Property and Justice

Property and Justice

Property and Justice

Property and Justice

Synopsis

Property is a legal and social institution governing the use of most things and the allocation of some items of social welfare. As an institution, property is a complex organizing idea. This work examines the legal and philosophical underpinnings of the concept of property and offers a new analytical framework for understanding property and justices.

Excerpt

People everywhere invoke 'justice' in political and ethical controversies and in criticizing and applying the law. Against that, two and a half millennia of speculative thought have yielded no agreement about what justice is. Indeed, in addition to diametrically opposed conceptions of justice, there are those who say that justice does not exist. They recommend us to close our ears to its every-day invocation, since it does and can have no objectively knowable meaning, and hence no bearing on our practical concerns. Rather, it is a cloak for naked promotion of the interests of particular individuals or groups.

Such disagreements and scepticism about justice are familiar enough. More surprisingly, there is no concensus, and there is also scepticism, about the concept of property. All societies have property institutions of one kind or another. We all make plans and enter into transactions which take for granted the blindingly obvious fact that property institutions exist. We also, from time to time, disagree on moral and political grounds about how property institutions ought to be designed and about how property should be allocated among us. Yet when speculative thought is brought to bear on the subject, it appears that the very idea of property is so malleable that, again, there is no agreement about what it is and, believe it or not, there are sceptics who deny that there is any such thing as property.

The concern of this book is strictly 'practical', in the ordinary, rather than the philosophic, sense of that term. Political and legal decisions have to be made about questions of property distribution and property-institutional design. In reaching them, the claims of 'justice' cannot be ignored. Property has to be confronted with justice. Given the diversity of understanding and scepticism about both concepts, I have been forced to go back to the drawing-board as to each.

In Part I of the book I attempt to set out the nature of property institutions. I take account of the complexities which are commonly papered over in purely philosophical appraisals of the subject, whilst at the same time abstracting from the dead weight of detail which is, inevitably, the practising lawyer's every-day concern. In this Part it has been necessary to rein in the tendency of the concept of property to balloon in such a way that disagreements about the justice or injustice of property would be without intelligible focus. In Part II I take as my starting-point a minimalist conception of justice from which we may begin to address the normative cogency of what I call 'property-specific justice reasons'. I have then gone on to quarry from the tradition of western political philosophy those claims about . . .

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