Book Notes: A Theory of Property. by Stephen R. Munzer.: University of Minnesota Law School

University of Minnesota Law School
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Constitutional Commentary
1992
Book Notes: A Theory of Property. by Stephen R.

Munzer.
Ann M. Burkhart
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Burkhart, Ann M., "Book Notes: A Theory of Property. by Stephen R. Munzer." (1992). Constitutional Commentary. 67.
https://scholarship.law.umn.edu/concomm/67
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Book Notes
A THEORY OF PROPERTY. By Stephen R. Munzer.

Cambridge, England: Cambridge University Press. 1990.
Pp. 491. $50.60.
Rather than examining property theory in a vacuum, Professor

Munzer's stated purpose for this book is to construct a unified the-
ory of property, property laws, and economic systems that will best
serve people as individuals. To that end, Munzer addresses not only
the traditional questions of whether all people should be supplied
with at least the minimum goods necessary for survival and of how
great a disparity should exist between the most and least propertied
members of society, but also the role of property in forming and
reinforcing moral character. Munzer believes that existing property
theories and economic systems pay insufficient attention to this lat-
ter question.
The book's organization and focus reflect this concern for the
individual. After discussing the basic concept of property, Munzer
analyzes a person's ownership rights in his or her body. He con-
cludes that such rights are fairly minimal when compared to the
usual conceptions of ownership rights in external objects. Despite
this conclusion, Munzer believes that ownership plays an important
role in human development. He argues that human interaction
with and ownership of external objects significantly affect personal-
ity development. He also argues that ownership of external goods
plays an important role in satisfying the human needs for control,
privacy, and individuality and in forming and reinforcing moral
character. Like Marx, Munzer believes that private property also
creates the potential for negative consequences, such as alienation
and exploitation. Because of the important overall positive role of
ownership in human development, however, Munzer concludes that
property ownership is justified.
Munzer then examines the factors that should govern decisions
concerning the distribution of property. After criticizing Locke,
Bentham, and Marx for propounding unidimensional perspectives
on ownership, Munzer proposes a pluralist theory. This theory is a
381
382 CONSTITUTIONAL COMMENTARY [Vol. 9:381
combination of factors that have been offered by other theorists for

determining the proper distribution of property-utility and effi-
ciency, justice and equality, and labor and desert-and provides
guidelines for resolving conflicts that may exist among these factors
when applied to a particular problem. Despite Munzer's attempts
to create a systematic and thorough framework for applying these
factors, the resolution of a conflict by means of his pluralist theory
often can become a choice based on personal predilection. As Mun-
zer states: "In the pluralist theory of property advocated here, the
moral judgments are the considered judgments ('intuitions'), of var-
ious levels of generality, about public and private property that
strike one as correct." Munzer claims that, despite the potential
indeterminacy in the theory's application, it at least will eliminate
subjective choices that are based on "bias, prejudice, class associa-
tions, or poor empirical information."
To illustrate the application of his pluralist theory, Munzer
then applies it to selected problems of property distribution, includ-
ing governmental takings of private property. He applies the three
factors that comprise his pluralist theory to provide an analytic
framework for determining when the government should exercise
the power of eminent domain and the appropriate amount of com-
pensation when it does so. His analysis offers only refinements to
the existing literature on these questions, though he does raise the
possibility of paying only partial compensation when doing so
would maximize net gains and minimize net losses. He also raises
the possibility of substituting private insurance for government
compensation, though he acknowledges that such insurance gener-
ally is unavailable. Munzer's discussion of the legal framework also
adds little that is new. He reviews the development of the factors
courts have applied in reviewing takings claims and the tests pro-
posed by some scholars, but he concludes, as have the courts, that
no litmus tests exists for determining when a compensable taking
has occurred.
This book represents an ambitious undertaking to reformulate
the role of property in society. It synthesizes a substantial volume
and variety of sources and is intended for students of philosophy,
law, political theory, the social sciences, and corporate organiza-
tion. The book's effectiveness is undercut, however, by a turgid
writing style.
Ann M. Burkhart*
• Associate Professor of Law, University of Minnesota.

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University of Minnesota Law School

Book Notes: A Theory of Property. by Stephen R.

Follow this and additional works at: https://scholarship.law.umn.edu/concomm

A THEORY OF PROPERTY. By Stephen R. Munzer.

Rather than examining property theory in a vacuum, Professor

combination of factors that have been offered by other theorists for

• Associate Professor of Law, University of Minnesota.

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