Reinterpreting Property

Margaret Jane Radin

Language: English

Pages: 278

ISBN: 0226702286

Format: PDF / Kindle (mobi) / ePub

This collection of essays by one of the country's leading property theorists revitalizes the liberal personality theory of property.

Departing from traditional libertarian and economic theories of property, Margaret Jane Radin argues that the law should take into account nonmonetary personal value attached to property—and that some things, such as bodily integrity, are so personal they should not be considered property at all. Gathered here are pieces ranging from Radin's classic early essay on property and personhood to her recent works on governmental "taking" of private property.

Margaret Jane Radin is professor of law at Stanford University. She is the author of over twenty-five articles on legal and political theory.

In Pursuit: Of Happiness and Good Government

When the People Speak: Deliberative Democracy and Public Consultation

Aristotle: A Very Short Introduction (Very Short Introductions)

To Our Friends

The Book of Isaiah: Personal Impressions of Isaiah Berlin





















In other words, here as elsewhere in the law, we should recognize the inescapably pragmatic nature of the enterprise. S I X Government Interests and Talungs: Cultural Commitments of Property and the Role of Political Theory With the coalescence of a conservative Supreme Court, the level of “compellingness” of governmental interests needed to validate curtailment of private property rights has seemed to escalate in some cases. Whether or not an increased burden on the government is justified is an important question in constitutional property jurisprudence, but so are some related questions that are less often explicitly discussed.

Are not different in kind from permanent As a formal matter, this statement is dictum for the present The Liberal Conception of Property 127 case, because the courts had not yet passed on the church’s talung claim. But it seems destined to come back as holding. Does the First English case herald a turn toward more rigid constitutional protection of the liberal indicia of property? One thing to be observed is that, from the viewpoint of previous substantive law, if the decision finding invalidation of the offending ordinance to be a constitutionally inadequate remedy rests on the per se rule against physical occupation, it seems to harbor a logical error.

Still, communities too may die of natural causes, so that not even a communitarian-based justification is necessarily permanent in principle. Assuming that community may be preserved when it exists, at least where the group affirms through local political action like rent control that it seeks continuity, there arises the specific question (2) of when a rent-controlled jurisdiction is in fact such a community. Without a more well-developed theory of community, it is not possible to outline the indicia of community.

The advantage of Lockean (and Nozicluan) natural rights theory is that it seems proof against noncontractual redi~tribution. ~~ The disadvantage is that it cannot account for adverse possession, which it appears the h c t i o n i n g legal system-the enforcer of those “absolute” entitlements-cannot do without. 32 Hence Epstein’s tension. Does he intend to defend a pluralist metaethic? (Are absolute natural rights somehow involved in a paradoxical coexistence with utility maximization as the sole good?

In the case of the bill, we (under whatever political theory we hold) “know” something about the needs of the polity, and we also know that legislatures “intend” to serve the needs of the polity, so we look for the most obvious of those needs that can be seen as the end for which the bill can be seen as a rational means. We know that legislatures “intend” to serve the needs of the polity because that is what our theory of democracy tells us they are for. Moreover, this attribution of appropriate intent is reinforced (if we are judges) by the aspect of our traditional theory of democracy-the separation of powers-that tells us not to question the activities of legislative entities unless something about the situation forces us to.

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