Property, Sovereignty, and the Public Trust
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Laura S. Underkuffler
Abstract
Generally, in liberal democratic systems, it is assumed that government should forbear from interference with existing individual property entitlements. It is assumed that existing individual property entitlements should be respected, with government reluctant to interfere. Despite the ubiquity of this assumption, the theoretical underpinning for it is not obvious. A sovereign must respond to the needs of all of the members of the greater community for which it speaks. In view of this obligation, irrevocably assigning property rights to some, and not to others, is an inherently troublesome proposition. In this Article, the reasons for this state of affairs are examined. The conclusion is reached that conventional theories advanced by courts and commentators for government forbearance — such as protecting individual reliance interests, or advancing other independent policies — fail to explain the forbearance phenomenon. A more convincing reason can be found in a public fiduciary theory of government. However, recognition of this reveals that the property/sovereignty relationship is far more complex than a simple forbearance model would dictate. In fact, it mandates — in some circumstances — government nonforbearance, as well.
© 2017 by Theoretical Inquiries in Law
Artikel in diesem Heft
- Frontmatter
- Introduction
- Property and Sovereignty: How to Tell the Difference
- The Dialectics of Sovereignty and Property
- Property’s Sovereignty
- Property, Sovereignty, and the Public Trust
- Sovereignty, Property and Empire: Early Modern English Contexts
- The Human Right to Private Property
- Property and Sovereignty, Information and Audience
- Sovereignty and the Politics of Property
- Exclusion: Property Analogies in the Immigration Debate
- From Territorial to Monetary Sovereignty
- Property and Sovereignty Imbricated: Why Religion Is Not an Excuse to Discriminate in Public Accommodations
- Sovereignty, the Corporate Religious, and Jurisdictional/Political Pluralism
Artikel in diesem Heft
- Frontmatter
- Introduction
- Property and Sovereignty: How to Tell the Difference
- The Dialectics of Sovereignty and Property
- Property’s Sovereignty
- Property, Sovereignty, and the Public Trust
- Sovereignty, Property and Empire: Early Modern English Contexts
- The Human Right to Private Property
- Property and Sovereignty, Information and Audience
- Sovereignty and the Politics of Property
- Exclusion: Property Analogies in the Immigration Debate
- From Territorial to Monetary Sovereignty
- Property and Sovereignty Imbricated: Why Religion Is Not an Excuse to Discriminate in Public Accommodations
- Sovereignty, the Corporate Religious, and Jurisdictional/Political Pluralism
