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Hirokawa on Property as Capture & Care

By Lawrence Solum

Keith H. Hirokawa (Albany Law School) has posted Property as Capture and Care on SSRN. Here is the abstract:

This article describes property law as a constant negotiation between capture and care. On the one side, the rule of capture enables a possessory right through effort and intent, chiefly individualistic elements of a scheme that allows for the privatization of natural resources. However, capture tells only part of the property story, and this article brings to light non-capture aims in property that may be justified by the principle of care.

To explain care in this context, this article borrows from ecofeminism, an approach to environmental politics and ethics that ?makes a central place for values of care, love, friendship, trust, and appropriate reciprocity ? values that presuppose that our relationships with others are central to our understanding of who we are.? The article concludes that property law cannot be understood only through the individualistic aims of capture, and that a perspective of care provides property with a more comprehensive justification of the balance between private and public in a system that allocates common goods to private control.

Full post as published by Legal Theory Blog on September 16, 2010 (boomark / email).