Fiduciary-Republican Property. From the Ancient Dominium to Modern Constitutionalism

Abstract

Can property ownership be essentially equated with the absolute and individual right to exclude others from a resource? By critically assessing this question, this article reconstructs the republican conception of property, explaining the way it was formerly shaped by the ancient natural law, and then by the Lockean tradition. Both intellectual and conceptual influences molded modern republican's property conception as a kind of fiduciary relationship, namely, as an institutional and juridical agreement between a trustor or principal and its trustees or agents with overlapped and interdependent interests, necessities, and rights. This view differs from the so-called “classical liberal property” commonly understood as an absolute dominium relying on an individual and exclusivist right enabling their holder to freely alienate and freely accumulate material things. The article concludes by suggesting that important legal areas of our contemporary market societies are certainly established in accordance with this republican-fiduciary conception of property rights.