This book introduces a normative theory of property. Property laws and social norms are justified by whether and how well they secure natural rights. The natural rights are justified by run-of-the-mill principles of natural law, which evaluate human action by whether it helps people survive or flourish rationally. The book studies how natural rights legitimate property law in general and in specific doctrines. It also studies the main topics in property law and policy – ownership, public commons, the appropriate design of property rights, rights less sweeping than rights of ownership, property torts, regulatory takings, and eminent domain. The book studies in particular the phenomenon of practical reasoning, the sphere of moral reasoning that converts fundamental moral goals into specific laws and policies to enforce in practice. A theory of natural rights contributes importantly to normative theory beyond the theories most respected today – egalitarian or progressive theories, law and economics, and approaches the book calls pragmatic.

This chapter concludes.

Hobbes posed for modernity what we can think of as the puzzle – even the paradox – of sovereignty. The sovereign of a particular polity is the person or body who wields ultimate authority to make law. It follows, he claimed, that the sovereign is legally unlimited. But for Hobbes, any sovereign is legally constituted in that it must comply with what I call the ‘validity mark’ of sovereignty: Legal change must happen in accordance with the criteria of validity. In addition, there is the ‘fundamental legality mark’: To count as an act of sovereign will, a law must be consistent with the laws of nature, in more contemporary terms with the fundamental legal commitments of the legal order. Hobbes’s idea of sovereignty is thus a legal idea, which contrasts with the figure that haunts politics today, the ‘political idea of sovereignty’. I argue that in order to properly oppose the troubling figure of the political sovereign, one needs to have in place not only both marks of sovereignty, but also a political theory of their value. There is a politics to the legal idea of sovereignty.

Good states want to increase the well-being of their citizens, and act to do this. Insofar as state efforts constrain action for the sake of well-being, however, there is a danger that these constraints will limit liberty in a way that actually undercuts the individual achievement of well-being. If we limit liberty in order to bring us to one desirable state (say, good health) that doesn’t necessarily increase well-being if the loss of liberty in itself diminishes well-being. However, when we consider the three major theories of well-being, hedonism, desire-satisfaction, and objective list theories, we see that there is nothing in the loss of liberty that necessarily diminishes well-being at all. It depends on what that loss brings about. Sometimes liberties make us better off, but it depends on the specific liberty and what it contributes. There is nothing about loss of liberty per se that does us any harm.

European arrival brought many hardships for tribes; however, tribes seized the new opportunities that arose. Tribes incorporated guns, horses, and other items into their cultures. Moreover, tribes organically modified their economic practices to effectively trade with Europeans. Tribal cultures influenced Europeans too. Europeans adopted Indigenous foods, medicines, housing, and political ideals.

Books on vehicle attitude and motion often use tensors in their analyses, and I have discussed the reasons for that in a previous chapter. But tensors also carry an esotericism arising from being used to quantify the curved spacetime of general relativity. And so I end the book by telling the inquisitive reader how tensors ‘work’ more generally, and how this more advanced topic makes quick work of calculating the gradient, divergence, laplacian, and curl of vector calculus. I end with a discussion of parallel transport, which has found its way into the exotic ‘wander azimuth’ axes used in some navigation systems.

Americans remained hungry for tribal land, and Congress’s newly discovered plenary power enabled Congress to enact the General Allotment Act of 1887 (GAA). The GAA was designed to open tribal lands to white settlement and convert Indians into farmers. To do this, Indian head of households were given 160-acre parcels of land. The land was placed in trust for twenty-five years. At the period’s conclusion, Indians were supposed to become American citizens. Lands remaining after Indians received their 160-acre parcels were opened to white settlement. Tribes resisted allotment; however, the Supreme Court ruled Congress possessed “paramount power over the property of Indians.” The federal government’s efforts to assimilate Indians included removing Indian children from their parents and sending them to distant boarding schools. Boarding schools were intended to “Kill the Indian in him, and save the man.”

This chapter studies doctrines that consolidate different real-world resources into different res in property law. Some such doctrines classify individual real-world resources as separate res; others consolidate several resources into single res in law. The requirements for natural property rights, namely, claim communication and productive use, provide satisfying foundations for thing design doctrines. The doctrines are then implemented in law and policy via practical reason. This chapter studies doctrines associated with accession, specification, confusion, fugitive or fugacious minerals, the ad coelum maxim, the ratione soli maxim, and fixtures. This chapter also studies how property in land, water flow, and chattels all limit one another. This chapter also studies contemporary policy debates about hydraulic fracturing, including property in oil and natural gas trapped in shale or “tight” rocks.

Chapter 6 moves further into the postarrest setting, using as a springboard the findings and recommendations of the American Bar Association’s Death Penalty Moratorium Implementation Task Force for the state of Florida, which I chaired. At the time of our report, twenty-two people had been released from death row on the ground they had been wrongfully convicted. Relying on an analysis of caselaw, studies, news reports, and interviews, we described the flaws in Florida’s death penalty law and practice that contributed to these injustices. This chapter summarizes and updates the findings of the Task Force in several areas: the analysis of scientific evidence; the conduct of prosecutors; the qualifications, reimbursement, and competence of defense attorneys; the decision-making process of judges; the structure and decision-making process of capital sentencing juries; the clemency process; the system’s reaction to the race of the victim; and the treatment of people with mental disability. This chapter also documents that the failings it recounts – including incompetent forensic labs, prosecutors intent on winning at all costs, underpaid and overwhelmed defense attorneys, juries uncertain about their roles, and judges and governors driven by the next election – afflict many other state systems, in noncapital as well as capital cases. The recommendations of the Task Force, also reported here, would significantly improve the accuracy of criminal adjudications across the country.

Constitutions set out fundamental principles of political morality that bind institutional action and assign strong political rights to individuals. At surface level, the principle of proportionality is a methodological device. It operates as a doctrinal heading under which courts scrutinize state interference with individual liberty and assess the scope of their own authority. According to the orthodox understanding of proportionality, this scrutiny takes the form of balancing rights against public interest, which raises questions about the legitimacy of judicial review. This chapter argues that, contrary to the orthodox view, proportionality is primarily about the normative foundations of constitutional rights and the duty of courts to pursue, through principled legal reasoning, the moral truth about individual rights. On this rival account of proportionality, rights are equality-based moral norms constraining state action and no actual balancing takes place by courts. If we are to take seriously both the idea of fundamental rights and the principle of proportionality, we must abandon the misleading metaphor of balancing and the problems of incommensurability and judicial scepticism to which it leads.

The distinct prohibitions of torture and other forms of ill-treatment have crystallized as customary international law as the chapter discusses. In the specific case of torture, its prohibition is also a peremptory (jus cogens) norm of international law – a rule that is applicable in all circumstances and in any place. The chapter also discusses the geographical, material, personal, and temporal jurisdiction of the prohibitions of torture and other ill-treatment under international law more generally.