Document Type
Article
Publication Date
2017
Abstract
My task is to say what remains of property rights. My answer is: quite a lot. We have reason to be optimistic about the constitutional status of private property. To explain why, I will relate a short story about property jurisprudence in Anglo-American law. It is a story not merely about property, but also about ordered liberty. Thus, this story is not just for property scholars; it holds valuable lessons for scholars and jurists who are interested in other aspects of American constitutionalism as well. Accounts of property rights often begin with the familiar treatise of John Locke. My account does not start with Mr. Locke, but with the writings of the great English jurist, William Blackstone. Unlike Locke, whose goal was to rebut the claim of kings to rule by divine right and who appealed to universal first principles, Blackstone set out to educate law students. He succeeded by declaring the structure and concepts of common law that make sense of the law of England, and by locating its parts within its whole. That English law includes the natural and civil rights that law scholars and students so often associate with Locke. But it also includes scores of particular rights and duties that arose organically in England and her colonies, including (of concern to us) British North America. Unlike those natural rights with which all humans are endowed by their Creator, and which therefore cannot be otherwise, the customary rights and liberties of the common law are partially contingent upon English and early American history. But they also are evidence of practical wisdom from which we can learn something important about rights generally. As I intend to show, rights are most secure when they are grounded in those concrete, ancient, practical duties.
Recommended Citation
Adam J. MacLeod, Metaphysical Right and Practical Obligations, 48 U. Mem. L. Rev. 431 (2017).
