Document Type

Article

Publication Date

2013

Keywords

Property, Human flourishing, Obligation, Ownership, Possession

Disciplines

Law and Economics | Law and Society | Property Law and Real Estate

Abstract

Private property ordinarily triggers notions of individual rights, not social obligations. The core image of property rights, in the minds of most people, is that the owner has a right to exclude others and owes no further obligation to them. That image is highly misleading. Property owners owe far more responsibilities to others, both owners and non-owners, than the conventional imagery of property rights suggests. Property rights are inherently relational, and because of this characteristic, owners necessarily owe obligations to others. But the responsibility, or obligation, dimension of private ownership has been sorely under-theorised. Inherent in the concept of ownership is an implicit norm that might be called the social-obligation norm. This norm captures the various obligations that owners owe to others, specifically, to certain members of the various communities to which they belong. The moral foundation of this norm is human flourishing. As a moral and legal value human flourishing differs importantly from welfare as that term is commonly used today by economists and legal analysts. The article will explain the differences and how the obligations of ownership develop from human flourishing. It will then illustrate the theory with an example, access to private beaches.

Publication Citation

Published in: Hong Kong Law Journal, Vol. 43, Part 2 (2013).