Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity

18 Pages Posted: 10 Apr 2010 Last revised: 21 Apr 2010

Joseph William Singer

Harvard Law School

Abstract

First possession is said to be the root of title but the first possession theory suffers from two major defects. First, land titles in the United States originate in acts of conquest, and because conquest denies the rights of first possessors, land titles in the U.S. do not have a just origin. We should recognize the unjust origins of our land titles and recognize that the democratic way to deal with the legacies of conquest is to refuse to engage in further acts of conquest. This requires recognizing the pre-existing sovereignty and persisting property rights of Indian nations. Second, first possession is justified only if others have equal opportunities to acquire property. The equal opportunity principle is not only one that is crucial to justifying and limiting the historical rights of first possessors but constitutes a core moral principle that must be satisfied in each generation. Property rights are therefore justified today only if they are defined and regulated in a manner consistent with the norms that define a free and democratic society which treats each person with equal concern and respect. Property has legitimate origins not in first possession or conquest but in the practice of democracy and the ideal of equal opportunity. This does not mean that possession is irrelevant; it means that its moral significance must be judged in light of the democratic ideal of equal opportunity.

Suggested Citation

Singer, Joseph William, Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity. Indiana Law Journal, Forthcoming; Harvard Public Law Working Paper No. 10-28. Available at SSRN: https://ssrn.com/abstract=1587363

Joseph W. Singer (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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