Property and Justice

Those … who make use of the word, property, or right, or obligation, before they have explain’d the origin of justice, or even make use of it in that explication, are guilty of a very gross fallacy, and can never reason upon any solid foundation. A man’s property is some object related to him: This relation is not natural, but moral and founded upon justice. ’Tis very preposterous, therefore, to imagine, that we can have any idea of property, without fully comprehending the nature of justice … The origin of justice explains that of property. There is a strong temptation for legal cultures to draw a sharp distinction between legal adjudication and politics. Such a separation seems to be demanded by modern ideals of political legitimacy. However, the aspiration to maintain this distinction faces special difficulties with respect to the common law, where the judiciary has the power to make law. In response to these difficulties, courts and commentators have often sought refuge in a conception of the private law as a system of corrective justice that is supposedly insulated from the concerns of distributive justice that dominate the political process. This chapter examines the effect of this perspective on our understanding of property.