North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

Labor, Exclusion, and Flourishing in Property Law

January 17, 2017

95 N.C. L. Rev. 413 (2017) 


This Article presents a natural rights justification for property rights in a theory called “productive labor theory.” Productive labor theory sets forth a Lockean, labor-based case for property. It links property to human interests in flourishing—specifically in interests in using ownable resources to produce constituent elements of survival or rational improvement. On this foundation, “labor” means intelligent and purposeful activity producing goods that contribute to survival or rational improvement. 


This Article presents productive labor theory as an alternative to the two families of normative theories that currently loom large in contemporary property scholarship—economic theories of exclusion and progressive theories. Each of these theory-families unsettles property in an important respect; productive labor theory shores up each of the foundations unsettled by exclusion and progressive theories. Like progressive theories, productive labor theory links property on a satisfying moral foundation, namely human flourishing. Unlike progressive theories, productive labor theory does not denigrate or undermine the role that exclusive control plays in property. Like leading economic theories, productive labor theory justifies strong rights of exclusive control and possession. Yet it avoids standard criticisms about normative foundations of law and economic analysis, and it identifies moral boundaries within which efficiency analyses might be normatively defensible. 


The Article illustrates productive labor theory using the prima facie case for trespass to land; the common law privilege for necessity and the defense for adverse possession; Allemansrätt and statutory rights to roam; state and local landmark schemes, as exemplified in Penn Central Transportation Co. v. City of New York; and regulatory schemes authorizing the use of eminent domain to condemn and reassign private land for commercial redevelopment, as exemplified in Kelo v. City of New London.



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