Junius has another great article (it seems somehow dismissive to call it a post) on property, in a dialog with Tom Palmer, who I believe comes off the loser in this exchange.
Junius key point:
Nevertheless, property is a complex set of relationships, and I dont see that the fact that people can and do establish such conventions settles either the extent of what people may justly hold or whether they have full liberal property rights in their holdings.
Though I accept that there are limits on what states may justly do, when we have a state that functions as a proper constitutional democracy it seems right that it may properly modify and adjust the property regime in place in order to achieve desirable goals. So, for example, in the United Kingdom, buildings of great historic or achitectural interest are listed and may not be modified or demolished by the owner without the consent of local government. Similarly people are required to maintain their motor vehicles to a certain standard if they are to be used on the public roads. All such measures constitute encroachments on full liberal rights of ownership: it would strike me as an extreme view that no such measures are ever justified. Further, more serious encroachments occur when the state uses its legislative power to compel owners of land to sell in order to facilitate a major scheme of public works. If the British Parliament had required the railway companies to negotiate individually with every single landowner, the railways would never have been built.
This in reply to Palmer:
Junius, along with such other estimable thinkers as Cass Sunstein and Stephen Holmes and Thomas Nagel and Liam Murphy (and many, many other college professors who have, it seems, pledged their lives to undermining private property), has gone from acknowledging that property is an institution of social cooperation to asserting that it is the creation of a particular organization, and further, that that organization, as the alleged creator of property, is the rightful owner of all the property and empowered accordingly to distribute its benefits as its principals see fit. It is, according to Junius, “open to us to design the property regime (and the accompanying legal system, etc., etc.) with a view to the social outcomes we might expect it to yield.” That is, it is open to “us” acting in our capacity as citizens of a democratic state, to design the property regime as we see fit, or to regard all rights as “socially negotiable.” But, A) the institution of property and its enforcement should not be confused with the state, and B) even if the state were the sole creator and protector of property rights, it would not follow from that that it would be entitled to all of the benefits accruing to property.
The issue which Palmer misses is that there are social organizations call them nations which predate the modern conception of the law-driven state, and that the state typically is a rationalized, formalized version which evolved from a social organism which was a nation. There was a France before there was a Republic, and while the Republic attempted to graft new ideas and social structures on the old social characteristics of the Ancien Regime and the Frankish nation which became it.
Where most social theorists fail is in misunderstanding and mistrusting history, and the accretive nature of social change. They believe and I believe this core belief is closely tied to the Romantic ideal that they can will new social orders into existence. In this model, the institution of property does not emerge gradually, become rationalized as society moves to a formal structure of laws, and then represent the interaction of ancient social conventions and modern formal/legalistic ones. It is an either/or; granted by God as a precondition to human existence, or an arbitrary construct designed as a part of a conceptual political and legal regime (c.f. Rawls).
The obvious answer is that it is neither; property is, like all aspects of human politics and society, a dynamic, evolving, historical event. By that I mean that it is historical, in that it has specific meanings at a specific point in space and time; it is evolving, which means that what property is today is related to and probably not too far from what property was a moment ago; and it is dynamic, in that what we consider property to be today is different than it was a month ago (hardly at all), a year ago (slightly), a hundred years ago (somewhat).