Things Fall Apart: The Illegitimacy of Property Rights in the Context of Past Property Theft
Illinois Institute of Technology - Chicago-Kent College of Law; Faculty Fellow at the American Bar Foundation
February 22, 2010
Arizona Law Review, Vol. 51, No. 4, 2009
Past property theft is a volatile political issue that has threatened to destabilize many nascent democracies. How does a state avoid present-day property-related disobedience when past property theft causes a significant number of people to believe that the current property distribution is illegitimate? To explore this question, I first define legitimacy and past property theft relying on empirical understandings of the concepts. Second, I establish the relationship between a highly unequal property distribution that the general population views as illegitimate, and property-related disobedience. Third, I describe the three ways a state can achieve stability when faced with an illegitimate property distribution: by using its coercive powers, by attempting to change people's beliefs about the legitimacy of the property distribution, or by enacting a Legitimacy Enhancing Compensation Program (LECP), which strengthens the average citizen's belief that she ought to comply with the law. Fourth, I develop the legitimacy deficit model, which is a rational choice model that suggests when a state should enact a LECP to avoid property-related disobedience, which can devolve into broader instability. To best promote long-term stability, I argue that states should, at the very least, enact a LECP as the cost of illegitimacy begins to outweigh the cost of compensation. Lastly, since many of the model's relevant costs are subjective, I suggest a process states should use to determine and weigh the costs. In sum, the Article is intended to spark a debate about how compensation for past property theft can keep things from falling apart.
Number of Pages in PDF File: 23
Date posted: September 3, 2008 ; Last revised: February 23, 2010