The Normativity of the Private Ownership Form

Avihay Dorfman*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

One of the most acute charges against private property observes that ownership generates a trespassory duty of exclusion that far exceeds the requirements of a commitment to values such as freedom and well-being, and accordingly there exists an analytical mismatch between the form of protecting ownership and the functions that this protection may serve. This article develops a novel account of ownership's normativity, maintaining that, apart from the functions it may render to external values, the form of ownership is in itself a source of value, in virtue of the society it may engender between free and equal persons. Any gap between the form and the function of ownership need not plague private ownership, because the functions of ownership do not exhaust the explanation of its good. The formal core of private property is a distinctively social one, even in the most isolated case of trespass to property.

Original languageEnglish
Pages (from-to)981-1009
Number of pages29
JournalModern Law Review
Volume75
Issue number6
DOIs
StatePublished - Nov 2012

Keywords

  • Equality
  • Form/Function in Property Law
  • Ownership
  • Property
  • Trespass

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