Property As a Legal Construct (or, Why Philosophers, Social Scientists, and Lawyers Think Differently About Property Rights)
Abstract: Property is a powerful concept. It features prominently in academic and public discourse. But it is also a source of ongoing confusion. While some of this disarray may be attributed to the success of “disintegrative” normative agendas, much of it is the result of a methodological and conceptual disconnect both within and among different fields of study. Aimed at narrowing this gap, the paper analyzes the transformation of property from a moral and social concept into a legal construct. It seeks not to develop a historical or intellectual account of such an evolution, but to analyze the institutional and structural features of property once it is incorporated into the legal realm. The paper identifies the unique jurisprudential ingredients of a system of rules by which society allocates, governs, and enforces rights and duties among persons in relation to resources. It examines the work of decisionmaking institutions entrusted with the task of designing property norms over time. Clarifying the institutional and structural attributes of property does not require, however, adhering to a uniform body of norms or to a single set of underlying values. Illuminating the construction of property allows rather for a better informed debate about the socially-desirable content of property rights.
