Funktionen einer Eigentumsordnung

Even in its legal meaning, the term “property” has several distinguishable facets. The spectrum of possible concepts comprises property as an absolute right with respect to an object in private law, intellectual property and the distinct concept of property of the Constitution. The possibilities of using property on the one hand, and of legal protection of this property on the other hand, are correspondingly manifold. The question of the ethical legitimacy of private property was traditionally discussed as a problem of distributional justice. The viewpoints range from the unilateral acquisition of property through personal achievement (John Locke) and the freedom- oriented position of Immanuel Kant (“Occupational Theory”) to Karl Marx’ fundamental critique of the contemporary conditions of production and distribution. In von Hayek’s terms, the institutional arrangement of private property has in any event proven to be superior in the intersystem competition. The economic-functional foundation of property is based on value judgments. They can be summarized as the freedom argument, the efficiency argument, the democracy argument and the rule of law argument. This is a concept which simultaneously integrates Pareto efficiency, a contractually founded concept of freedom of action, law and efficiency. The variety of existing types of property and property rights can only be analysed by using more detailed theoretical approaches. The most important one is presumably the transaction cost approach. If a freedom-oriented approach is followed, the yardstick cannot consist in an exogenously posited welfare criterion. The question instead should be: Which institutional arrangement facilitates the realization of transactions?