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Public Ownership

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Abstract

The two questions I seek to address in these pages are what is public property and why does it matter. Public property, like property more generally, is a powerful legal arrangement of allocating control and use rights with respect to resources. Unlike private property, public property does not establish normative powers with which private individuals can shape their practical affairs in and around social spheres such as housing, work, commerce, and worship. Rather, its distinctive value lies in extending autonomous agency to the construction of public spaces and resources. Public property places individuals in a position of collective self-government, manifested in the following two particular ways: first, expressing the ideas and commitments that the political community as a whole affirms; and second, exerting control over the construction and direction of the resources that make up the environment they occupy.

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Notes

  1. Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), pp. 40–43.

  2. A leading welfarist exposition is Carol Rose, ‘The Comedy of the Commons: Custom, Commerce and Inherently Public Property’, University of Chicago Law Review 53 (1986): 711. The Kantian approach is on full display in Arthur Ripstein, Force and Freedom (Cambridge, Mass.: Harvard University Press, 2009), pp. 261–65; Arthur Ripstein, Public and Private in the Tort of Public Nuisance (unpublished manuscript, May 2022); and in Christopher Essert, Yours and Mine: Property Law in the Society of Equals (unpublished manuscript). The democratic approach to public property is discussed in Elizabeth Anderson, ‘The Ethical Limitations of the Market’, Economics and Philosophy 6 (1990): 179, pp. 195–96; Bonnie Honig, Public Things: Democracy in Despair (New York, NY: Fordham University Press, 2017); John Page, Public Property, Law and Society: Owning, Belonging, Connecting in the Public Realm (New York, NY: Routledge, 2021). There are other accounts of public property, to be sure. Plato and Marx are famous examples. See Karl Marx and Friedrich Engels, ‘Private Property and Communism’, in The German Ideology 51–54 (Amherst, NY: Prometheus Books, 1998); Jonny Thakkar, ‘Moneymaking and Craftsmen: A Platonic Approach to Privatization’, European Journal of Philosophy 24 (2016): 735, 745. Other, more recent discussions of public property can be found in Billy Christmas, Property and Justice: A Liberal Theory of Natural Rights (Milton: Taylor and Francis, 2021), p. 95; Shmuel Nili, ‘The Idea of Public Property’, Ethics 129 (2019): 344; Leif Wenar, ‘Property Rights and the Resource Curse’, Philosophy & Public Affairs 36 (2008): 2, 11–12. I leave these other accounts for another occasion.

  3. There are different types of easements as well as different ways of creating one. The easement at the center of the discussion is called public easement in gross (as opposed to easement appurtenant).

  4. Rose, ‘The Comedy of the Commons’, p. 720.

  5. Ibid., pp. 768, 723.

  6. Ibid., p. 779.

  7. Ibid.

  8. Ibid., p. 768.

  9. Ibid., p. 770.

  10. Anderson, ‘The Ethical Limitations of the Market’, p. 195.

  11. Ibid.

  12. Cf. Elizabeth S. Anderson, ‘What is the Point of Equality?’, Ethics 109 (1999): 287.

  13. Anderson, ‘The Ethical Limitations of the Market’, p. 196.

  14. Ibid.

  15. Ibid. p. 195.

  16. The Kantian account presented in the main text follows the Toronto school of Kantianism. It is not, or not necessarily, the only Kant-inspired theory of property there is. See, e.g., S. M. Love, ‘Communal Ownership and Kant's Theory of Right’, Kantian Review 25(3) (2020): 415–40, 418; Christine M. Korsgaard, The Constitution of Agency: Essays on Practical Reason and Moral Psychology (Oxford: Oxford University Press, 2008), p. 238.

  17. Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1991), p. 63, [6:237].

  18. Arthur Ripstein, Private Wrongs (Cambridge, Mass.: Harvard University Press, 2016), p. 7, 8. Freedom as independence shares some, though not all, elements of the republican conception of freedom developed in Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1999).

  19. Ripstein, Force and Freedom, ch. 8. Essert, Yours and Mine.

  20. Ibid. See also Ripstein, Public and Private.

  21. Essert, Yours and Mine.

  22. See, e.g., Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a. See further Joseph William Singer, ‘We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom’, Boston University Law Review 95 (2015): 929, 941.

  23. Notable decisions are State of Oregon ex. rel. Thornton v. Hay, 462 P.2d 671 (Or. 1969); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355 (N.J. 1984); Raleigh Avenue Beach Ass’n v. Atlantis Beach Club, 879 A.2d 112 (N.J. 2005); Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005). See Gregory S. Alexander, Property and Human Flourishing (New York: Oxford University Press, 2018), pp. 180–81; Timothy M. Mulvaney, ‘Walling out: Rules and Standards in the Beach Access Context’, South California Law Review 94 (2020): 1.

  24. For a recent example, see Hanoch Dagan and Avihay Dorfman, ‘Public Nuisance for Private Persons’, University of Toronto Law Journal 73 (forthcoming 2023).

  25. See further Avihay Dorfman, ‘Private Ownership and the Standing to Say So’, University of Toronto Law Journal 64 (2014): 402.

  26. See further Avihay Dorfman, ‘Property and Collective Undertaking: The Principle of Numerus Clausus’, University of Toronto Law Journal 61 (2011): 467, 496–501.

  27. Avihay Dorfman, ‘When, and How, Does Property Matters?’, University of Toronto Law Journal 72 (2022): 81; Hanoch Dagan and Avihay Dorfman, Relational Justice: A Theory of Private Law (forthcoming 2024), ch. 13.

  28. Anderson, ‘The Ethical Limitations of the Market’, p. 195.

  29. Pettit, Republicanism, p. 5; Ripstein, Private Wrong, pp. 7, 8, respectively.

  30. Indeed, privately-held resources, such as shopping malls and private universities, may even be duty-bound to respect the constitutional rights to free speech of their visitors. See, e.g., Robins v. PruneYard Shopping Ctr., 592 P.2d 341 (1979) aff’d. 447 U.S. 74 (1980); State v. Schmid, 423 A.2d 615 (N.J. 1980). Being duty-bound in this way does not turn such entities to political authorities.

  31. State of Oregon ex. rel. Thornton v. Hay, 462 P.2d 671 (Or. 1969).

  32. Rose, ‘The Comedy of the Commons’, pp. 723–24.

  33. See Raleigh Avenue Beach Ass’n v. Atlantis Beach Club, 879 A.2d 112 (N.J. 2005). Cf. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892).

  34. See Alexander, Property and Human Flourishing, p. 180.

  35. The discussion in this paragraph draws on Avihay Dorfman and Alon Harel, ‘The Case Against Privatization’, Philosophy & Public Affairs 41 (2013): 67, 86.

  36. Notice that my characterization of privatization is functional, rather than formal. If the outsourcing agreement grants the government an unrestrained right to direct the deliberation and conduct of the contractor then the contractor should rightly be viewed as a governmental entity, functionally if not formally.

  37. See Commonwealth v. Rush, 14 Pa. 186 (1850). Notice that the transaction in the main text does not entitle the buyer to convert the park into a housing area or any other commercial or non-commercial project.

  38. See Avihay Dorfman and Alon Harel, Reclaiming the Public (forthcoming 2024), ch. 1.

  39. Id.

  40. See, e.g., Hélène Landemore, Open Democracy: Reinventing Popular Rule for the Twenty-First Century (Princeton: Princeton University Press, 2020); Bailey Flanigan et al., ‘Fair Algorithms for Selecting Citizens’ Assemblies’, Nature 596 (2021): 548.

  41. Another important question concerns the existence of a political space between the traditional local and the national: Are there regions or other in-between spaces that pick out a ‘public’ of their own? For more see, Yishai Blank and Issi Rosen-Zvi, ‘The Legal Forms of Regions’, Theoretical Inquiries in Law 24 (forthcoming 2023).

  42. Jedediah Britton-Purdy, ‘Whose Lands? Which Public? The Shape of Public-Lands Law and Trump’s National Monument Proclamations’, Ecology Law Quarterly 45 (2018): 921, 941.

  43. Ibid., p. 942.

  44. For more see Gregory S. Alexander, ‘Of Buildings, Statues, Art, and Sperm: The Right to Destroy and the Duty to Preserve’, Cornell Journal of Law & Pubic Policy 27 (2018): 619, 647–51.

  45. Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (London: Duke University Press, 2018), p. 31.

  46. On the emotion-laden potential of public display of art, see C. Thi Nguyen, ‘Monuments as Commitments: How Art Speaks to Groups and How Groups Think in Art’, Pacific Philosophical Quarterly 100 (2019): 971.

  47. Stephen Carr et al., Public Space (Cambridge: Cambridge University Press, 1992), p. 3.

  48. See, e.g., Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

  49. The classical account, according to which the medium is the message, is Marshall McLuhan, Understanding Media: The Extensions of Man (New York: New American Library, 1964), p. 7.

  50. See Honig, Public Things, p. 4.

  51. I borrow and modify the idea of public autonomy as it has been developed in Jürgen Habermas, Between Facts and Norms, trans. William Rehg (Cambridge: MIT Press, 1996). According to Habermas, public autonomy is identified with democratic legitimacy: ‘only those statutes may claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted’. Ibid., p. 110. On my account, by contrast, public autonomy makes no essential reference to assent (actual or hypothetical).

  52. See Dagan and Dorfman, Relational Justice: A Theory of Private Law, ch. 3.

  53. Avihay Dorfman, Conflicts between Equals: A Vindication of Tort Law (unpublished manuscript).

  54. See further Hanoch Dagan and Avihay Dorfman, ‘The Human Right to Private Property’, Theoretical Inquiries in Law 18 (2017): 391; Hanoch Dagan, A Liberal Theory of Property (New York: Cambridge University Press, 2021).

  55. It may not be true, however, with respect to having a say over whether to prohibit any owner from disseminating political ads in the building’s lobby. I assume that control rights over the condominiums’ common facilities are typically less dramatic than that.

  56. It is telling, in my view, that in response to the charge that a certain religious display on federal land violates the Establishment Clause, U.S. Congress has conveyed the cross and the land on which it stands to a private party. See Salazar v. Buono, 559 U.S. 700 (2010).

  57. On the responsibility of owners qua owners, see Avihay Dorfman and Jacob Assaf, ‘The Fault of Trespass’, University Toronto Law Journal 65 (2015): 48.

  58. See further Dorfman and Harel, Reclaiming the Public, ch. 5.

  59. The university, properly conceived, is a case in point.

  60. John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), p. 63.

Acknowledgements

This article has benefited from responses received at the 2023 Group Ownership Workshop at the University of Toronto and the 2023 Progressive Property Workshop. I would like to thank the participants in these occasions. I would also like to thank Debby Becher, Bethany Berger, Billy Christmas, Hanoch Dagan, Rashmi Dyal-Chand, Chriss Essert, Alon Harel, Doug Harris, Ronit Levine-Schnur, Shelly Kreiczer-Levy, Suzie Love, John Lovett, Hanri Mostert, Tim Mulvaney, Manish Oza, Marc Roark, Yara al Salman, Konstanze von Schütz, Nicholas Vrousalis, Rachel Walsh, and two anonymous Law & Philosophy Reviewers for helpful comments on earlier drafts.

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    Avihay Dorfman

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Dorfman, A. Public Ownership. Law and Philos (2024). https://doi.org/10.1007/s10982-023-09488-8

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