The Property Gap: Private Ownership, Trespass, and the Form/Function Mismatch

Abstract:     
One of the most acute charges against private property begins with the observation that ownership generates a trespassory duty of exclusion that far exceeds what a commitment to values such as freedom and well-being could possibly require. According to this observation, there exits a mismatch — in particular, an analytical gulf — between the form of protecting ownership and the functions that this protection may serve. In these pages, I shall develop a novel account of ownership’s normativity, maintaining that, apart from the functions it may render whatever external values are deemed appropriate, the form of ownership is in itself a source of value, in virtue of the society it may engender between free and equal persons. Accordingly, the so-called arbitrary gap between the form and the function of ownership need not plague private ownership, because the functions served by ownership do not exhaust the explanation of its good. And while there is no reason to deny that ownership is partly assessed by reference to the functions it promotes, I shall insist that there is a formal core to property, and that it is a distinctively social one even in the most isolated case of trespass to property.

Number of Pages in PDF File: 35

Keywords: property theory, ownership, trespass, equality, form and function in property law

JEL Classification: K11

working papers series