In this Essay I hope to explain the sense in which private property is indeed private and the way in which it is inevitably public. My starting point for this inquiry is the recent reinvigoration of the Kantian conception of private law in general and of property more specifically. This significant neo-Kantian enterprise avoids Locke’s most dubious claims and yet presents the most vigorous defense of the conceptual separation of private and public. Neo-Kantians helpfully highlight the important correlativity characteristic of private law, entailed by the bipolar structure of private law, which has significant implications for our understanding of private property. But the integrity of private law does not require the neo-Kantians’ more ambitious claims of an airtight distinction of private and public law and the exclusion of any collective or public value from our understanding of property. Quite the contrary: in order for the correlativity inquiry to start off — in order for it to be intelligible — we need to determine what exactly is the content of the parties’ rights, a determination that necessarily invokes our public values. Not every such value can, however, qualify for the task: by and large only values that participate in the regulative principle that underlies the property institution at issue — that is: only values that inform our ideal vision of the interpersonal relationship at hand regarding the pertinent resource — can be legitimately taken into account. The diversity of these regulative principles in property and their reliance on our public values need not be confusing and should not be considered demeaning to the private nature of property. Rather, properly understood, this diversity is the precondition for property’s crucial role in supporting diverse forms of interpersonal interaction and thus diverse forms of human flourishing. Thus, this public dimension of private property is, at the end of the day, what enables property law to adequately recognize and promote the autonomy-enhancing function of pluralism and the individuality-enhancing role of multiplicity.
Dagan, Hanoch, The Public Dimension of Private Property (April 20, 2012).