Document Type

Article

Comments

Published in William and Mary Law Review, vol. 48, no. 5 (April 2007).

Abstract

Entirely apart from the substantive justification for existing private property rights, there are several reasons why property is, unavoidably, a morally uncomfortable subject.

First, legal property rights are and must be the products of determinate legal rules. As such, they inevitably will diverge in some of their applications from the moral principles that support them.

Second, property rights suffer, more than other legal rights, from problems of transition. Most or all justifications for private property envisage secure rights on which people can and will rely. As a result, there may be genuine moral value in the preservation of rights that were not morally justifiable at their point of origin.

Finally, property rights expose fundamental conflicts among the different conceptions of justice - distributive, corrective, and retributive justice - that guide our system of law.

It follows that even if private property rights are in fact morally justified, they are likely to generate moral unease.

Date of Authorship for this Version

4-2007