Foundations of Property

Abstract

There are three essential questions for property theory: What is property? Which property? Why property? The 'what-question' looks after a structural conceptual core of property, which was for instance strongly affirmed by natural law theories and is denied by most conventionalist theories, which regard property as a mere bundle of legal rights. The 'which-question' is about possible categorical types of property: private, public and common. The political battle between capitalist and communist economic systems in the last century was very much about the prevalence of private or state property. The final 'why-question' addresses the normative justification or the reasons of property. As a social power relation any form of property is in some sense political and needs justification. The reasons of property justify its legal scope and limits. On a more practical level any judicial interpretation of property law depends on and varies with its assumed underlying reasons. Any adopted theoretical reasons of property have direct practical impacts. The normative background theory decides which human interests are relevant to the allocation of property rights.