Property and liberty

Eric T. Freyfogle

Research output: Contribution to journalArticlepeer-review

Abstract

Private property and liberty, particularly in the case of privately owned land, are intertwined more complexly than we commonly realize. When we study how private property operates in daily life, looking at the full array of land-use conflicts, what we see is that private rights backed by state power are as apt to restrict liberty as they are to promote it. To understand the multiple, contradictory ways that property is linked to liberty is to see why we cannot start with the idea of liberty, or with any conception of natural rights, and produce from it a working, morally justified system of private property. To produce such a system, we need to start instead in a much different place, looking to the various ways that private property can foster the common good. Ultimately, lawmakers crafting and updating a scheme of private property must choose among the many types of liberty that they want to secure, based on their assessment of the common good. Only after they have done that, choosing among the options and paying attention to overall social utility, can we see how private property promotes liberty. These observations have considerable relevance to the ways we think and talk about property, land-use regulations, and takings jurisprudence.

Original languageEnglish (US)
Pages (from-to)75-118
Number of pages44
JournalHarvard Environmental Law Review
Volume34
Issue number1
StatePublished - May 12 2010

ASJC Scopus subject areas

  • Environmental Science (miscellaneous)
  • Management, Monitoring, Policy and Law
  • Law

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