Subsidiarity and the Structure of Property Law

University of Toronto Law Journal, Vol 74:2, Forthcoming

45 Pages Posted: 27 Apr 2023 Last revised: 10 May 2023

See all articles by Malcolm Lavoie

Malcolm Lavoie

University of Alberta Faculty of Law

Date Written: April 26, 2023

Abstract

This article provides an account of the structure of property law based on the principle of subsidiarity. That principle holds that more centralized organizations, including governments, should fulfill a subsidiary role in relation to the individuals and groups of which they are comprised. While subsidiarity has been highly influential in the areas of public law, constitutional law, and international law, its relevance to property law has been underappreciated. Property rights distribute decision-making authority over resources to non-state parties. This promotes a number of interrelated goods associated with subsidiarity, including: the qualitatively distinct contributions made by individuals and groups to the common good, the instrumental benefits of decentralized decision-making, the intrinsic benefits of involvement in actions and decisions affecting oneself, and the development of virtues. However, the principle of subsidiarity also suggests important roles for public authorities, including assuring an appropriate distribution of resources in society and intervening where the private authority of owners fails to uphold the common good. In this respect, subsidiarity offers a distinctive understanding of the divide between public and private law. Private law doctrine appropriately provides owners with a significant sphere of presumptive authority, yet this is subject to broad powers of public authorities to alter the baseline where in their judgment the common good requires it. This article argues that the concept of subsidiarity can help to bridge the divide between progressive property theory and theoretical approaches that emphasize the authority of owners. It can also contribute to an understanding of the concept of property, public access rights to private property, property-based community governance, and legal protections for property rights.

Keywords: Property law, subsidiarity, legal theory, private law

Suggested Citation

Lavoie, Malcolm, Subsidiarity and the Structure of Property Law (April 26, 2023). University of Toronto Law Journal, Vol 74:2, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4430459

Malcolm Lavoie (Contact Author)

University of Alberta Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

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