 'scope of governance' segment, not difficulty of negotiation.
10. Whether non-consensual damage to entitlements should always be coupled with administrators’ cost decisions is debatable. For example, if a holder of an alienable entitlement is perfectly happy to give up her entitlement for free even without being asked in advance, should her choice to forgive or open her entitlement to anyone be respected? Then again, we might still want to punish at least entitlement robbers ignorant of her mindset to maximally deter potential copycat robbers from taking chances and damaging the entitlements of holders who think differently. 
11. Imagine art-loving hermits believing Rouen Cathedral to be the fuzzy, furry monolith seemingly from some fantastical dimension under Monet's brush in a world with no photographs or writings! The duo themselves note that a generalised abstraction like theirs may constrain thinking, encouraging people to fit every phenomenon into the mould.*45
12. Various other views of the Cathedral: James Krier and Stewart Schwab, for example, argue that administrators too quick to deploy liability rules at the sight of negotiation difficulties deprive people of chances to learn to negotiate for themselves.*46

• Food for Thought

The divide between pricelessness and worthlessness is, in some dimensions, treacherously narrow. A refusal to price the priceless—be it not discussing inalienable bodily rights in economics terms, not stipulating fines for wrecking a house of infinite sentimental worth, not quantifying the opportunity costs and productive values of parents' care labour, or not setting aside enough of the national budget to reward quality, life-changing teaching—can condemn their survival. Instead, chances are, we can trust the cognitive sophistication of rule audiences, taking time to carefully disseminate the actually non-paradoxical message: various entitlements are authentically invaluable, irreplaceable non-commodities and it is only for the humanly tasks of giving form to and working with the immensity of their worth that we are assigning them finite, albeit woefully inaccurate, values. Part of this work entails prioritising and balancing different invaluable entitlements. In fact, one might think of money as an assigner of relative value, not absolute value.

To stay true to the message, administrators ought to pay heed to two lessons from the preceding sections. First, involuntary damage to an invaluable entitlement should not be framed as an option. Second, such damage should be involuntary on the part of the entitlement holder as well as the damaging, non-entitled party, in the sense that life would otherwise be insufferable to the non-entitled party. Road accidents being the way they are, Otis’ driving would always impose a risk on fellow drivers, however stellar and attentive a driver he is. Yet to bar all driving would be to severely curtail everyone’s mobility, drastically reducing access to essential supplies and economic opportunities.

A segment of society would fume: However great that immensity is, it has nothing to do with us, the unentitled; we are fleabags for keeping in line with a rule system that spoils the unabashedly 'entitled' and spares us only dregs. Yet this protest evinces, as many commentators have pointed out in comparable contexts, a similar 'sense of entitlement' and in fact often stems from an actual entitlement in democratic systems to speech and criticism. Whichever strata of a system people reside in, there is a risk of undercounting one's own entitlements and underestimating their values, diminishing pleasure yielded from them. Potentially underestimated too are unknowable futures, personal and societal alike. It is perhaps premature to condemn oneself as a loser worthy of only false entitlement relinquishments from (momentarily) mentally incompetent persons and acknowledge anyone nowhere visibly near the end of his life as a victor. Furthermore, rule-entitlement alignments are often in flux, open to change advocacy, however arduous, from even the deepest bellies of ghettoes. Protesters are already engaged in such advocacy. What they can finetune is their strategisation: it is less cognitively laborious to conceive of advocacy for changes to entitlements to end goals, but probably less physically and emotionally laborious and more egotistically reassuring in the long run to effect changes to entitlements to opportunities for self-improvement efforts, with which the case for being awarded an end goal becomes more persuasive to oneself and fellow sober negotiators.

Now, a significant segment of this segment did work hard all their lives, in which case other poignant areas of advocacy await their contribution: Do others have a clear, unprejudiced view of their efforts? How can an amount of effort demanded be reasonable yet not trivialising? What kinds of efforts should count? What makes the need for an entitlement so fundamental that assignment of it should not depend on effort in the first place? Why should a particular category of individuals relinquish particular entitlements for a person's sake when others are making the same effort, of perhaps universal value, and the person does not expect (i) those others to relinquish entitlements of that kind for her sake or (ii) other categories of individuals to relinquish entitlements of that kind? Clearly, these questions are first filters for oneself. The last most obviously invites one to be more flexible and transparent with herself about her idea of reciprocation. For instance, Otis might believe that he is entitled to physical intimacy with any attractive female as a reward for his familial contribution and, through his underpaying day job, societal contribution. He might even believe that, as a man of his build, his presence is the opposite gender's insurance against harm. But would heterosexual Otis accept a fireman's, helpful male passerby's or filthy-looking woman's entitlement to intimacy with him in exchange for extricating him from a burning vehicle? Would he want male colleagues he toil for to cuddle him? If his right to bodily autonomy is independent of anyone's objective merits, surely so is everyone else's. His bodily desires, on the other hand, can be dispelled through plenty of thought diversion methods that rely on no one: a thrill ride, a workout session, a heist comedy, a self-written sci-fi mystery epic, an online war strategy game, etc. Cathedrals, canvas and colourants abound for thinkers looking broadly.

• More Servings

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*1:Alan Riding, 'Monet's Fixation on the Rouen Cathedral' The New York Times (New York, 15 August 1994) 9.

*2:Fred S Kleiner, Gardner's Art through the Ages: The Western Perspective, vol 2 (13th edn, Wadsworth Cengage Learning 2010) 656.

*3:Guido Calabresi and A Douglas Melamed, 'Property Rules, Liability Rules, and Inalienability: One View of the Cathedral' (1972) 85 Harv L Rev 1089, 1089-90, fn 2.

*4:e.g. Lucian A Bebchuk, 'Property Rights and Liability Rules: The Ex Ante View of the Cathedral' (2001) 100 Mich L Rev 601; Jeanne L Schroeder, 'Three's a Crowd: A Feminist Critique of Calabresi and Melamed's One View of the Cathedral' (1999) 84 Cornell L Rev 394; Dale A Nance, 'Guidance Rules and Enforcement Rules: A Better View of the Cathedral' (1997) 83 Va L Rev 837; James E Krier and Stewart J Schwab, 'Property Rules and Liability Rules: The Cathedral in Another Light' (1995) 70 NYU L Rev 440; Andrew W Torrance and Bill Tomlinson, 'Property Rules, Liability Rules, and Patents: One Experimental View of the Cathedral' (2011) 14 Yale JL & Tech 138; Carol M Rose, 'The Shadow of The Cathedral' (1997)106 Yale L J 2175.

*5:Calabresi and Melamed, 1090-91.

*6:Calabresi and Melamed, 1096-97.

*7:Calabresi and Melamed, 1119.

*8:Calabresi and Melamed, 1120-21.

*9:Calabresi and Melamed, 1105.

*10:Calabresi and Melamed, 1094-95.

*11:Calabresi and Melamed, 1092.

*12:Calabresi and Melamed, 1105 and 1127 (references to enforcement of property rules through injunctions).

*13:This can be arguably inferred from Calabresi and Melamed's reasoning of a need for a penalty cost in excess of an entitlement's worth to deter wilful conversion of property rules into liability rules. See Calabresi and Melamed, 1126.

*14:Calabresi and Melamed, 1098 and 1110.

*15:Calabresi and Melamed, 1106-07.

*16:Calabresi and Melamed, 1107.

*17:Calabresi and Melamed, 1092.

*18:ibid.

*19:Calabresi and Melamed, 1093 and 1106-08.

*20:Calabresi and Melamed, 1111-14.

*21:Calabresi and Melamed, 1092-93.

*22:This can be analogously concluded from Calabresi and Melamed's reasoning of a need for a penalty cost in excess of an entitlement's worth to deter wilful conversion of property rules into liability rules. See Calabresi and Melamed, 1126.

*23:Guyora Binder, Criminal Law (Oxford University Press 2016) 4.

*24:Calabresi and Melamed, 1093.

*25:Calabresi and Melamed, 1090-91.

*26:Binder, 4 (comparing only property rules and liability rules).

*27:Calabresi and Melamed, 1125 (making the argument for property rules).

*28:Keith N Hylton, 'Economics of Criminal Procedure' in Francesco Parisi (ed), The Oxford Handbook of Law and Economics Volume III: Public Law and Legal Institutions (Oxford University Press 2017) 329.

*29:Rose, 2187 (for property rules only).

*30:Calabresi and Melamed, 1120.

*31:Guido Calabresi, 'A Broader View of the Cathedral: The Significance of the Liability Rule, Correcting a Misapprehension' (2014) 77 LCP 1, 8-9.

*32:ibid 10.

*33:e.g. Ian Ayres and Eric Talley, 'Solomonic Bargaining: Dividing a Legal Entitlement to Facilitate Coasean Trade' (1995) 104 Yale LJ 1027, 1044-45 (delineating how liability rules can compel individuals to reveal their true valuations of entitlements, relative to damages awardable, through consensual transactions on the side).

*34:Marc L Roark, 'Homelessness at the Cathedral' (2015) 80 Mo L Rev 53.

*35:Troy A Rule, 'Shadows on the Cathedral: Solar Access Laws in A Different Light' (2010) 2010 U Ill L Rev 851.

*36:Nuno Manuel Pinto Oliveira, 'Contract Law, Liability Rules, and Property Rules' (2013) 9 ERCL 327.

*37:Calabresi and Melamed, 1127 ('The thief or rapist, on the other hand, could have negotiated without undue expense (at least if the good was one which we allowed to be sold at all)').

*38:Remigius N Nwabueze, 'Biotechnology and the New Property Regime in Human Bodies and Body Parts' (2002) 24 Loy LA Int'l & Comp L Rev 19 (discussing English, American, Canadian and Australian laws).

*39:Neera Bhatia and James Tibballs, 'The Development of Property Rights over Cadaveric Tissues and Organs: Legal Obstructions to the Procurement of Organs in an 'Opt Out' System of Organ Donation in Australia and New Zealand' (2017) 27 NZULR 946.

*40:Muireann Quigley, 'Property in Human Biomaterials—Separating Persons and Things?' (2012) 32 Oxf J Leg Stud 659.

*41:P D G Skegg, 'Medical Uses of Corpses and the ‘No Property’ Rule' (1992) 32 Med Sci Law 311.

*42:Paul Matthews, 'Whose Body? People as Property' (1983) 36 CLP 193.

*43:Calabresi and Melamed, 1095.

*44:Calabresi and Melamed, 1099.

*45:Calabresi and Melamed, 1128.

*46:Krier and Schwab, 462-64.