n Stellenbosch Law Review = Stellenbosch Regstydskrif - Private ownership and human flourishing : an exploratory overview




This article begins with claims that private property should promote human flourishing and constitutional ideals and that the transformation of property law now needed calls for a paradigm-shift in thinking about the institution, beginning with a major revision of the "rights paradigm". Private ownership in obvious ways benefits an owner. But as explained, the links between private rights and human flourishing are complex, implicating not just owners but neighbours, surrounding communities, the landless, future generations, and other life forms. The recognition of private rights can both expand and curtail human flourishing. As for human flourishing, it is equally complex in that it is affected by many factors going beyond physical needs and consideration. The reform of property rights cannot fairly look only at how property rights benefit an owner, nor can property rights be justified on that basis. Property rights are created by law and involve the use of state power to protect rights by curtailing the liberties of non-owners and others. The only sound moral justification of this use of coercive power - this use of state power to help owners control and dominate others - rests in the ways a well-designed property regime can foster the welfare of nearly everyone, owners and non-owners alike. Law thus should not vest an owner with a power that does not, on balance, promote overall human flourishing. Inherited ways of thinking about private property cloud these realities and distort inquiries into property's origins and moral and practical consequences. Much of this thought is best wiped away with discussion begun from a new place, from an express recognition of private property as an evolving, socially created, morally complex institution that can both promote and undercut human flourishing, an institution that must be carefully calibrated to maintain its moral legitimacy and maximise its social benefits.


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