The three lectures are -
1 The Classical Lockean Picture and its DifficultiesWaldron notes that -
2 Unraveling the Form and Substance of Property
3 The Rule of Law, Property, and Legislation
The idea in these lectures is to discuss the relation between property and the rule of law in a deeper way than this has been discussed in the past, in particular in a way that reflects realistic understanding of how property rights are created and modified. I use the Lockean phrase "the measure of property" but the gist of my argument will be that our thinking about the rule of law needs to focus on all the ways in which property is non-Lockean in its origin, legal status, and moral force. In the course of doing this, I will be looking at some of the rather naive assumptions underlying the tight connection that has been forged between property rights and the rule of law in neo-liberal political economy. And I will argue that we can abandon or modify some of these naive assumptions about property without compromising the very great importance that is properly attached to the ideal of the rule of law.In discussing Rule of Law (with a reference to Dworkin's Justice For Hedgehogs, recently noted here) he comments that -
The Rule of Law is one star in a constellation of ideals that dominate our political morality: the others are democracy, human rights, and economic freedom. We want societies to be democratic; we want them to respect human rights; we want them to organize their economies around free markets and private property, and we want them to be governed in accordance with the Rule of Law. But constellations can deceive us. The juxtaposition of stars in a constellation is not necessarily indicative of their proximity to one another. Their apparent proximity may just be an artifact of where they present themselves in our visual field — the sky, as we call it, which for us is basically two-dimensional even though in astronomical fact it reaches in a third dimension away from us almost to infinity.Waldron explains that -
And so too in the constellation of our ideals. We think of democracy and the Rule of Law or human rights and the Rule of Law as close, even overlapping ideals. But it may be important to maintain a sense of the distance between them. There are multiple ways in which we evaluate social and political systems, multiple ways in which social and political structures may respond to or excite our concerns, and unless we buy into a very general holism — something like the position put forward in Ronald Dworkin's new book, Justice for Hedgehogs, in which all our ideals, however scattered, come down more or less to the self-same thing — there is not a lot to be gained by collapsing any one of them into any of the others.
There are three lectures in all. Unfortunately the original lecture titles are not a good indication of the eventual contents.
Lecture 1 was called "The Classical Lockean Picture and its Difficulties" and it mainly addresses the alleged contrast between (a) the rule of law and (b) rule by law, and the suggestion that property rights might be privileged under (a). It explores Richard Epstein's version of this idea and then it spends some time on the Lockean account of property. The argument is that in the real world even Lockean property has an inescapable public law dimension.
Lecture 2 was called "Unraveling the Form and Substance of Property," but it is really about the contrast between formal/procedural and substantive views of the rule of law and the dificulties inherent in identifying respect for private property rights as a substantive dimension of the rule of law. The argument is that given the accordion-like expandability of the category of property, this cannot work to privilege property rights over other legal rights etc.
Lecture 3 was called "The Rule of Law, Property, and Legislation" and it is a defense of legislation, including regulatory and redistributive legislation in light of the rule of law.
Readers should note that although I spend a lot of time discussing the fact situation in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), these lectures are not lectures in American constitutional law, nor do they aim to build pathways through the swamp of US takings jurisprudence
