The Property Puzzle

41 Pages Posted: 27 Sep 2007 Last revised: 10 Aug 2008

See all articles by Amnon Lehavi

Amnon Lehavi

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: August 9, 2008

Abstract

This Article constructs a political and institutional model of property, offering an innovative approach for addressing some of property's most puzzling features. The central thesis of this Article is that regardless of our preferred substantive justifications for property, ¿dramatic¿ decisions about the giving or taking of property, such as the full-scale nonconsensual transfer of title and possession in land from one person to another, should be chiefly made by explicit and publicly-reasoned resolutions of governmental entities entrusted with the power and duty of collective decision making - chiefly legislative and administrative bodies - supervised in turn by the institution of judicial review.

In support of this thesis, the Article seeks to refute three prevailing, even if implicit, assumptions that guide much of current property theory: First, that governmental interventions with property are categorically more legitimate when they seek to redistribute preexisting property entitlements ¿downwards,¿ i.e. from the better-off to the less well-off. Second, that judicial review of legislative or regulatory decisions about property entrusts the reviewing court with substantially weaker powers than the court would have in adjudication of private disputes. Third, that the normative viability of the above-stated differential construction of property law necessarily hinges upon the feasibility of creating a comprehensive and unambiguous divide between private law and public law.

Keywords: property, jurisprudence, private law, public law, judicial review, Rawls, Kant, takings, eminent domain, legislation, constitution

JEL Classification: K11, K41

Suggested Citation

Lehavi, Amnon, The Property Puzzle (August 9, 2008). Georgetown Law Journal, Vol. 96, 2008, Available at SSRN: https://ssrn.com/abstract=1016859

Amnon Lehavi (Contact Author)

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel
972 9 9602765 (Phone)
972 9 9568605 (Fax)

HOME PAGE: http://www.idc.ac.il

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
90
Abstract Views
946
Rank
195,072
PlumX Metrics