Tuesday, May 4, 2010
Larissa M. Katz (Queen's University) has posted The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law, McGill Law Journal, Vol. 55, p. 47 (2010). The Abstract:
On what grounds can we justify the transformation of squatters into owners? To understand the moral significance of adverse possession, we need to begin with the proper analogy. Much of the moral analysis of adverse possession has proceeded on the basis that adverse possessors are land-thieves. I will begin here by explaining why the analogy of adverse possessor to land-thief is misleading. Following that, I will argue that there is a much closer analogy between adverse possession and revolution or, more precisely, a bloodless coup d’ état. The recognition of the adverse possessor’s (private) authority solves the moral problem created by an agenda-less object just as the recognition of the existing government’s (public) authority, whatever its origin, solves the moral problem of a state-less people. The morality of adverse possession, seen this way, does not turn on any particularized evaluation of the squatter’s deserts or her uses of the land. I am thus not proposing that adverse possession is justified in the same way that some argue a conscientious revolutionary is justified in resisting an oppressive or otherwise unjust sovereign. Rather, the morality of adverse possession is found where we might least expect it, in its positivist strategy of ratifying the claims to authority of a squatter without regard to the substantive merits of her agenda or her personal virtue.