The (Practical) Meaning of Property


I argue that a functional approach to property - defining it as society’s decisions allocating varying kinds and degrees of legal control over resources rather than in terms of fixed sets of attributes or predefined goals - significantly clarifies public policy debate and related decision-making. That approach demonstrates we should reject characterizations of property as a yes-no proposition to which we react as well as the assumption that those who disagree with us are fools or worse. Those characterizations distract us from the central issue in property - our persistent normative disagreements regarding what constitutes its just application. Discussing property as a matter of choice will reveal we believe in a wide variety of “truths,” thus helping us talk with rather than past each other, but also clarifying that neither reason nor passion can ensure our view prevails. Finally, by focusing us on property’s practical effects, the functional approach reveals that the essential issue framing public debate in heterogeneous society is not how to ensure society’s adoption and implementation of our personal views but determining which we value more – our way or the continuation of society. If we chose the latter, then the pursuit of normative victory should give way to practical solutions which permit continued coexistence despite our normative disagreements. Although how we chose to answer the property question is up to us as individuals, the functional framework permits us to fully understand the alternatives and their consequences.


Intellectual Property Law | Jurisprudence | Law and Society | Property Law and Real Estate

Date of this Version

March 2006