A few questions about the socialobligation norm

Cornell Law Review

Volumn 94, Issue 4, 2009, Pages 949-958

  Purdy, Jedediah ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 68949103462     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (42)

1. See JOHN RAWLS, A THEORY OF JUSTICE 78-81 (rev. ed. 1999);
2. AMARTYA SEN, DEVELOPMENT AS FREEDOM 74-77 (1999).
3. I have discussed this issue as one internal to the development of the American property regime in Jedediah Purdy, People as Resources: Recruitment and Recipocity in the Freedom-Promoting Appoach to Property, 56 DUKE L.J. 1047 (2007).
4. For a view of die same issue that is more concerned to define the limits of that regime's appropriate operation, see MARGARET JANE RADIN, CONTESTED COMMODITIES 16-101 (1996) (surveying reasons against extending the domain of property).
5. As to the normative basis of the prohibition, I find it uncontroversial that a demonstration diat slavery would increase utility, according to the relevant formula (total maximization, maximum average, a distribution-sensitive formula, or whatever else), would not be taken as sufficient reason to reinstate it. For a satirical treatment of this issue offering a Swiftian proposal to reinstitute slavery as a development tool, see Press Release, World Trade Org., WTO Announces Formalized Slavery Model for Africa (Nov. 13, 2006), available at http://www.gatt.org/wharton.html. As to the matter of the historical causation of abolition, recent work tends strongly toward the view diat abolition cannot be explained by pursuit of material welfare (one standard proxy for utility) and instead represented a triumph of a new conception of equal human freedom.
6. See DAVID BRION DAVIS, INHUMAN BONDAGE: THE RISE AND FALL OF SLAVERY IN THE NEW WORLD 231-49 (2006) (surveying historiographie work done in recent decades).
7. For discussions of common carrier duties, see 3 WILLIAM BLACKSTONE, COMMENTARIES *164-66 (setting out the traditional common-law view); A.K Sandoval-Strausz, Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America, 23 LAW & HIST. REV. 53 (2005) (arguing that the doctrine had a relatively restricted scope in the nineteenth century) ;
8. Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. REV. 1283, 1292-94, 1303-48 (1996) (arguing that die doctrine represented a strong limit on owners' exclusion power in die earlier decades of the nineteenth century). For civil rights exclusions, see Fair Housing Act, 42 U.S.C. §§3601-19 (2006).
9. 277 A.2d 369, 374-75 (N.J. 1971).
10. See id.
11. For a discussion of the social vision behind this principle, see EMMA ROTHSCHILD, ECONOMIC SENTIMENTS: ADAM SMITH, CONDORCET, AND THE ENLIGHTENMENT 7-15 (2001) (describing the moral aims of Adam Smith's reformist program). I have developed this argument with particular reference to property regimes in Purdy, supra note 2, at 1079-1100.
12. See Gregory S. Alexander, The Social-Obligation Norm in American Properly Law, 94 CORNELL L. REV. 745, 774 (2009) ("[A]n owner is morally obligated to provide to die society of which the individual is a member diose benefits that die society reasonably regards as necessary for human flourishing. These are the benefits necessary to the members' development of those human qualities essential to their capacity to flourish as moral agents and that have some reasonable relationship with ownership of the affected land.").
13. Muller v. Oregon, 208 U.S. 412, 421 (1908).
14. See Franklin D. Roosevelt, Second Inaugural Address (Jan. 20, 1937), in INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES: GEORGE WASHINGTON TO BARACK OBAMA (2009), available at http://www.bartleby. com/124/ ("By using die new materials of social justice we have undertaken to erect on die old foundations a more enduring structure for die better use of future generations.");
15. Woodrow Wilson, First Inaugural Address (Mar. 4, 1913), in INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES, supra ("Our duty is to cleanse, to reconsider, to restore, to correct die evil without impairing the good, to purify and humanize every process of our common life without weakening or sentimentalizing it").
16. See Purdy, supra note 2, at 1079-1100.
17. See generally Jedediah Purdy, A Freedom-Promoting Appoach to Property: A Renewed Tradition for New Debates, 72 U. CHI. L. REV. 1237, 1242, 1297 (2005) (arguing in favor of a "freedom-promoting conception of property" that "centers on the development of capabilities, with special emphasis on expanding people's set of viable choices and replacing relations of domination and subordination with reciprocity" (emphasis omitted)).
18. For a discussion of the Kantian project of moral justification in contrast to that of Hegel, see CHARLES TAYLOR, HEGEL 365-78 (1975).
19. See ALASDAIR MACINTYRE, DEPENDENT RATIONAL ANIMALS: WHY HUMAN BEINGS NEED THE VIRTUES 71-74 (1999) (discussing die character of human interdependence);
20. TAYLOR, supa note 12, at 365-78; CHARLES TAYLOR, Atomism, in POWERS, POSSESSIONS, AND FREEDOM 39, 55-57 (Alkis Kontos ed., 1979).
21. See sources cited supra note 11.
22. See CHARLES TAYLOR, Comparison, History, Truth, in PHILOSOPHICAL ARGUMENTS 146, 164 (1995) (arguing that an understanding of multiple cultures is important "[n]ot only to avoid political and military conflict where possible, but also to give people of every culture some sense of the immense gamut of human potentialities");
23. TAYLOR, Explanation and Practical Reason, in PHILOSOPHICAL ARGUMENTS, supra, at 34, 58-59 [hereinafter TAYLOR, Explanation and Practical Reason] (arguing that individuals who have an understanding of multiple cultures "have a truer grasp of die human condition than those for whom alternative ways are utterly inconceivable").
24. See CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY 81-106 (1989) (giving a critical but respectful account of the ambition of universalism in contemporary moral thought).
25. See id. at 53-107;
26. see also CHARLES TAYLOR, MODERN SOCIAL IMAGINARIES 1-30 (2004) (setting out the idea of a social imaginary in relation to the program of articulation).
27. I give some concrete examples of how this might work in relation to women's participation in labor markets in Purdy, supra note 2, at 1101-07.
28. See GREGORY S. ALEXANDER, COMMODITY & PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT, 1776-1970 (1997).
29. For instances of this idea, see Abraham Lincoln, Address Before the Wisconsin State Agricultural Society (Sept. 30, 1859), available at http://www.nal.usda.gov/speccoll/ exhibits/lincoln/lincoln-wisconsin.html (praising the principles of free labor as aligning reward with desert in almost all cases);
30. see also ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 155, 164 (1988) (quoting Nordiern Republicans on the virtues of the system).
31. See TAYLOR, supra note 16, at 57-58 (setting out what he calls the "best account" principle).
32. See Alexander, supra note 8, at 765 ("[A] proper concern for human autonomy requires looking beyond mere functionings to include the capabilities that various social matrices generate for their members.").
33. I give an interpretation of these aspects of American tradition in JEDEDIAH PURDY, A TOLERABLE ANARCHY: REBELS, REACTIONARIES, AND THE MAKING OF AMERICAN FREEDOM (forthcoming 2009) (manuscript at 25-32, 43-45, 184, on file with author).
34. Consider this presentation of Bentham's thought and motives by commentator of mixed sympathy: In the eighteenth century the most active instinct was that of reaction against theological tyranny and against social injustice. Hence the fashionable moral theory was that which asserted, in the crudest form, the right of man to enjoy himself in this life and the right of every man to an equal chance of enjoyment. F.C. Montague, Introduction to JEREMY BENTHAM, A FRAGMENT ON GOVERNMENT 1, 35 (F.C. Montague ed., Oxford, Clarendon Press 1891) (1776).
35. See LIONEL ROBBINS, AN ESSAY ON THE NATURE & SIGNIFICANCE OF ECONOMIC SCIENCE 1-21, 104-58 (2d rev. ed. 1952).
36. See id. at 140 ("There is no way of comparing the satisfactions of different people.").
37. See id.; see also Lionel Robbins, Interpersonal Comparisons of Utility: A Comment, 48 ECON. J. 635, 637 (1938) (noting that this idea could render the entire "science" of economics useless).
38. See AMARTYA SEN, The Possibility of Social Choice, in RATIONALITY AND FREEDOM 65, 92-94 (2002) (explaining that the liberal paradox theorem "shows the impossibility of satisfying even a very minimal demand for liberty when combined with an insistence on Pareto efficiency (given unrestricted domain)").
39. Id. at 77-92.
40. See Alexander, supra note 8, at 815 ("[A]utonomy interests will limit the social-obligation norm if no equivalently weighty countervailing interests are present").
41. See ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118,131 (1969) ("I wish, above all, to be conscious of myself as a thinking, willing, active being, bearing responsibility for my choices and able to explain them by references to my own ideas and purposes. I feel free to the degree that I believe this to be true . . . .").
42. See CHARLES TAYLOR, Irreducibly Social Goods, in PHILOSOPHICAL ARGUMENTS, supa note 15, at 127.