Property Rights and Private Law as a Special Case

Abstract

Property rights can be strong, constituting limits to the achievement of collective goals, or weak, subordinated to these same goals. Certain theories, such as Rawls’s, may treat certain rights (e.g., the right to personal property) as strong and others (e.g., ownership of the means of production) as weak. In this article, my interest lies in theories that espouse what I designate as “private law as a special case thesis” or simply “special case thesis” (SCT). According to this thesis, the property rights of private relations are strong, which is compatible, however, with objectives such as distributive justice being pursued by other means (e.g., taxation). Three arguments in favor of the SCT are scrutinized: the division of responsibility argument, the basic liberties argument, and the pre-political argument. Of these, the first two, who strive to reconcile the SCT with a conception of justice (Rawls’s conception of justice) whose primary object is the basic structure of society, face considerable difficulties. This suggests that the specialty of private law in liberal theories may depend on relinquishing the primacy of basic structure in order to accommodate certain injunctions of pre-political morality.