The Human Right to Private Property

18 Theoretical Inquiries in Law (2017 Forthcoming)

25 Pages Posted: 30 Jun 2015 Last revised: 3 Nov 2016

See all articles by Hanoch Dagan

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Date Written: June 29, 2015

Abstract

For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay we argue, negatively, that the prevailing (libertarian) understanding of private property cannot plausibly face this demanding standard and, affirmatively, develop a liberal conception which has a much better prospect of facing property’s justificatory challenge. Private property, on our account, is an empowering device, which is crucial both to people’s personal autonomy (understood in terms of self-determination) and to their relational equality (understood in terms of reciprocal respect and recognition among persons). The liberal conception of the human right to property has both vertical and horizontal significance — it implies respect from both the public authority and other individuals — which means that it is thoroughly political but not necessarily statist. Our account generates important implications, both domestic and transnational ones. Domestically it implies that whereas some property rights should be subject to strong constitutional protection, state law should facilitate other types of private and non-private property institutions, and these property institutions may well be subject to non-owners claims to access and, more broadly, to being treated respectfully. Furthermore, our conception of the human right to property requires that everyone must have the unusual authority typical to full-blown private ownership. Transnationally, our analysis highlights a freestanding dimension of relational justice, which is relevant across borders even given that our distributive obligations are statist. This injunction of relational justice in transnational interactions questions the adequacy of the current state of the law, according to which these interactions are mainly governed by choice of law rules that conceptualize them as wholly subsumed under the capacities of the parties as citizens of their respective polities.

Suggested Citation

Dagan, Hanoch and Dorfman, Avihay, The Human Right to Private Property (June 29, 2015). 18 Theoretical Inquiries in Law (2017 Forthcoming). Available at SSRN: https://ssrn.com/abstract=2624428 or http://dx.doi.org/10.2139/ssrn.2624428

Hanoch Dagan (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
+972 3 640 7302 (Phone)

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

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