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Joseph W. Singer, Democratic Property: Things We Should not Have to Bargain For, in Research Handbook on Private Law Theory 220 (Hanoch Dagan & Benjamin C. Zipursky eds., 2020).

Abstract: Property rights in a free and democratic society are built on - and limited by - the values of liberty, equality, and democracy (among other norms). Those values define the types of property relationships that can be legally recognized, outlawing relationships of servitude, class distinctions, and caste assignments typical of nondemocratic societies. Property law defines things we should not have to bargain for. Property rights are partly defined by judges in common law rules and partly by elected representatives. Regulatory rules chosen by legislatures reflect the collective choices of citizens in setting minimum standards for social and economic relationships compatible with the norms of a society of free and equal human beings. While values like liberty and equality are essentially contested and open to interpretation, they place real limits on property law, ensuring a foundation for market relationships, while framing debate about contested issues. Contract law can rest on a norm of freedom to contract (and not to contract) only because property law and property law norms create a foundation that protects rights we should not have to bargain for when we enter the marketplace. And free and democratic societies cannot function with extreme inequality that undermines social relationships and warps political institutions.