Liberal Property and the Power of Law

Abstract

In A Liberal Theory of Property1 I argue that property is one of society’s major power-conferring institutions. Property confers upon people some measure of private authority over things (both tangible and intangible). This temporallyextended private authority dramatically augments people’s ability to plan and carry out meaningful projects, either on their own or with the cooperation of others. Property’s empowerment, in other words, enhances people’s selfdetermination. But as such property also disables (other) people and renders them vulnerable to owners’ authority. Therefore, to be (and remain) legitimate, property requires constant vigilance. A genuinely liberal property must expand people’s opportunities for individual and collective self-determination while carefully restricting their options of interpersonal domination. Property cannot carry this justificatory burden on its own; its legitimacy is dependent upon a background regime that guarantees to everyone the material, social, and intellectual preconditions of self-determination. But the significance of property to self-determination implies that such a background regime—crucial as it is—is not sufficient. To properly meet property’s legitimacy challenge, law must ensure that property’s animating principles and the most fundamental contours of its architecture follow its autonomy-enhancing telos. Hence, the three pillars of liberal property—the features that distinguish it from property simpliciter: