Property Theory and Contemporary Marxism

Abstract

This Article stands at the crossroads of political theory and property theory. It engages with contemporary Marxists as well as political liberals. As to property, it deals with (1) property as a bundle of rights, (2) egalitarian views of property, and the claim that there should be almost no private property at all. Despite the emphasis on theory, the Article is punctuated with concrete examples that have consequences for the current and future state of property law.

Michael Hardt and Antonio Negri, well-known and prolific political theorists, advance a theory that moves well beyond both capitalist and socialist property. Their theory, articulated over four books between 2000 and 2017, proposes an arrangement, called the common, that so maximizes sharing and equal access as to be almost a nonproperty system. From these dizzying heights, Hardt and Negri show unexpected interest in the idea of property as a bundle of rights.

This Article contends that Hardt and Negri’s work, though admirable in its ambition, is insensitive to the variety of bundle theories and the opposition to them. They perceive, correctly, that bundle theories involve plural social interests and relations. But their criticisms of critical legal studies and progressive property theory are often unpersuasive, as are their discussions of property in relation to sovereignty and coercion. This Article contends also that Hardt and Negri’s grand project of the common cannot succeed without a careful description of the common, rigorous argument in favor of the common, and the roles of domination and non-domination in a sound critique of property.

Keywords: Bundle theories of property, Coercion, Domination and Non-Domination, Sovereignty, Equality and freedom, Contemporary Marxism, Homelessness, Antonio Negri