Labor, Exclusion, and Flourishing in Property Law
81 Pages Posted: 27 Sep 2015 Last revised: 14 Dec 2017
Date Written: October 22, 2016
This Article presents a natural rights justification for property rights in a theory called “productive labor theory.” Productive labor theory sets forth a Lockean, labor-based case for property. It links property to human interests in flourishing — specifically in interests in using ownable resources to produce constituent elements of survival or rational improvement. On this foundation, “labor” means intelligent and purposeful activity producing goods contributing to survival or rational improvement.
This Article presents productive labor theory as an alternative to the two families of normative theories that currently loom large in contemporary property scholarship — economic theories of exclusion, and progressive theories. Each of these theory-families unsettles property in an important respect; productive labor theory shores up each of the foundations unsettled by exclusion and progressive theories. Like progressive theories, productive labor theory links property on a satisfying moral foundation, namely human flourishing. Unlike progressive theories, productive labor theory doesn’t denigrate or undermine the role that exclusive control plays in property. Like leading economic theories, productive labor theory justifies strong rights of exclusive control and possession. Yet it avoids standard criticisms about normative foundations of law and economic analysis, and it identifies moral boundaries within which efficiency analyses might be normatively defensible.
The Article illustrates using: the prima facie case for trespass to land; the common law privilege for necessity and the defense for adverse possession; Allemansrätt and statutory rights to roam; state and local landmark schemes (as exemplified in Penn Central Transportation Co. v. New York City); and regulatory schemes authorizing the use of eminent domain to condemn and reassign private land for commercial redevelopment (as exemplified in Kelo v. City of New London).
Keywords: adverse possession, Allemansratt, blight, closed range, development, easement, eminent domain, grazing, historic, hold out, hunting, information cost, Kelo, Locke, landmark, natural law, natural right, necessity, open range, Penn Central, Posner, preservation, roam, subjective value, trespass
JEL Classification: K11
Suggested Citation: Suggested Citation