It is said that hard cases make bad law. But one of our tasks in jurisprudence is to consider the justification of legal institutions. If this enterprise is to be conducted in a spirit of argument rather than ideology, then hard cases—indeed the hardest cases—must be our primary point of reference. To undertake with any integrity to defend an institution, one must be willing to contemplate the existence of serious moral objections. In many cases, that involves confronting the possibility that the institution under discussion has an unacceptable impact on people’s lives—that it imposes unbearable costs, for example, or unacceptably constrains their freedom or their dignity. To defend an institution in an ideological way is to ignore or conceal such possibilities. Justification, by contrast, involves a willingness to confront the issue of unacceptable hardship. Its success (if indeed the institution is justified) turns on one’s ability to show that the hardship will not in fact occur, or that it is unavoidable or for some other reason not morally unacceptable in the circumstances.

The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use. When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves “to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole.” To determine when a regulation amounts to a “taking” of property requiring compensation, the Court has rightly stated that the ultimate question is whether the burden of regulation has been unfairly placed on a small class of individuals rather than the public at large. To answer this question, the Court has identified a variety of factors to consider, including the character of the governmental action, (whether the regulation effects a permanent physical invasion, destroys a core property right, or is intended to prevent public harm), whether the regulation interferes with reasonable investment-backed expectations, and the extent of the diminution in value of the property (particularly whether the regulation deprives the owner of any economically viable use of the property).

Between March 21,1992 and April 14,1992 Canadians witnessed a remarkable proliferation of controversy on the pages of The Globe and Mail. The issue was “cultural appropriation” or “appropriation of voice” in fictional and nonfictional writing. Articles, editorials, and letters to the editor considered the propriety of depicting a culture other than one’s own, telling “someone else’s story”, and whether it was possible to “steal the culture of another.” The debate was remarkable because of its emotional intensity, the absurdity of the analogies drawn in support of the respective arguments, and the inability of the protagonists to recognize each other’s terms of reference. Especially striking were the rhetorical tropes of possessive individualism adopted by all participants in the discussion.

It is often assumed that there is an important conflict, perhaps even a contradiction, between claims to private property in land, on the one hand, and claims of public access to it, on the other. The conflict is manifest in the dispute, common to many industrialised countries, between those who have private property in land and those who claim access rights to that land for recreational purposes. The first aim of this essay is to clarify what is involved if this conflict is to be understood as taking place at the level of normative justification. Our focus is therefore narrow because we ignore other grounds which, though they need not necessarily ignore normative justification, do not regard it as central to an account of the genesis and existence of the conflict. So, for example, the conflict might be solely or mainly a product of self-interested pressure group politics or ideological dispute.

A “human being,” Kant writes, “is not entitled to sell his limbs for money, even if he were offered ten thousand thalers for a single finger” (LE 124). This arresting statement is part of a broader position of Kant’s according to which persons lack property rights in parts of their own bodies. One can find in his work at least three arguments in support of this position. One is an argument from human freedom. It is riddled with difficulties. The second is an argument from humanity and dignity. It has general appeal but does little to justify Kant’s verdict on some of his own examples. The last is an argument from self-respect. It has some force. Yet, unless one tempers the Kant of moral opinion with the Kant of moral theory, this argument sometimes delivers unacceptable answers to casuistical questions.

The problem of what property is or should be can take many different forms. The debate can focus on what kinds of powers or entitlements should flow from defining an object as someone’s property, or what the grounds are for limitations on those powers and entitlements. One can ask whether the right to property is the sort of right that should be treated as a constitutional right. One can focus on how to define the contours of a particular kind of property, like land or copyright. Or one can ask what sorts of things should be treated as property. And in fact a legalregime of property rights cannot avoid at least some of these questions; they are entailed in the task of defining and subtly redefining property that is inherent in the ongoing process of adjudication.

The few remarks on property that are found in the Essays on the Active Powers of the Human Mind of the eighteenth century Scottish “Common Sense” philosopher, Thomas Reid, have led at least one commentator to treat him as a fairly traditional advocate of the natural right to (private) property, albeit one with a concern for the very poor. In an article on William Paley and the rights of the poor, Thomas Home remarks in passing that Reid’s (and Adam Ferguson's)