Monday, August 6, 2012

Sage on Original Acquisition and Kant

N.W. Sage (Toronto) has posted Original Acquisition and Unilateralism: Kant, Hegel, and Corrective Justice (Canadian Journal of Law and Jurisprudence) on SSRN.  Here's the abstract:

In an original acquisition of property, a person acquires a previously unowned thing just by taking control of it. Many legal theorists have found original acquisition problematic because it seems to involve the acquirer, through a merely “unilateral” act, imposing new duties on other persons, who must now respect the acquirer’s property right.

This paper considers the problem of unilateralism from the standpoint of a Kantian theory of property law. Recently, theorists such as Ernest Weinrib and Arthur Ripstein have argued that, from a Kantian standpoint, original acquisition is problematic because it allows the acquirer unilaterally to constrain other persons’ freedom. The Kantian solution, they contend, is the creation of a “civil condition” of public legal institutions, which determine and enforce everyone’s property rights, thereby transforming original acquisition into an act that is “omnilateral” in character.

This paper argues that the proposed civil condition solution is unsuccessful. Indeed, if original acquisition is problematically unilateral because it constrains freedom, then Kant’s normative system — founded upon a principle of equal freedom — is unable to resolve the problem. But in any event, the paper argues, from a Kantian standpoint there is no problem of unilateralism in the first place. Original acquisition is not unilateral in a way that is problematic for Kant because it does not constrain others’ “freedom” in the Kantian sense of that term.

This also explains why Hegel, whose account of property is otherwise similar to Kant’s, saw no problem of unilateralism worth mentioning. And it means that any corrective justice theory of private law that is linked to a Kantian or Hegelian account of property rights will be untroubled by original acquisition.

Steve Clowney

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