Private Law Theory

ABSTRACT
In the present analysis, I argue that modern property discourses mirror the aporetic normative structure of the modern legal consciousness. I distinguish between the ‘first modernity’ and the ‘second modernity’, and argue that both are a necessary part of modern property theory. The first modernity describes the affirmative strand of Enlightenment modernity, emphasising the justifiability of individual rights on the basis of personal freedom. In property theory, this strand of thinking spurred the formation of modern property concepts by forging the Roman-Blackstonian notion of dominium into a normatively justified individual right. Yet, this first modernity of property theory was from the outset countered by an opposite tendency of critical deconstruction, which I refer to as the second modernity. I argue that the constant tension between the first and second modernities in the normative foundations of property resonates in recent critical debates on property as a right to a thing versus a mere ‘bundle of sticks’ or property as a function of public policy and ‘the social’ rather than as a private right.

Auer, Marietta, Modern Property (October 29, 2023), forthcoming in: Paul B Miller and John Oberdiek (eds), Oxford Studies in Private Law Theory, volume 3 (OUP).