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Background Outline

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BACKGROUND I.

PROPERTY A.

IN THE

COMMON LAW TRADITION

Foundational Texts

1. JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT (1689) (SUPP. I, 3) Property is pre-political. "[I]n the beginning all the world was America." Even absent state control or "any express compact of all the commoners," men have private property. How?
ii. Labor theory of property. "[E]very man has a property in his own person," so "[t]he labor of his body, and the work of his hands, we may say, are properly his." Therefore, "[w]hatsoever then he removes out of the state that nature hath provided . . . he hath mixed his labour with, . . . [and] it hath by this labour something annexed to it, that excludes the common right of other men." iii. Purpose of government to protect property. "The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property." WM. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (1765) (SUPP. I, 15) i. Property is sole dominion. The "right of property" is "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." ii. Individual > community. It is an "absolute right" that "consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land . . . . In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good . . . . iii. Eminent domain. No legislature may "absolutely strip[] the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. . . . All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price . . . ." THE DECLARATION OF INDEPENDENCE (1776) (SUPP. I, 43) I. Property unalienable right. "We hold these truths to be selfevident[:] [1] that all men are created equal, [2] that they are endowed by their Creator with certain unalienable Rights, [3] that among these are Life, Liberty, and the pursuit of Happiness --- [4]
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . ." U.S. CONST. AMENDS. I-X, XIV (SUPP. I, 45) I. AMEND. I: "Congress shall make no law . . . abridging the freedom of speech . . . ." II. AMEND. V: "No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. III. AMEND. XIV: "No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA (1787) (SUPP. I, 47) I. Farmers > urbanites. "Those who labour in the earth are the chosen people of God . . . . The mobs of great cities add just so i.

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