Preliminary Jurisprudence Paper Topic

The following represents my basic concept for a paper topic. It is admittedly wide-ranging in time, but I believe that it can be focused topically in a very apt manner. I intend to refine and restate this concept further over the next few days, leading to a final paper topic statement by this Monday.

I intend to treat of the idea of the right to property (i.e., as estate) as (1) an immutable right under natural law, as (2) a creature of social contract, and as (3) a creature of positive law, together with various jurisprudential implications of these three traditions. Conceptually and doctrinally, my material will be roughly threefold: (1) property as a natural right in a late medieval and/or “silver age” Scholastic philosopher (Ockham, Vitoria, Suarez?); (2) property as a natural right in early modern social contract theory (Grotius and/or Locke); (3) property as a fundamental right (or not) in Welfare State legal philosophy (Lochner, New Deal, Rawls). I expect to distinguish these three jurisprudential approaches are more or less representative of (1) medieval Christendom, (2) political liberalism, and (3) socialism. I expect to apply this material to two historical problems: (A) late-medieval debates on ecclesiastical property (i.e., on whether the Church necessarily requires jurisdiction over property in order to realize its mission in the world) and (B) twentieth-century debates over substantive due process (i.e., over whether property rights are necessarily part of those rights and liberties guaranteed under the Amendments to the U.S. Constitution). I believe that there is a hitherto overlooked parallel between problems (A) and (B) inasmuch as the liberties secured by the medieval Western Church (e.g., as set forth in the opening §§ of the Magna Carta) have served, historically, as prototype for those liberties acquired by individuals over that long liberal march of progress. See Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition. I expect to conclude with very pointed criticisms of the Court-packing crisis of 1937, from the standpoints of traditions (1) and (2), but also with a renewed appreciation for the limitations of traditions (1) and (2), as cogent jurisprudential and viable philosophical alternatives for postmodern man, in the face of starkly changing social conditions.

I expect that this research will be practically helpful inasmuch as it should directly inform my understanding of Rawls’ two principles of justice and indirectly contribute to my understanding of Aristotle’s conception of justice as set forth in Nicommachean Ethics, V.

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