The (Practical) Meaning of Property
Willamette University - College of Law
February 16, 2010
Willamette Law Review, Vol. 46, No. 2, 2009
The paper argues that defining property functionally – as a flexible tool for implementing all manner of social decisions allocating control over available resources rather than in terms of fixed attributes or outcomes – substantially clarifies related public policy debate. The approach reveals we should reject characterizations of property as “good or bad” or as a “yes-or-no” proposition to which we react as well as the assumption that those with whom we disagree about its proper deployment are fools badly in need of enlightenment, or worse. These false dichotomies distract us from the core difficulty in property debate – our honestly and strongly held but conflicting beliefs regarding what constitute “just” resource control outcomes; a disagreement we should acknowledge cannot be fully resolved by reason, much less passion. Finally, the functional approach keeps us resolutely focused on the practical effects of our respective normative positions and, in particular, on the consequences if the resulting property rules fail to adequately “deliver the goods” to all concerned. When a society’s property law does not produce “enough and good enough for all” those suffering the adverse effects must ultimately abandon the joint enterprise, a process history shows to be both unpleasant and unpredictable regarding winners and losers (if those terms can be said to apply at all). This practical distributional inquiry does not (and cannot) mandate individual or group action, but it does merit serious consideration every time we find ourselves debating how “best” to use property law to allocate control over increasingly scarce and contested resources.
Number of Pages in PDF File: 60
Date posted: April 12, 2010