What's So Private About Private Property?

摘要

This work attempts to determine what kinds of institutions---if any---the state should implement to protect private property, and investigates how individuals and communities operating within those institutions ought to behave. Because the laws produced by such institutions may conflict with community rights, social welfare, and justice, the political authorities---including judges and legislators---who operate the institutions must determine whether, and under what conditions, individual property rights ought to prevail over conflicting rights. I argue that considerations of privacy are necessary for making these determinations. Privacy---the condition that requires limitations upon the ability of others to access one's physical spaces---has normative significance for moral behavior as well as for constitutional law and politics. Privacy's value is promoted through private property rights, which are themselves shaped by the normative aspects of privacy. Because private property is valuable due to its intricate relationship to the promotion of privacy, states and communities ought to be able to infringe upon private property only to the extent they may infringe upon other privacy-oriented rights and interests. This infringement is encapsulated in the political act of eminent domain (or expropriation), which permits states to take private property for public use. Moral theory clarifies the role of law as political authorities use eminent domain to negotiate between private and community interests. In this work, I describe several such theories and then provide a contemporary property theory that claims the theory as an ancestor. I then ask the following questions: does this property theory facilitate eminent domain---the transfer of property from private to public---or does it make eminent domain more difficult by protecting private property against expropriation? I argue for a private property right that enjoys the same constitutional protection, known as strict scrutiny, as the privacy right, and conclude that the privacy aspects of property are best protected by a takings jurisprudence that restructures the definition of takings based upon a reappraisal of the role of just compensation, a more narrow conception of public use, and a better understanding of how privacy interests can be objectified in physical spaces.