Band 18, Heft 2

Property and sovereignty are often used as models for each other. Landowners are sometimes described as sovereign, the state’s territory sometimes described as its property. Both property and sovereignty involve authority relations: both an owner and a sovereign get to tell others what to do — at least within the scope of their ownership or sovereignty. My aim in this Article is to distinguish property and sovereignty from each other by focusing on what lies within the scope of each. I argue that much confusion and more than a little mischief occurs when they are assimilated to each other. The confusion can arise in both directions, either by supposing that property is a sort of stewardship, or that sovereignty is a large-scale form of ownership. One of the great achievements of modern (i.e., Kantian) political thought is recognizing the difference between them.

Respectively in the public andin the private spheres, both sovereignty and property are expressions of the turn to the primacy of the interests of the individual at the beginning of the Modern Ages: in the first case this primacy is related to the individual state, in the second to the individual economic actor. The centrality of individuality, as the most distinguishing feature of modern thinking, thus lies at the basis of the interconnection between the two concepts. This is developed according to three distinct patterns. In the light of the first pattern, sovereignty degenerates into a mere means in the service of defending private interests, thereby eluding its fundamental public function. On the other hand, from the perspective of the second pattern, individual property leaves the private domain, claiming absoluteness and presuming to replace the public dimension. Both these patterns reflect one-sided relations in which the two terms — sovereignty and property — merge in opposite ways, but always losing their specific content and rationale in the context of the social order. The third pattern is the only one in which sovereignty and property maintain their respective functions, with the two elements synergistically contributing to a social order in which public sphere and private dimension are both recognized as essential components. Here, public sovereignty and private property are co-essential insofar as sovereignty derives from individual will, private property is fundamental for the individual to pursue the personal self-realization that lies at the basis of his/ her legitimation of sovereignty, and — finally — public power is at the service of defending the rights and interests of all individuals.

This Article argues that ownership is a form of authority that is constitutionally basic in liberal societies. At the same time, I argue, neither the particular benefits nor burdens that accede to the position of ownership are. By distinguishing between a principle of sovereignty , which I argue constitutes the core authority of owners, and a principle of accession, which I argue regulates the distribution of benefits (and burdens) attached to the position, we can see how this is so. Taxation, regulation, expropriation, by means of which benefits are withheld or burdens imposed, are not then attacks on property that undermine the position of ownership itself. Attacks on the office of ownership as such would be, rather, acts by the state that deny the basic sovereign authority of owners to set the agenda that regulates private activity with respect to a thing, e.g., by subordinating owners to the private choices of others.

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.

This Article is based on a larger work that seeks to map the uses of different legal vocabularies by ambitious European legal and political thinkers in the period of c.1300-1800 in order to defend, explain and organize the exercise of power outside the domestic commonwealth. The Article examines the ways in which English legal languages (civil law, common law, natural law, jus gentium) were used to think about, propagate and defend English transatlantic expansion. For most of that time, in their relations public and private power remained closely interwoven. The pluralism of English law also contributed to the appearance of arguments from property and sovereignty in different configurations so that it is often hard to figure out which precise connotation is being made. The uses also varied significantly from Continental practices. I am above all interested in the imperial or colonial significance of these arguments. The point that emerges here is that by 1800, a conception of British Empire had arisen where the exercise of sovereign power was clearly derivative from and supplementary to claims about private property.

For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay, we argue, negatively, that the prevailing (libertarian) understanding of private property cannot plausibly meet this demanding standard; and develop, affirmatively, a liberal conception which has a much better prospect of meeting property’s justificatory challenge. Private property, on our account, is an empowering device, which is crucial both to people’s personal autonomy (understood in terms of self-determination) and to their relational equality (understood in terms of reciprocal respect and recognition among persons). The liberal conception of the human right to property has both vertical and horizontal significance — it implies respect from both the public authority and other individuals — which means that it is thoroughly political but not necessarily statist. Our account generates important implications, both domestic and transnational. Domestically, it implies that whereas some property rights should be subject to strong constitutional protection, state law should facilitate other types of private and non-private property institutions, and these property institutions may well be subject to non-owners’ claims to access and, more broadly, to being treated respectfully. Furthermore, our conception of the human right to property requires that everyone have the unusual authority typical of full-blown private ownership. Transnationally, our analysis highlights a freestanding dimension of relational justice, which is relevant across borders even given that our distributive obligations are statist. This injunction of relational justice in transnational interactions brings into question the adequacy of the current state of the law, according to which these interactions are mainly governed by choice-of-law rules that conceptualize them as wholly subsumed under the capacities of the parties as citizens of their respective polities.

Morris Cohen’s classic essay, Property and Sovereignty, correctly discerned that political sovereignty and private property are alternative forms of government. Where it failed was in suggesting that the choice between these modes of governance is a matter of dialing one up and the other down. The relationship between political sovereignty and property is complex, and varies depending on the audience of property we have in view. With respect to some audiences — strangers and transactors — those who favor a strong system of property will want to enlist a generous measure of assistance from the political sovereign. With respect to other audiences — neighbors and sharers — those who want a robust property system are more likely to want the powers of the political sovereign to be held in check. Cohen was thus right that the political order and private property are both forms of power over people. But the exact mix of these two regimes is anything but simple or unidimensional.

The debate whether property is a limit on or the product of sovereignty envisages a tension between “the individual owner” and “the state.” But “the state” is not more than the aggregate of individuals who define theirs and others’ property rights through the state’s political process. The underlying tension between property and sovereignty is thus the tension between the economic market and the political market. Owners and others compete simultaneously at both levels to define, protect or improve the value of property. There are two ways to compete in the political marketplace: by engaging in either “high visibility politics” or “low visibility politics.” Diffuse owners rely on high visibility politics promoted by agents such as political parties or trade unions and on elections, referenda and the like, whereas smaller groups of owners prefer the low politics of capturing lawmakers and state executives. When economic markets became global at the end of the Cold War, so did the political markets: property rights increasingly became defined by international agreements, by decisions of international organizations, and by the exercise of “low politics” in foreign, weaker states. The global political markets were dominated by the executive branches of a handful of relatively strong states that, in turn, were responsive to the “low politics” of special interests. The high transaction costs of cooperation among diffuse owners inhibited the parallel rise of “high politics” at the global level. The skewed global political market for property continues to favor special interests, but there are budding attempts to reclaim the space for “high politics” by national regulators and courts. Current negotiations over the so-called “Mega Regional” agreements between the United States and its trading partners will, if successful, nip these buds as they render certain property rights almost immune to the subsequent challenges of high politics.

By what right do sovereign states prohibit migrants from entering their territories? It cannot be assumed that they do, certainly not as a matter of the way we define “sovereignty.” Can the sovereign right to exclude immigrants be derived from the sovereign’s status as owner of the territory it controls? This Article shows that the idea of the sovereign as owner is too problematic to be the basis of any argument for the right to exclude. It also argues against the proposition that communities, considered as informal sovereigns, have a right to exclude based on their communal property in the land they inhabit. In both cases, an “ownership conception” is distinguished from a more attractive “responsibility conception” of sovereignty. The former remains unclear, while the latter leaves open the question of who the sovereign (state or community) is responsible for.

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary sovereignty fit this pattern. All others are de facto more like private entities, which by definition cannot manipulate their own survival constraint. States can surrender their monetary sovereignty directly by adopting another currency or by issuing their own debt in foreign currency and under foreign law. They also compromise their sovereignty by permitting unlimited capital inflows denominated in currencies other than their own. This is because in times of crisis they will not be able to rescue the domestic financial system from its tendency to self-destruct without subjecting itself to a sovereign debt crisis and the implied need to rely on a lifeline from other states or supranational entities.

May a hotel owner that objects to same-sex marriage on religious grounds refuse to host a same-sex wedding in its ballroom or deny the couple the right to book the honeymoon suite? Do public accommodation laws oppress religious dissidents by forcing them to act contrary to their religious beliefs or does discriminatory exclusion threaten equal access to the market economy and deny equal citizenship to LGBTQ persons? Answering these questions requires explaining why one property claim should prevail over another and why one liberty should prevail when it clashes with another. And answering those questions requires analysis of the relationship between property and sovereignty. Sovereign power both creates and regulates the types of property rights that can be tolerated in a free and democratic society that values each person equally. Should we view sovereignty as a threat to property or property as a threat to sovereignty? Libertarians choose the first and liberals the second. But this is the wrong way to understand the relation between property and sovereignty. Property and sovereignty are not separate and independent concepts or spheres of social life that can be brought into relationship with each other. Rather, they are imbricated; they overlap like roof tiles. Our aspiration to live in a free and democratic society places certain constraints on both property and sovereignty. Such societies do not recognize absolute power, whether public or private. Free and democratic societies are committed to a substantive vision of both social relations and politics. We have fruitful debates about property and sovereignty and, in the end, must construct a legal system that effects an acceptable compromise between access and exclusion in the property regime. Our historic practices regarding racial and other forms of discrimination and our evolving norms suggest that public accommodation laws enable access to the marketplace without regard to invidious discrimination. Religious freedom cannot operate to deny equal citizenship or opportunity. For that reason, a same-sex couple should not have to call ahead to see if they are welcome to book the honeymoon suite. Public accommodation laws do not infringe on legitimate property rights or religious freedoms; rather, they define the legitimate contours of liberty and property in a society that treats each person with equal concern and respect.

We typically associate sovereignty with the modern state and presuppose the coincidence of political rule, public power, government, legitimacy and jurisdiction with territorially delimited states. We are also used to referencing liberal principles of justice, egalitarian ideals of fairness, republican conceptions of non-domination and separation of powers, and democratic ideas of popular sovereignty (democratic constitutionalism), for the standards that should constitute, guide, limit and legitimate the exercise of sovereign power. This Article addresses an important challenge to these principles: the reemergence of theories and claims to jurisdictional/political pluralism on behalf of non-state “nomos groups” within well-established liberal-democratic polities. Theories of jurisdictional political pluralism purport to account for the independent sovereign authority of the corporate religious, while providing a “postmodern,” “permeable,” “pluralist” conception of sovereignty allegedly more appropriate descriptively to twenty-first century reality and more attractive normatively, than the modern statist version. This Article analyzes and assesses these claims. It criticizes the disassociation of the sovereignty concept from publicly accountable power, challenges the displacement of rights-holders from individuals to corporate groups, and offers a different, federal alternative to anachronistic or normatively flawed modern monistic statist conceptions. My purpose is to preserve the key achievements of democratic constitutionalism and to apply them to every level on which government, power, rule, and/or domination is exercised.