Haim Abraham (University College London – Faculty of Laws) has posted No Man’s Property Is a Normative Island: On Property Law in the Society of Equals on SSRN. Here is the abstract:
Christopher Essert’s Property Law in the Society of Equals is a thought-provoking, rigorous, and eloquent manuscript that offers an explanation and justification for why the institution of property law must exist and include both private property and public property in some form. In doing so, the manuscript addresses some of the main critiques levied against private property, as well as pressing societal concerns, such as economic inequality, homelessness, and abuse of public power. Essert guides the readers through doctrinal and normative complexities masterfully, with clear and accessible language and metaphors, ensuring the manuscript’s significance and impact to a broad range of readers beyond property lawyers and private law philosophers.
This review focuses on three aspects of Essert’s arguments: the type of equality that is employed; what we can learn about reasonableness and ownership of private property from private nuisance; and the limits and requirements of a plausible positive community. I illustrate that each aspect has a degree of ambiguity, and offer an interpretation of the arguments that could resolve the potential challenges. To this end, I start in Section I with a brief gloss of the arguments advanced in Property Law in the Society of Equals. In Section II, I show that while Essert mostly relies on an account of formal equality for bipolar interactions between private individuals, he seems to use a more substantive account of equality for governing interactions between an individual and the public at large. I will argue that using both accounts in this way is, overall, consistent with and necessitated by the fundamental obligation that Essert is committed to—striving towards an ideal regime of equality between individuals. Section III turns to review the claim that private nuisance is a necessary doctrine that can concretize what it means to be a private property owner, noting that it is likely to hold true in a more qualified manner than that which is asserted by Essert. Lastly, in Section IV I rely on Essert’s concession that a non-pure positive community could be justified while adhering to a commitment to interpersonal equality to highlight the manuscript’s potential to challenge private property ownership.
Recommended.