Property and Liberty
Eric T. Freyfogle
University of Illinois College of Law
March 1, 2010
Harvard Environmental Law Review 34:1 (2010), 75-118
Private property and liberty, particularly in the case of privately owned land, are intertwined more complexly than we commonly realize. When we study how private property operates in daily life, looking at the full array of land-use conflicts, what we see is that private rights backed by state power are as apt to restrict liberty as they are to promote it. To regain the complexity of the situation in human-inhabited landscapes is to see why we cannot start with the idea of liberty, or with any conception of natural rights, and produce a working, morally justified system of private property. To produce such a system, we need to start instead in a much different place, looking to the various ways that private property can foster the common good. Ultimately, lawmakers crafting and updating a scheme of property must choose among the many types of liberty that they want to secure, based on their assessment of the common good. Only after they have done that, choosing among the options, can we see how private property promotes liberty. Liberty, in short, is the product of a private property regime, not a point of beginning to craft such a regime.
Number of Pages in PDF File: 44Accepted Paper Series
Date posted: October 27, 2007 ; Last revised: July 25, 2014
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