The Kantian theory of Property Rights and the Instrumentalist Critique

Owing to the work of scholars such as Ripstein, Weinrib and others, the  Kantian theory of private law has established itself as a prominent focal point for private law scholarship, in particular for property law theorists. Yet even its proponents accept that it makes claims that are, prima facie at least, mysterious or difficult to defend, and that making sense of it involves a great deal of elaboration and re-formulation. In this paper the author sets out the Kantian scheme, and then makes some root and branch criticisms of it. These criticisms suggest that the alternative, ‘instrumentalist’, theory of law is the only plausible alternative.