Public purpose, common good : constitutional property in the democratic state
- This dissertation concerns the status of property as a constitutional guarantee in a democratic state. With the exception of libertarian views, the contemporary legal theory literature resists treating property on par with other constitutionally protected liberties and goods on the grounds that constitutional property rights are fundamentally at odds with democracy. Constitutionalizing property, critics hold, is tantamount to insulating privately held interests from public deliberation and decision-making—something that is neither possible nor desirable. I defend two arguments against this position. First, I argue that the conflict is not between property and democracy, but between property and a particular understanding of democratic constitutionalism. The constitutional property debate assumes that the purpose of constitutional guarantees is protecting individuals from political majorities, acting as trumps against majority-enacted legislation. However, while property serves many purposes that are important for human liberty, none can be plausibly described as fulfilling this kind of role since property is inherently conventional and requires political definition. Second, I argue that libertarian theories of property are more complicated than the literature lets on. While libertarians are typically thought to defend just the kind of rights-based view that critics associate with constitutional property, I show that this is not a fair characterization. Libertarians care about rights, but social ordering and the rule of law are their more basic concerns, and it is this set of concerns that better explains property's importance for democracy on the libertarian view.
|Type of resource
|electronic; electronic resource; remote
|1 online resource.
|Weis, Lael K
|Stanford University, Department of Philosophy
|Fried, Barbara, 1924-
|Fried, Barbara, 1924-
|Statement of responsibility
|Lael K. Weis.
|Submitted to the Department of Philosophy.
|Thesis (Ph.D.)--Stanford University, 2010.
- © 2010 by Lael K Weis
- This work is licensed under a Creative Commons Attribution Non Commercial 3.0 Unported license (CC BY-NC).
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