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Rationales For Property Outline

Law Outlines > Property (Duke Wiener) Outlines

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Rationales for property

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Labor theory - Locke, Second Treatise on Government Every person owns his body. Thus, each person owns the labor that his body performs. So when a person labors to change something in nature for his benefit, he mixes his labor with the thing, and by this mixing process, he thereby acquires rights in the thing. a. Examples: cultivation, ideas, discovery Limits on the labor theory a. The degree of labor required is uncertain. The theory should permit a person to receive the value that his or her labor adds to a thing, not title to the thing itself. b. It is not clear whether or not we really own ourselves. We cannot sell our organs and we do not have full autonomy. We cannot sell certain types of our labor such as sex. c. Where there are multiple laborers, the theory does not provide a method to apportion the property. d. They may be ownership without use, such as natural conservatory e. Sufficiency condition: labor vests ownership where there is enough, and as good as left in common for others. This condition can only be satisfied if labor enlarges the pie. In this sense the labor theory is similar to utilitarianism. Personhood theory - Radin The purpose of law should be to promote flourishing and dignity of the individual. Personhood spectrum: a. fetish (care so much of property relationship that it is unhealthy) ?
b. personal (property essential to your flourishing as individual) ?
c. fungible (indifferent between that property or cash) 5th amendment "takings with just compensation" does not privilege personal property. However, some parts of the personhood theory is reflected in law: 3rd amendment (special protection for private homes against government quartering soldiers) and 13th amendment (prohibiting involuntary servitude/slavery) Problems: a. The personhood theory is too subjective, it is difficult to measure and prove. A ring could be fungible to someone, personal to others, and fetish to yet some other people b. Too anthropocentric - interpreting everything in terms of human experiences and values Distributive justice - Rawls, Wilson Focused on community, not individual

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