The society of property

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Abstract

The basic question that arises in connection with the distinction between property and contract is, what accounts for the general scope that property rights and duties, unlike their contractual counterparts, share? The most typical theoretical approach to this question has so far been to emphasize certain extrinsic circumstances, such as transaction costs or the normative priority of protecting property over contract rights. But the problem with this approach is that it implies that the source of the difference (whatever it is) does not originate in either property or contract but rather lies outside both (for instance, in the costs of making and carrying out transactions concerning external objects). In that, it fails to consider whether the general scope of property rights and duties is, in fact, a side effect of the special structure of property (vis-à-vis contract). On the account I shall develop, property is a framework of coordination in which participants approach the resolution of their competing claims (such as for use of and access to an object) together. In this way, property turns coordination itself into a form of respectful recognition among persons, quite apart from the functions it occasionally serves (such as promoting efficiency or sustaining freedom). This formal way of distinguishing between property and contract lies at the centre of the characterization of the rights and the duties in question that I shall pursue in these pages. Moreover, and perhaps more dramatically, this characterization provides the necessary normative resources to elaborate on their normativity: I shall argue that property, unlike contract, expresses the categorical value of regarding others as free and equal persons (at least, in the sphere of action onto which property maps).

Original languageEnglish
Pages (from-to)563-607
Number of pages45
JournalUniversity of Toronto Law Journal
Volume62
Issue number4
DOIs
StatePublished - 1 Jan 2012

Keywords

  • contract
  • formalism vs functionalism
  • liberal solidarity
  • private law theory
  • property
  • rights in rem

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