Sunday, April 11, 2010
Joseph William Singer (Harvard) has posted Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity, forthcoming in Indiana Law Journal. The abstract:
First possession is said to be the root of title but the first possession theory suffers from two major defects. First, land titles in the United States originate in acts of conquest, and because conquest denies the rights of first possessors, land titles in the U.S. do not have a just origin. We should recognize the unjust origins of our land titles and recognize that the democratic way to deal with the legacies of conquest is to refuse to engage in further acts of conquest. This requires recognizing the pre-existing sovereignty and persisting property rights of Indian nations. Second, first possession is justified only if others have equal opportunities to acquire property. The equal opportunity principle is not only one that is crucial to justifying and limiting the historical rights of first possessors but constitutes a core moral principle that must be satisfied in each generation. Property rights are therefore justified today only if they are defined and regulated in a manner consistent with the norms that define a free and democratic society which treats each person with equal concern and respect. Property has legitimate origins not in first possession or conquest but in the practice of democracy and the ideal of equal opportunity. This does not mean that possession is irrelevant; it means that its moral significance must be judged in light of the democratic ideal of equal opportunity.
This piece provides some significant thoughts about the basic theory of property and land use, from one of the leaders in the field.