§ 2.01 Why R ecognize Private Property? [11-12]

 

What is the justification for private property?  The answer to this question is crucial because the justification for private property must necessarily affect the substance of property law. American property law is based on a subtle blend of different—and somewhat conflicting—theories.

 

§ 2.02 First Occupancy (aka First Possession) [12-14]

 

First occupancy theory reflects the familiar concept of first-in-time: the first person to take occupancy or possession of something owns it.  This theory is a fundamental part of American property law today, often blended with other theories.  One major drawback of this theory is that while it helps explain how property rights evolved, it does not adequately justify the existence of private property.

 

§ 2.03 Labor-Desert Theory [14-16]

 

The labor-desert theory posits that people are entitled to the property that is produced by their labor.  Strong traces of this theory linger in American property law, sometimes mixed with first occupancy theory.  There are several notable objections to this theory, one of which is that the theory assumes an infinite supply of natural resources.

 

§ 2.04 Utilitarianism: Traditional Theory [16-17]

 

Under the traditional utilitarian theory, property exists to maximize the overall happiness or “utility” of all citizens.  Accordingly, property rights are allocated and defined in the manner that best promotes the general welfare of society.  This is the dominant theory underlying American property law. 

 

§ 2.05 Utilitarianism: Law and Economics Approach [17-19]

 

The law and economics approach incorporates economic principles into utilitarian theory.  This view essentially assumes that human happiness can be measured in dollars.  Under this view, private property exists to maximize the overall wealth of society.  Critics question the assumption that social value can be appropriately measured only by examining one’s willingness to pay.

 

§ 2.06 Liberty or Civil Republican Theory [19-20]

 

Liberty theory argues that the ownership of private property is necessary for democratic self-government.  However, the influence of liberty theory has waned due to changing economic, political, and social conditions.

 

§ 2.07 Personhood Theory [20-21]

 

Personhood theory justifies private property as essential to the full development of the individual.  Under this approach, some items are seen as so closely connected to a person’s emotional and psychological well-being that they virtually become part of the person, thereby justifying broad property rights over such items.