The Idea of Property: Its Meaning and Power

Abstract

Legal scholars and philosophers have long been engaged in what has been called ‘the pursuit of the holy grail of property’ — the secret of the internal structure of property in law. Attempts to capture the idea of property have encountered two fundamental problems. First, it has been notoriously difficult to advance beyond the observation that property involves ‘ownership’ of ‘things’, with the incidents of ownership and the list of things owned an essentially descriptive task. Second, it is difficult to explain the wildly inconsistent power that property rights — even when identified — seem to enjoy. This book advances our understanding of what property is, as an idea, and the power that claimed property rights should have against competing public interests. There is, the author argues, a deeper analytical structure of the idea of property that we can uncover, and — as a result of that discovery — deeper reasons that we can find for property's variable power. It is not a random or unprincipled event that property generally protects in cases involving land titles or patent claims, and fails to protect in cases involving environmental regulation or redistributive taxation. The author argues that these results are driven — indeed, predetermined — by the nature of property, as an idea, and the conflicts of that idea with competing public interests. The implications of this book are far-reaching. It explains and justifies on new grounds why some property claims are traditionally powerful in law, and others not.

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