Property Law as the Infrastructure of Democracy

Abstract:     
It is commonly thought that if one is in favor of strong protection for property rights, liberty, and the free market, one must believe in a minimal state that limits "regulation." But if we pay attention to the history of property law, it becomes clear that all these things can only exist with a robust regulatory structure. Libertarian calls for small government fail to recognize that modern property rights came into existence because of laws that prohibited feudalism, slavery, caste status, and discriminatory barriers to entry to the marketplace. Modern statutes go beyond these foundational regulations to protect consumers by establishing minimum standards for market relationships. Property law (including consumer protection laws) functions as a private constitutional structure that shapes the contours of economic and social relationships; it is the infrastructure of democracy. Its core mission is to define the framework for a free and democratic society that treats each person with equal concern and respect.

This talk was the Fourth Wolf Family Lecture on the American Law of Real Property delivered April 4, 2011, at the University of Florida Fredric G. Levin College of Law and will be published in Powell on Real Property (Michael Allan Wolf ed., LexisNexis Matthew Bender).

Number of Pages in PDF File: 14

Keywords: property, regulation, jurisprudence, democracy, equality, liberty

Accepted Paper Series