ABSTRACT
Philosophers tend to be more skeptical of natural property rights than natural contractual rights, arguably reflecting core differences between the two types of right. By contracting parties define their rights together enabling them to reflect morality precisely, while the relations established by property are shaped without the participation of many of the parties to them, and the forms property rights can take are constrained doctrinally. I defend an account of property and contract that can make sense of philosophers’ differential skepticism by viewing them as institutions that ideally facilitate just responses to moral uncertainty about justice. Through good-faith, joint deliberations, contracting parties define terms that are morally binding despite diverging from the moral truth. Though one step further removed from this truth, property rights facilitate just responses to moral uncertainty by creating a baseline for parties’ deliberations that serves community-wide justice while leaving relationship-specific aspects of justice to the parties.
Stone, Rebecca, Private Rights: Artificial but Not Instrumental (May 19, 2025), UCLA School of Law, Public Law Research Paper No 25-21; in The Property-Contract Interface: Historical and Theoretical Perspectives (James Penner, Irina Sakharova and Henry Smith eds, forthcoming).
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