The Institution of Private Ownership: Introductory Essays
48 Pages Posted: 15 Aug 2013 Last revised: 30 Aug 2013
Date Written: August 14, 2013
One of the appealing aspects of property writing today is the willingness of so many scholars to engage the field a whole, backing away from details and assessing the big picture. It is much-needed work given the importance of private ownership as a contemporary institution, culturally and politically as much as legally and economically.
We are the authors of one of the new casebooks in the field, Freyfogle & Karkkainen, Property Law: Power, Governance, and the Common Good (West/American Casebook Series 2012). As much (or more) than other casebooks it reflects this surge of scholarly interest in the institutional or big-picture side of private ownership. It does so in important part by featuring freestanding essays that identify and comment on foundational issues, exploring them at greater length than is possible in typical casebook notes. As a set, the essays cover what we view as the main institutional elements, ranging from property’s moral grounding and reasons for existence to the modes and most visible directions of on-going legal change. Many students find the essays especially engaging, particularly students with scholarly or critical leanings.
In this writing we have assembled the essays into a set, with revisions (and modest updates) so that they stand alone. We hope they might interest a broader range of readers, personally or for instructional use. We frame our essay topics in what might be termed progressive ways. That is, we present property as a human-constructed, evolving, morally complex social institution, variously beneficial to elements of society and communities, and we open the law of property -– all of it -– to reconsideration. At the same time, we highlight the benefits of legal stability and encourage caution in assuming that institutional change can substitute for individual and cultural reform. One aim is to help students appreciate the causes, modes, and consequences of (presumably) unending legal change.
Keywords: Property, philosophy of property, common property, natural resources, legal change, progressive property, public trust doctrine, John Locke, labor theory, personality theory, tragedy of commons, functions of property
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