Morris Cohen’s classic essay, Property and Sovereignty, correctly discerned that political sovereignty and private property are alternative forms of government. Where it failed was in suggesting that the choice between these modes of governance is a matter of dialing one up and the other down. The relationship between political sovereignty and property is complex, and varies depending on the audience of property we have in view. With respect to some audiences – strangers and transactors – those who favor a strong system of property will want to enlist a generous measure of assistance from the political sovereign. With respect to other audience – neighbors and sharers – those who want a robust property system are more likely to want the powers of the political sovereign to be held in check. Cohen was thus right that the political order and private property are both forms of power over people. But the exact mix of these two regimes is anything but simple or unidimensional.
Law and Politics | Property Law and Real Estate
Thomas W. Merrill,
Property and Sovereignty, Information and Audience,
Theoretical Inq. L.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3204