Common Good Constitutionalism and the Individual—A Property Perspective

Abstract This paper probes the position of the individual, and of their interests and rights, within a common good constitutionalism framework. To do so, it draws on long-running debates within property law and theory concerning the relative priority to be afforded to the individual and to the common good, with many of the concerns of Common Good Constitutionalism already in the mainstream of property law and theory. It compares debate about the existence, nature, and content of property’s “social function,” and its doctrinal manifestations, to Vermeule’s broad arguments about the common good dimensions of constitutionalism. Specifically, it analyzes the effectiveness and purpose of an “internal limitation” strategy, and the risk of excessive individual subordination to collective interests. Finally, it assesses how central a role coercive legal measures should play in encouraging virtuous conduct within a common good constitutionalism framework.