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1 - The Public Nature of Private Property

Published online by Cambridge University Press:  10 August 2018

James Penner
Affiliation:
National University of Singapore
Michael Otsuka
Affiliation:
London School of Economics and Political Science
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Summary

The idea that private law is a distinct normative category is not self-evidently true, but neither is it self-evidently false. Critics of private law’s distinctiveness often disregard the important focus that the distinctiveness claims brings to questions of ‘legal architecture’ – legal doctrine and the relationships between legal doctrines. The label “private law” points us to useful structural features of law which many have claimed call for an “internal” perspective and cannot be fully understood (or even understood at all) if only looked at in relation to the external “public” ends they might be thought to achieve. This paper examines one prominent version of the distinctiveness claim – the corrective justice position as expounded by Ernest Weinrib – in relation to private property. According to Weinrib’s view, corrective justice primarily characterizes private law, but it also includes a public dimension, calls the “omnilateral” perspective, which ensures that the interpretation and enforcement of private rights are public. My argument is that Weinrib’s account of the priority of the structure of corrective justice over the omnilaterality of public institutions gets things backwards in relation to private property. The basic structure of property is not correlativity, but omnilaterality. Property is public through and through.
Type
Chapter
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Property Theory
Legal and Political Perspectives
, pp. 1 - 22
Publisher: Cambridge University Press
Print publication year: 2018

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