ABSTRACT
This article provides an account of the structure of property law based on the principle of subsidiarity. That principle holds that more centralized organizations, including governments, should fulfill a subsidiary role in relation to the individuals and groups of which they are comprised. While subsidiarity has been highly influential in the areas of public law, constitutional law, and international law, its relevance to property law has been underappreciated. Property rights distribute decision-making authority over resources to non-state parties. This promotes a number of interrelated goods associated with subsidiarity, including: the qualitatively distinct contributions made by individuals and groups to the common good, the instrumental benefits of decentralized decision-making, the intrinsic benefits of involvement in actions and decisions affecting oneself, and the development of virtues. However, the principle of subsidiarity also suggests important roles for public authorities, including assuring an appropriate distribution of resources in society and intervening where the private authority of owners fails to uphold the common good. In this respect, subsidiarity offers a distinctive understanding of the divide between public and private law. Private law doctrine appropriately provides owners with a significant sphere of presumptive authority, yet this is subject to broad powers of public authorities to alter the baseline where in their judgment the common good requires it. This article argues that the concept of subsidiarity can help to bridge the divide between progressive property theory and theoretical approaches that emphasize the authority of owners. It can also contribute to an understanding of the concept of property, public access rights to private property, property-based community governance, and legal protections for property rights.
Lavoie, Malcolm, Subsidiarity and the Structure of Property Law (April 26, 2023), University of Toronto Law Journal, volume 74:2, Forthcoming.
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