James Y. Stern (William & Mary Law School) has posted The Primacy of Equality & The Nature of Things in Jurisprudence, vol. 16, issue 4, 2025, on SSRN. Here is the abstract:
This article examines the relationship of property and equality, in the context of Christopher Essert’s provocative claim that private property is not merely compatible with equality but required and justified by it. In Essert’s account, property faces a fundamental egalitarian challenge not because of unequal distributions of propertized goods but because of the authority of any individual owner over all others, including others who have much more. That challenge, he argues, is overcome because private property—a system of “yours” and “mine”—is a necessary institution in any “society of equals,” for it alone enables individuals to relate to one another on non-hierarchical terms. In response, the article challenges both the diagnosis and the ambition of this account. The essence of the challenge Essert identifies lies not in inequality but contingency: the need to explain why this person should own this thing. Framing this as an egalitarian problem obscures the special justificatory challenge property faces in comparison with other interpersonal rights. The article further questions whether the absence of property would in fact produce objectionable forms of hierarchy. Property, it maintains, is not strictly necessary to establish a society of equals, but an appropriately egalitarian property system is preferable to other egalitarian structures for reasons not directly connected with equality, such as clarity, stability, and productivity. At the same time, property has important egalitarian dimensions, which Essert’s project helps to illuminate. Property structures social interaction through reciprocal and impersonal rights, facilitates cooperation across diverse populations, promotes material prosperity, and can serve to check domination by both private and public actors. These features make property compatible with, and often supportive of, egalitarian aims, even if they do not establish equality as property’s sole or primary justification. A more pluralistic account that recognizes both egalitarian and non-egalitarian aspects better captures property’s social function and its liberal promise. The article concludes with some broader questions about the privileged role of equality in academic discourse.
Recommended.
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