On Corrective Justice and Rights in Property: A Comment on Property Law and Social Morality


This Review Essay was prepared for a 2014 author-meets-readers Symposium at Texas A&M School of Law on Peter Gerhart’s book Property Law and Social Morality.  The book constitutes an exercise in cross-pollination; it draws on philosophical scholarship about corrective justice in tort to describe, justify, and critique property. Property Law and Social Morality is original and interesting because it steers a helpful middle course between lay and libertarian attitudes toward property on one hand and the more communitarian attitudes reflected in progressive property scholarship on the other.  Complications arise in some parts of the book’s argument, however, because tort and property scholars tend to assume different meanings and bounds for corrective justice and distributive justice.  And a corrective justice account of property is bound to be more limited than a corresponding account of tort.  Corrective justice doesn’t cover all of morality, and especially not all the portions a theory of morality needs to structure property rights.  The Essay illustrates with examples from: nuisance cases about access to light; trespass cases involving migrant-residents’ rights to invite lawyers or social service workers to meet them at their residences; the rules regulating use rights and ouster in cotenancies; and American eminent domain practice.