Property and the Rule of Law
52 Pages Posted: 17 May 2012
Date Written: January 1, 2012
This paper offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law — does the rule of law only include formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? Jeremy Waldron and Richard Epstein have recently defended each of these positions, respectively. By focusing on the nature of common law reasoning, I wish to question the form/substance dichotomy that frames this debate and show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common law reasoning and, as such, play a large role in shaping the substantive content of common law property rights. In other words, once property rights are understood as the result of a practice of reasoning that routinely invokes rule of law principles, the standard form/substance dichotomy is untenable. In short, there is no “substance” in the common law of property that is not already informed by “form.” Understanding this has implications beyond the relationship between property law and the rule of law for it indicates an important defect in contemporary property theory more generally. My claim is that property theory has focused too much on the concept of, and justifications for, ownership and ignored the role that rule of law principles have played in shaping substantive property doctrine. Theories of ownership risk going astray if they seek to account for property doctrine without first appreciating the way that form influences substance. Moreover, theories of legal reasoning and justification risk going astray if they do not appreciate the role that rule of law principles play in providing important standards of legal justification and instead mistake these elements for either principles of political morality or references to broad policy considerations.
Keywords: property, rule of law, legal reasoning, common law
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