Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost because it renders invisible many new forms of property.
This essay suggests that legal scholarship, particularly its law and – economics branch, relies on an outdated and overly simplistic image of private property, an understanding that acknowledges just one of the many faces of private property. I will focus here on three faces – first, the possibility of creating a new ideal type of property; second, synthesizing existing ideal types; and third, redefining our core types – that may render private property a more tractable term, one better designed to identify and support innovation at the frontiers of social relations.
Law | Property Law and Real Estate
Michael A. Heller,
Critical Approaches to Property Institutions,
Or. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2209