Pluralism and property

Fordham Law Review

Volumn 80, Issue 3, 2011, Pages 1017-1052

  Alexander, Gregory S ^a  

^a Department of Obstetrics Gynecology   (United States)

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EID: 84855494335     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (81)

1. Not that it ever was. Welfarism, or, more simply, law and economics, has had at least two other competitors in American property theory. Personhood theory, most commonly associated with the well-known work of Margaret Jane Radin, see, e.g., Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982), whose views I discuss in Part II. B.4, is an alternative to welfarism. However, for various reasons, not the least of which was the fact that, unlike welfarism, the personhood theory is not and does not purport to be a comprehensive theory of property, I do not consider the personhood theory to be a true competitor with welfarism or social obligation theories. Both at a positive and normative level, its force is limited. Its ambition is more limited than that of the social obligation theories I examine in this Article. The second alternative to welfarism in modern American property theory is libertarianism. The most notable exemplar of a libertarian view of property is Richard Epstein, whose work I briefly discuss in Part III. B. As others have noted, however, Epstein's libertarianism is leavened with a good measure of utilitarianism. Barbara Fried has recently argued that the same is true of Robert Nozick, who is also commonly identified as libertarian.
2. See Barbara Fried, Does Nozick Have a Theory of Property Rights? (Stanford Pub. L. & Legal Theory Working Paper Series, Research Paper No. 1782031, 2011) available at http://ssrn.com/abstract=1782031.
3. See, e.g., Eric Claeys, Virtue and Rights in American Property Law, 94 CORNELL L. REV. 889 (2009);
4. Henry E. Smith, Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law, 94 CORNELL L. REV. 959 (2009);
5. Katrina M. Wyman, Should Property Scholars Embrace Virtue Ethics? A Skeptical Comment, 94 CORNELL L. REV. 991 (2009).
6. Given their express commitment to maximizing social welfare, welfare theorists would seem to be value monists. See Roger Crisp, Weil-Being, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (rev. Dec. 9, 2008), http://plato.stanford.edu/ archives/fall2011/entries/wellbeing/. Although they may take cognizance of putative values, such as pleasure, friendship, health, and so on, they treat these as only instrumental values rather than ends themselves. Moreover, welfare theorists consider these instrumental values to be fully commensurable, indeed reducible to a common metric. As I discuss in Part I, these are characteristics of value monism.
7. Professor Hanoch Dagan has argued, correctly in my view, that property theorists must also be clear about their position regarding monism or pluralism in a structural sense; that is, whether property law facilitates diverse social and resource realms (say, a la Michael Walzer, the domestic realm, the commercial realm, the realm of intellectual property, the realm of residential rental property, and so on), each of which is governed by a different value or balance within a set of values, or on the other hand, whether all of property law is structured around a single core principle or right, such as the right to exclude. Although I agree entirely with Professor Dagan in rejecting structural monism, my focus in this Article is principally on value monism and pluralism. As Professor Dagan points out, structural pluralism can rely on a pluralist theory of value. See Hanoch Dagan, Pluralism and Perfectionism in Private Law, 10-11 (June 20, 2011) (unpublished manuscript), available at http://ssrn.com/abstract=1868198.
8. See Elinor Mason, Value Pluralism, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (July 29, 2011), http://plato.stanford.edu/archives/fall2011/entries/value- pluralism/.
9. Rosalind Hursthouse, Virtue Ethics, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (July 18, 2007), http://plato.stanford.edu/archives/fall2011/entries/ethics- virtue/.
10. See Walter Sinnott-Armstrong, Consequentialism, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Feb. 9, 2006), http://plato.stanford.edu/archives/fall2011/entries/ consequentialism/#WhaGooHedVsPluCon
11. (citing GEORGE EDWARD MOORE, PRINCIPIA ETHICA 83-85, 194 (1903)).
12. IMMANUEL KANT, Groundwork of the Metaphysic of Morals, in THE CAMBRIDGE EDITION OF THE WORKS OF IMMANUEL KANT: PRACTICAL PHILOSOPHY 37, 78 [4:428-29] (Mary J. Gregor ed. & trans., 1996).
13. see also Amartya Sen, Capability and Weil-Being, in THE QUALITY OF LIFE 30, 32-33 (Martha Nussbaum & Amartya Sen eds., 1993).
14. Judith Jarvis Thomson, The Right and the Good, 94 J. PHIL. 273, 275-76 (1997).
15. See R. Eugene Bales, Act-Utilitarianism: Account of Right-Making Characteristics or Decision-Making Procedures?, 8 AM. PHIL. Q. 257, 261-63 (1971).
16. See, e.g., Robert C. Ellickson, Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics, 65 CHI.-KENT L. REV. 23 (1989).
17. EDWARD KLEBAN, One, on A CHORUS LINE (SONY MUSIC ENTM'T 1975).
18. M. C. Mirow, The Social-Obligation Norm of Property: Duguit, Hayem, and Others, 22 FLA. J. INT'L L. 191, 192 (2010)
19. (quoting UGO MATTEI, BASIC PRINCIPLES OF PROPERTY LAW: A COMPARATIVE LEGAL AND ECONOMIC INTRODUCTION 31 (2000)).
20. See Charles A. Reich, The New Property, 73 YALE L. J. 733 (1964);
21. See Jane B. Baron, The Contested Commitments of Property, 61 HASTINGS L. J. 917, 919 (2010).
22. See Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 737-39 (1998);
23. Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV., 1849, 1857, 1861-62 (2007).
24. See Gregory S. Alexander, The Complex Core of Property, 94 CORNELL L. REV. 1063 (2009).
25. See Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. 745, 757 (2009).
26. See, e.g., Margaret Jane Radin, Justice and the Market Domain, in MARKETS AND JUSTICE: NOMOS XXXI, at 165 (John W. Chapman & J. Roland Pennock eds., 1989);
27. Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667 (1988).
28. HANOCH DAGAN, PROPERTY: VALUES AND INSTITUTIONS (2011).
29. Hanoch Dagan, Remedies, Rights, and Properties, 4 J. TORT L., no. 1, 2011, at 1.
30. JOSEPH RAZ, THE MORALITY OF FREEDOM 399 (1986).
31. (quoting Cass Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 796 (1994)).
32. ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 49 (1993).
33. In more recent general (i.e., not property-specific) writing, Singer, together with Martha Minow, has unambiguously endorsed value pluralism. See Martha Minow & Joseph William Singer, In Favor of Foxes: Pluralism as Fact and Aid to the Pursuit of Justice, 90 B. U. L. REV. 903, 903 (2010).
34. See JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 25-28 (2000).
35. Singer has frequently quoted this line from the New Jersey Supreme Court's opinion in State v. Shack, 277 A.2d 369, 372 (N. J. 1971): "Property rights serve human values. They are recognized to that end, and are limited by it"
36. JOSEPH WILLIAM SINGER, THE EDGES OF THE FIELD 1 (2000).
37. The example is drawn from Friendswood Development Co. v. Smith-Southwest Industries, 576 S. W.2d 21, 22-23 (Tex. 1978).
38. See Joseph William Singer, Democratic Estates: Property Law in a Free and Democratic Society, 94 CORNELL L. REV. 1009, 1047 (2009).
39. See Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72 U. CHI. L. REV. 1237 (2005) [hereinafter Purdy, A Freedom-Promoting Approach];
40. Jedediah Purdy, People as Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to Property, 56 DUKE L. J. 1047 (2007) [hereinafter Purdy, People as Resources].
41. JEDEDIAH PURDY, THE MEANING OF PROPERTY: FREEDOM, COMMUNITY, AND THE LEGAL IMAGINATION (2010).
42. Eric T. Freyfogle, Book Review, 29 LAW & HIST. REV. 327, 327 (2011)
43. I use the term "bearer of value" broadly here to include, for instance, institutions (including legal institutions) and their effects on values like equality. The term also includes objects that agents may potentially choose in the future (where to attend law school) and situations over which agents have no control (a setting sun). Bearers of value such as these are valuable because of the abstract value (s) they realize or display. See Nien-he Hsieh, Incommensurable Values, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (July 23, 2007), http://plato.stanford.edu/entries/value-incommensurable/.
44. See Jedediah Purdy, A Few Questions About the Social-Obligation Norm, 94 CORNELL L. REV. 949, 950 (2009);
45. see also Purdy, People as Resources, supra note 80.
46. See Purdy, A Freedom-Promoting Approach, supra note 80, at 1297 (advocating his "freedom-promoting approach" to property, which "expand[s] people's set of viable choices and replace[s] relations of domination and subordination with reciprocity").
47. See generally Stephen J. Schnably, Property and Pragmatism: A Critique of Radin's Theory of Property and Personhood, 45 STAN. L. REV. 347 (1993). Radin herself acknowledges that her personhood argument sometimes has an individualistic cast.
48. See Margaret Jane Radin, Residential Rent Control, 15 PHIL. & PUB. AFF. 350 (1986)
49. reprinted in MARGARET JANE RADIN, REINTERPRETING PROPERTY 72, 86 (1993).
50. See Margaret Jane Radin, Time, Possession, and Alienation, 64 WASH. U. L. Q. 739, 757 (1986).
51. It is true that Radin characterizes her view of property alternatively as "evolutionary pluralism" and "pragmatic pluralism." See Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1904 n. 208 (1987). However, there is nothing pluralistic about the personhood theory itself. That theory focuses on only one moral value-personhood, or self-constitution. Thus, what is perhaps her most famous and influential piece, Property and Personhood, consistently and exclusively focuses on personhood. For this reason, I treat her as a monist.
52. Margaret Jane Radin, Reconsidering Personhood, 74 OR. L. REV. 423, 425 (1995).
53. See Martha C. Nussbaum, Human Functioning and Social Justice: In Defense of Aristotelian Essentialism, 20 POL. THEORY 202 (1992).
54. See, e.g., THE QUALITY OF LIFE, supra note 12.
55. MARGARET JANE RADIN, CONTESTED COMMODITIES 9 (1996).
56. See generally RICHARD BRANDT, A THEORY OF THE GOOD AND THE RIGHT (1979).
57. See generally LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE (2002). Whether objectionable actual preferences, say, racist preferences, should be ignored or cleansed in the welfare calculus is a controversial topic among welfarists.
58. Compare, e.g., JON ELSTER, SOUR GRAPES 20-24 (1983) (advocating elimination of improper preferences from welfare calculation)
59. RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985).
60. See Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21, 36 (1986);
61. see also Margaret Jane Radin, The Consequences of Conceptualism, 41 U. MIAMI L. REV. 239, 242 (1986).
62. See, e.g., Robert C. Ellickson, Adverse Possession and Perpetuities Law: Two Dents in the Libertarian Model of Property Rights, 64 WASH. U. L. Q. 723 (1986);
63. See generally MICHAEL WALZER, SPHERES OF JUSTICE (1983).
64. See Richard A. Epstein, Past and Future: The Temporal Dimension in the Law of Property, 64 WASH. U. L. Q. 667 (1986).
65. See Glass v. Goeckel, 703 N. W.2d 58 (Mich. 2005);
66. Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, 879 A.2d 112 (N. J. 2005).
67. See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 779-80 (1986).
68. For an argument that value pluralism does not necessarily involve incomparability qua incommensurability, see Ruth Chang, Introduction to INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 14-16 (Ruth Chang ed., 1997).
69. See Michael Stocker, Abstract and Concrete Value: Plurality, Conflict, and Maximization, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON, Supra note 160, at 196, 203.
70. See Elizabeth Anderson, Practical Reason and Incommensurable Goods, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON, supra note 160, at 90, 90.
71. See Joseph Raz, Incommensurability and Agency, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON, Supra note 160, at 110, 111.
72. The choice posed in the novel by William Styron, SOPHIE'S CHOICE (1979), is a particularly vivid Active example.
73. ARISTOTLE, NICOMACHEAN ETHICS bk. V., ch. 10, at 1137b-1138a (Martin Ostwald trans., 1962). The reference to Lesbian construction work is to its molding, which had an undulating curve. The Lesbian rule was "a flexible piece of lead which was first accommodated to the irregular surface of a stone already laid in position, and then applied to other stones with the view of selecting one of them with irregularities which would fit most closely into those of the stone already laid"
74. 1 J. A. STEWART, NOTES ON THE NICOMACHEAN ETHICS OF ARISTOTLE 531 (1973).
75. The following discussion draws inspiration from essays by Charles Taylor and David Wiggins. See Charles Taylor, Leading a Life, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON, supra note 160, at 170;
76. David Wiggins, Incommensurability: Four Proposals, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON, supra note 160, at 52.
77. See David Wiggins, Deliberation and Practical Reason, in ESSAYS ON ARISTOTLE'S ETHICS 221 (Amélie Oksenberg Rorty ed., 1980).
78. Charles Taylor refers to such actions, ways of being, and so on, as "life goods." See CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY 93 (1989).
79. RICHARD KRAUT, ARISTOTLE: POLITICAL PHILOSOPHY 110 (2002).
80. Louis Kaplow, for example, makes this criticism of Amartya Sen's capabilities theory. See Louis Kaplow, Primary Goods, Capabilities,... or Well-Being?, 116 PHIL. REV. 603 (2007).
81. The allegory of Buridan's ass illustrates the dilemma of the moral choice between two apparently identical items. It was first developed by the French philosopher Jean Buridan (1300-58), who actually discussed a dog rather than an ass in his commentary of Aristotle's De caelo. See NICHOLAS RESCHER, SCHOLASTIC MEDITATIONS 18-19 (2005) (discussing Buridan's unpublished Expositio textus of the De caelo). Buridan discusses the method by which a dog must choose between two equal amounts of food (of the same kind) placed before it.