The Idea of Property in Law

Abstract

This book vindicates the commonsense idea that the right to property is a right to things. Distinguishing between the ‘practice’ of property and the ‘practice’ of contract is essential for a proper understanding, but failure to do so is common. As the book shows, it mars both John Locke's and Georg Hegel's philosophies of property, and continues to contribute to confusion. It also obscures the central element of sharing and giving in the ownership of property, the importance of which has been generally neglected. Perhaps most controversially, the book argues that the justification of the right to property is not dependent on the justice of the reigning distribution of property — that is a question which concerns the justice of the economy (gift, command, market, or mixed) — that distributes all values, not just rights in property. The important ‘distributional’ question about property is this: to what values does the property practice apply? Why does it apply to castles and cars, books and bank balances, but not to our body parts and our labour, nor to our employment contracts and our sexuality? To address these issues the book develops a distinction between persons and our personality-rich relationships that cannot be objects of property, and ‘things’, both land and objects and personality-poor relationships like debts, which can.

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