The Normativity of the Private Ownership Form

29 Pages Posted: 3 Nov 2012

See all articles by Avihay Dorfman

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Date Written: November 2012

Abstract

One of the most acute charges against private property observes that ownership generates a trespassory duty of exclusion that far exceeds the requirements of a commitment to values such as freedom and well‐being, and accordingly there exists an analytical mismatch between the form of protecting ownership and the functions that this protection may serve. This article develops a novel account of ownership's normativity, maintaining that, apart from the functions it may render to external values, the form of ownership is in itself a source of value, in virtue of the society it may engender between free and equal persons. Any gap between the form and the function of ownership need not plague private ownership, because the functions of ownership do not exhaust the explanation of its good. The formal core of private property is a distinctively social one, even in the most isolated case of trespass to property.

Keywords: Property, Trespass, Ownership, Equality, Form/Function in Property Law

Suggested Citation

Dorfman, Avihay, The Normativity of the Private Ownership Form (November 2012). The Modern Law Review, Vol. 75, Issue 6, pp. 981-1009, 2012, Available at SSRN: https://ssrn.com/abstract=2170234 or http://dx.doi.org/10.1111/j.1468-2230.2012.00934.x

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

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