Private Property and State Power Philosophical Justifications, Econo
This book details the relationship between private property and government. As private property is important to both individual welfare and the public interest, the book provides an intellectual framework for the analysis and resolution of contemporary pr
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Private Property and State Power Philosophical Justifications, Economic Explanations, and the Role of Government
James L. Huffman
PRIVATE PROPERTY AND STATE POWER
Copyright © James L. Huffman, 2013. Softcover reprint of the hardcover 1st edition 2013 978-1-137-37661-9 All rights reserved. First published in 2013 by PALGRAVE MACMILLAN® in the United States—a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the World, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978-1-349-47777-7 ISBN 978-1-137-37672-5 (eBook) DOI 10.1057/9781137376725 Library of Congress Cataloging-in-Publication Data is available from the Library of Congress. A catalogue record of the book is available from the British Library. Design by Integra Software Services First edition: December 2013 10 9 8 7 6 5 4 3 2 1
For Leslie
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C o n t e n ts
List of Figures and Tables
ix
Preface
xi
1 Introduction
1
2 Property and Government: An Unavoidable Tension
5
3 What Is Property?
33
4 Philosophical Justifications
61
5 Economic Explanations
91
6 The Powers and Limits of the State
127
7 Conclusion
157
Notes
167
Table of Cases
177
Index
179
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Fi g u re s a n d Ta b l e s
Figures 3.1 Types of property systems (the circular perspective) 3.2 Types of property systems (the linear perspective)
42 53
Tables 2.1 A taxonomy of resource allocation systems
30
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Preface
At least a few of my academic colleagues will be puzzled, if not chagrined, that I have written a book about property. As they might point out, in four decades of teaching law students I have never taught a basic course in property law. As a result, particularly given that it has been five decades since I took a course in property law, I am rusty at best on the arcane intricacies of the law of property. But this is not a book about property law. This is a book about the ubiquitous social institution of property, and about government’s role as definer, enforcer, and regulator of legal rights in property. It is written for non-experts, much as I imagine I might begin a course in property law. Law students are, after all, non-experts at the beginning. It is important that non-experts understand the law. If they do not, the law will never achieve its purpose of defining and regulating relations among people. At the same time, it is essential that experts in the law—lawyers, judges, and law professors—understand how the law and legal institutions are perceived by non-ex
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