From Social Recognition of Property to Political Recognition by the State: Peter Gerhart’s Property Law and Social Morality and the Evolution of Positive Rights

Authors

Christopher Serkin

Document Type

Symposia Article

Abstract

This short response argues that positive property rights—especially in a modern regulatory state—are inherently redistributive. When the State has a choice between different regulatory strategies for achieving public goals, constitutional limits like the Takings Clause should not rely on formal categories but must instead account explicitly for distributive concerns. At the end of the day, the State is an active, not passive, player in the definition of property rights, a role that comes with both constitutional limitations and requirements.

DOI

10.37419/JPL.V2.I2.6

First Page

287

Last Page

300

Recommended Citation

Christopher Serkin, From Social Recognition of Property to Political Recognition by the State: Peter Gerhart’s Property Law and Social Morality and the Evolution of Positive Rights, 2 Tex. A&M J. Real Prop. L. 287 (2015).
Available at: https://doi.org/10.37419/JPL.V2.I2.6