Doing justice to property A capability theory for legal property design

The relationship between property rights and distributive justice presents a fundamental dilemma. Property rights enhance autonomy, freedom, and economic efficiency, yet they can also concentrate wealth and restrict access to essential resources, reinforcing inequality. As global disparities grow, it becomes increasingly urgent to reconsider property’s role in distributive arrangements – and to explore how it can both advance and obstruct justice.
This thesis re-examines this dilemma. It approaches property as a legal institution: a coherent system of rules, rights, and powers that determines access to and control over resources. It investigates how the legal design of rights over resources can contribute to – or undermine – a just distribution of opportunities.
Three major strands of property theory are analysed: Dominium Property Theory, Economic Property Theory, and Progressive Property Theory. The latter offers the most promising basis for addressing distributive challenges, particularly when combined with the capability approach as developed by Amartya Sen. This study goes further by fully integrating that approach into its core theoretical framework, highlighting property’s role in converting resources into capabilities – real freedoms for individuals to do and be certain things.
A case study is used to illustrate how specific property incidents – such as rights to use, manage, or profit from housing – affect the basic capability to be adequately housed. The study identifies structural barriers to justice, including unaffordability, insecure tenure, and speculative practices.
The dissertation proposes a three-step approach for legal property design: defining normative goals, assessing the capability impacts of property incidents, and implementing targeted legal changes. By reframing property as a tool for steering distributions, this research advances legal scholarship with a framework for more just legal property design.