Public Private Property

Authors

Xiaoqian Hu

Abstract

Many struggles are being fought in America today around regulation and redistribution of private property rights: between owners’ right to develop land and society’s need for environmental conservation; between landlords’ privilege to charge higher rents and society’s need for affordable housing, between property owners’ desire for protection from negative effects and unhoused persons’ need to live in the only space accessible to them, etc. These struggles, however, are doomed by a widely shared notion that public and private are inherent qualities in a zero-sum game. This Article refutes this notion. Building upon Legal Realist, post-Realist, and poststructuralist insights, it argues that public and private are effects of publicizing and privatizing acts. They are not opponents, but accomplices that depend on each other for meaning. Property is both public and private. It is public when, to the extent, and precisely because it is private, and vice versa. A healthy property system must embrace the paradigmatic status of both private and public property. Recognizing the value of one but denying that of the other is to build a chair with half its legs.

This Article attributes the current conflicts around property regulation and redistribution to a lack of public property paradigm in American law. To fill this gap the Article presents a public property paradigm as a companion strategy to the existing private property paradigm. The core of this public property paradigm is a general and unconditional right for everyone in America to have and enjoy essential property rights such as housing and ecological commons. The Article grounds this public property paradigm on the dual human condition of transcendence (freedom) and facticity (fixedness), drawing from phenomenology, Hegelian freedom, Vulnerability Theory, and feminist theory.

This Article is radical, not so much because of the institutions it proposes, but because of how it gets there. The Article takes a highly eclectic approach, borrowing from diametrically opposing theories of property and the human condition, and building a theoretical house that is more capacious than a pure theory would allow. The borrowed theories are compatible in this Article, but only with a heavy dose of pragmatism and a deep commitment to cultural and political pluralism.

Repository Citation

Xiaoqian Hu, Public Private Property, 109 Marq. L. Rev. 385 (2025).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss1/17