The Public Nature of Private Property
James Penner and Michael Otsuka (eds) Property Theory: Legal and Political Perspectives (2018)
19 Pages Posted: 18 Dec 2018
Date Written: 2018
This paper argues against the view that corrective justice provides the form of private law while distributive justice provides the form of public law. More primary than the forms of justice is the form of law. Law is inherently public. The basic publicness of law can be expressed in many different ways, from the “omnilateral” perspective discussed by Kant to the way in which the rule of law ensures that law is an instrument of public power rather than private domination. Because law is public it also aims at justice and the common good. While this does not mean that law is intrinsically concerned with any particular form of justice, it does mean that law is concerned with avoiding injustice.
Using this framework, I draw several implications for property law. First, I argue that there is a formal structure to private property but that this is best understood through the idea of law and omnilaterality rather than through corrective justice. Ownership is an omnilateral relation of each to each rather than a bilateral relation. Omnilaterality is more helpful in illuminating the structure of private property than the idea of corrective justice. It does so in relation to basic doctrinal features such as the law’s deep concern for security of possession as a concern for civil peace and public order as well as the basic features of the generality and impersonality of ownership. It also does so in relation to the central role that statutes play in defining key aspects of property law.
Second, this form of law rather than of justice can help us understand the role that distributive justice can play in relation to private law adjudication. Rather than an alien intrusion into the terrain of a very different form of justice, some of the basic concerns of distributive justice can find a home within adjudication in one of several ways. Because the law is concerned with avoiding injustice, which includes when the law is used as a tool of private domination, courts can legitimately seek to prevent the law from being used to exploit a pre-existing state of inequality. Another way is when courts seek to harmonize private law adjudication with “public policy” concerns as articulated in legislation or other sufficiently public documents. To say so does not unravel all claims to an “inner” perspective regarding private law in favour of functionalism, as the corrective justice account might imply, but it does call into question claims of the autonomy of private law. This is because it rejects the dichotomy between corrective justice and distributive justice as a map for “private” and “public” law and instead focuses on “law” as what unites both and is primary.
Keywords: property, private law, ownership, corrective justice, distributive justice, rule of law
JEL Classification: K10, K11
Suggested Citation: Suggested Citation