In this article, Professor Purdy identifies, articulates, and defends a normative approach to property as an institution that promotes human freedom. The conception of freedom that the article defends is derived from the work of the Nobel laureate economist Amartya Sen, and defines freedom as the achievement and enjoyment of capabilities, the power to do things along various dimensions of human potential - social, economic, political, physical, intellectual, artistic, and so forth. Professor Purdy's argument has several complementary dimensions. One is close attention to several areas of concrete, ongoing debate over reform in basic features of property rights: land title in the urban slums of developing countries; control over cultural production in intellectual property law; and the development of sophisticated, market-based risk-management strategies that amount to a new frontier in the commodification of individual luck and talent. The second dimension is conceptual. Debates over the reform and extension of property systems are haunted by anxieties about distributive fairness, the effect of commodification on qualitative values, and the relationship between private property and forms of social domination all haunt. Professor Purdy argues that the freedom-promoting approach that he defends can help both to answer these concerns and to pick out cases where they properly set limits on property rights. It can thus considerably enhance the promise of the reforms with which his discussion begins. The third dimension is historical. The article shows how the conception of freedom that Sen advances, and the idea that the basic rules of property are essential promoting freedom, were first richly articulated in the Scottish Enlightenment jurisprudence and political economy of Adam Smith and his successors. The purpose of the article is thus to revive a tradition of thinking about property regimes while showing the continued relevance of that tradition to current debates.
Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72 University of Chicago Law Review 1237-1298 (2005)