The Holy Grail of Progressive Property: Essay in Honor of Greg Alexander

Cornell Journal of Law and Public Policy Cornell Journal of Law and Public Policy

Volume 29 Issue 3 Spring 2020

Article 11

The Holy Grail of Progressive Property: Essay in Honor of Greg The Holy Grail of Progressive Property: Essay in Honor of Greg

Alexander Alexander

Laura S. Underkuffler Cornell Law School, [email protected]

Part of the Property Law and Real Estate Commons, and the Public Law and Legal Theory Commons

ESSAY IN HONOR OF GREG ALEXANDER

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B. The Theory of Reciprocity .......................... C. Property Obligations Rooted in Tort ................

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Greg Alexander is a towering figure in the legal academy. His work, over a period of forty years, has illuminated the most fundamental issues in property law and theory. It has transformed the field and inspired scholars in the United States and abroad.

During his career, Professor Alexander has arguably done more than any other single individual in explicating what human values underlie and should underlie the institution of private property in the United States and elsewhere.1 Through his efforts, the idea that property regimes must consider the effects of resource distribution on all members of the human family has become a mainstream part of property discourse.

One of his most important contributions has been in the founding and development of what is now known as the Progressive Property movement. Eleven years ago, four legal academics met in Cambridge, Massachusetts, to articulate a new vision of property: one that eschewed what was then a fascination by American legal scholars with economic efficiency, the power of exclusion, the protection of expectations, or

some other single metric as both explaining and justifying the institution of private property. What emerged from that meeting was a foundational statement for what has become the Progressive Property movement.2

this movement and

Property, as understood by

in Professor Alexander's work, is both an idea and a government institution. The common idea of property as the protection of individual control over valued resources is obviously important and intuitively powerful in everyday life. However, the inevitable impact of one person's property claims on the lives of others makes the idea of "property as protection" an inadequate basis for resolving property conflicts and designing property institutions. For those tasks, we must look to the underlying human values that the institution of property serves.3 "Efficiency," "economic growth," "legal stability," the "protection of expectations," or any other single metric is not enough. The fact that the institution of property grants resources to some and denies them to others forces consideration of more fundamental issues of property allocations. In short, property decisions must serve chosen human values and serve chosen human ends.4 We must ask: efficiency toward what? Economic dividends for whom? Legal stability for what reason, and at what cost? Protection of which set of conflicting expectations?

Progressive Property is emblematic of property theories that insist upon consideration of the effects of property systems upon all human beings, owners and nonowners alike. Whenever the question of the effects of property systems on everyone arises, the question of the need for property redistribution becomes real. Because of the power and discomfort of this question, theories about what property is-and should be-can be divided into two camps. Those camps can be identified as those that are what I call "redistributively aware," and those that are (deliberately) not. Theories that are "redistributively aware" consider distribution questions-whether they arise in connection with original acquisition, or later interference with property holdings-to be an unavoidable and critical part of any comprehensive theory of property.5 Toward this end, obligations toward others can be placed upon owners. Theories that are "redistributively unaware" maintain that redistributive to other "primary" property obligations are either objectives, or do not or should not exist.6

far secondary

Progressive Property has been at the forefront of redistributively aware theories. In the original statement, it is asserted that property involves both individual and social interests. The "plural and [often] incommensurable values" that property involves include both individual and social interests.7 The "plural and incommensurable values" that property involves include "individual interests" and "civic responsibility."8 They also include "life and human flourishing, the ..and the freedom to live one's life on protection of physical security, . one's own terms."9

In addition, under Progressive Property's principles, the institution of property must be seen as something that confers power, endowment, and deprivation.10 Because property confers power and allocates scarce resources, "property laws should promote the ability of each person to obtain the material resources necessary for full social and political participation."11 As such, they implicate "moral and political conceptions just distribution, and democracy."12 of just social Implicitly, this claims that a property regime that ignores distributional realities fails to meet the requirements of legitimacy and interpersonal justice.

relationships,

For Progressive Property and all "distributively aware" theories, challenges immediately arise. When it comes to property holdings, on what basis do we ground other-regarding obligations? We can assert that property regimes should promote "just social relationships," "just distributions," or "civic responsibility" among citizens. However critics ask -why these? Why not (for instance) exclusive concern with individual security in property holdings, individual reward for labor undertaken, and the maximization of owners' liberties?

Because of the critical importance of other-regarding convictions, redistributively aware scholars have long tried to find some anchor for these requirements apart from mere other-regarding moral assertion. There is a tacit acknowledgment that although the realities of material deprivation-hunger, illness, stunted lives, and death-might be enough

to to convince some of owners' obligations, they are not enough convince all in a contemporary world which recognizes the protection of individual property interests as a first principle. It has therefore been incumbent upon those who care about property distribution and deprivation to anchor other-regarding obligations in some other (nonmoral) theoretical foundation. The question for many years has been: is there any irrefutable source for the idea that "each property-owning individual is charged with responsibility to account for the interests of others?"

The basic idea of property itself (as commonly understood) does not provide much toward this conclusion. As lawyers and legal scholars, we are all familiar with the reasons that property rights might be conferred upon a particular individual, "X." For instance, X might be given property rights:

in recognition of her possession of the "thing";

-as a reward for her labor; -or for personal reasons such as her need for security or the ability to exercise her will in the natural world.

The reasons for recognition of property rights in a particular situation are various, and often conflicting. For instance: which should trump-an individual desert-based labor theory, or the idea of inheritance? However, all of these reasons have one characteristic in common: they are concerned with whether that individual should be afforded particular rights because of her character, actions, and needs. Missing from this picture is any consideration of the property owner's responsibilities to others.

There are, of course, limited contexts in which owners' obligations are commonly accepted. For instance, under elementary principles of nuisance law, one cannot use his property in a way that injures the enjoyment of property by another. However, such examples are ill-formed and partial at best. They do not deal with the question of how, or whether, "each property-owning individual is charged with responsibility to account for the interests of others" in his use of the property or, more fundamentally, in the fact of ownership of the property itself.

Many scholars (including myself) have attempted to establish an irrefutable ground for other-regarding property obligations. In particular, scholars have tried to find a grounding for the obligation of property owners to others without resort to any raw (and presumably contestable) moral theory. What unites these efforts is the conviction that moral obligations alone are not enough or, at least, are necessarily bolstered by non-moral theories. They are motivated by the belief that it is therefore incumbent upon those who care about property distribution and deprivation to anchor obligations in some other (non-moral) foundation.

Do these efforts succeed? Is it possible-ultimately-to identify any theory, idea, or circumstance that anchors obligations to others without resort to raw and contestable moral theories? Furthermore, if we find such an anchor, is it as satisfying as we have hoped? It is those questions that this essay will consider.

Many scholars have tried to find other-regarding obligations in the American constitutional text or in the general principles of democratic government. It is argued by these scholars that the American Constitution or the general principles of democratic government assume certain citizen rights or kinds of citizen participation; and that these, in turn, require the material means to do so. Accordingly, constitutional obligations and democratic government require redistribution (if necessary) to meet those guarantees.

Frank Michelman is perhaps the most well-known spokesman for this position. In an early series of articles, Michelman argued that the "idea of representative democracy" is foundational for all constitutional provisions and all constitutional guarantees.13 In this view, all American constitutional provisions assume that there will be broad and effective citizen participation in the establishment and maintenance of government;14 and that participation is possible only if certain resource needs of citizens-such as basic education, and a sustaining amount of food, medical care, and shelter for survival-are met. "Satisfaction of basic welfare ..a crucial ingredient of any serious attempt" to guarantee interests [is] . the right of political participation, and our commitment to an institutional system of majoritarian republicanism or representative democracy "commit[s] us" to the provision of those resources.15 To the extent that redistribution of property holdings is necessary to achieve that objective, it is a necessary part of American constitutional guarantees and American popular-government ideals.

Other academic commentators have similarly argued that broad constitutional assumptions of participatory democracy require some minimal level of assistance to ensure individual survival, with that assistance nec-

essarily taking the form of resource redistribution to achieve it.16 As I have previously written, "[t]he fact that property and the goods that it involves cannot be analytically or physically separated from the maintenance of life itself makes the substance of property . ..[and its distribution] far more important to human beings than the substance of other constitutional rights that we so cherish. Indeed, the ability to live-and the possession of the minimal property necessary to do so-is assumed by freedom of speech, freedom of religion, [and] the assurance of due process of law . "17 This insight has been voiced by scholars abroad as well. Urging attention to redistributive questions in the new South African Constitution, a commentator wrote that "[c]ontemporary experience makes it clear that 'without at least some modicum of such basic necessities as food, shelter and clothing, the enjoyment of other rights appears highly theoretical."'18 As a developing country, South Africa "may find it difficult to convince its millions of squatters and poverty-stricken people that the protection of civil and political rights is of value to them if they do not have the material, intellectual, and social ability and circumstances to make use of such rights."19

...

The anchoring of redistributive obligations in constitutional guarantees or the idea of popular government certainly provides a more secure grounding than the mere assertion that redistributive obligations "should" exist, alone. As long as we venerate the individual and participatory rights that the American Constitution guarantees, it is very difficult to argue that "property protection," as an idea or even as a constitutional guarantee, can render all of those rights nugatory.

Does the grounding of redistributive obligations in broad ideas of implicit constitutional guarantees or participatory democracy satisfy our quest-the search for an undeniable basis for those obligations? It is fair to say that with these efforts, we are some way toward that objective; but we are not there yet. Redistributive obligations that are rooted in implicit constitutional guarantees or ideas of participatory democracy certainly

are on firmer ground than those that are not; but those ideas are still derivative of what are external, and potentially changeable, commitments. A constitution-even a democratic constitution-is in the end a chosen enactment of positive law. Although redistributive obligations that are grounded in a democratic constitution's fundamental ideas are not as insecure as those rooted in some lesser law, the idea that the existence of such obligations is subject to popular choice in any form seems to contradict their essential nature. Constitutions-and, indeed, popular democratic systems-are, in the end, simply political choices that the majority or super-majority does or does not make. For those who believe in redistributive obligations, the obligation to attend to the effects of existing property distributions on human beings seems to reside in something more unquestioned than a country's current political commitments.

B. The Theory of Reciprocity

Another way to impose other-regarding obligations is through the idea of reciprocity. Under this approach, certain goals-such as personal autonomy,20 liberty,21 human flourishing,22 or the development of particular human capacities23-are chosen as the raisons d'etre of property systems, that is, the ends that property systems should serve. Once we have accepted the importance of any particular value in human life, it follows from the principle of reciprocity that it must be afforded to others. For instance, if we believe either in the value of liberty or the goal of human flourishing for ourselves, "to avoid self-contradiction"24 we must provide it to others. And if we believe that property-material resources-are necessary for our enjoyment of that value, we must agree that they are as necessary for others as well.25 From this admission, other-regarding obligations are born.

This is a powerful and logically irrefutable argument; however, it does not achieve the end that we are seeking. Our goal is to avoid rooting

other-regarding property obligations in contestable moral theory. The choice of particular values as those critical to human life might not be full-blown moral theory, as we generally think of it. But the choice of such values is inherently contestable. Reciprocity theory works only if there is no challenge to the values which we must "reciprocally" afford. We could choose nothing, and owe nothing. Reciprocity theory and its choice of human autonomy, or liberty, or flourishing, or any other identified value can be criticized as little more than a back-hand way to introduce the raw moral argument-of what human beings deserve-which we have explicitly committed ourselves to avoid.

There is also the problem that the idea of reciprocity can, itself, be characterized as a "thick" moral theory.26 The idea of avoiding self-contradiction, as imposing obligations upon ourselves for the benefit of others, might be an iron-clad argument in some contexts, but it is not so obvious in the context of property ownership. The problem inheres in why we have conferred property upon ourselves. If we have conferred property upon ourselves on the basis of an abstract human need for property, that basis (and its property-owning consequence) would necessarily be extended to others. But if we have conferred property upon ourselves because of our particular industry, or our particular need for security (of existing distributions), or other non-universal characteristic, then the irrefutable logic of extending this to others fails. Indeed, vindication of many property-conferring values-such as "security of owners," "reward for labor" and the like-are generally the rationales for essentially individually protective property regimes.

Recently, another approach to owners' obligations was offered by Professor Peter Gerhart. In his provocative book entitled Property Law and Social Morality,27 Professor Gerhart rejects the idea that morality and property are at odds.28 He acknowledges that property and morality are potential antagonists, because property-in its ordinary meaningseeks to protect individual interests, and morality-as a limitation on property rights-does not.29 However, it is possible, in his view, to articulate a theory that explains not only why property rights are what they are, but also how and why they must be limited by the well-being of other individuals.

..interests .

The aspiration of this book is not simply to impose upon the property regime some unrelated theory of justice, which Professor Gerhart fears will be difficult to defend. In his view, an approach in which "the ..or values" of others are pitted against those of clashing . insuperable the property owner creates problems.30 Rather, his goal is to establish a property owner's obligation to others utilizing only the values and ideas that are already accepted as a part of the idea property itself. He writes that we need a theory in which "an owner's obligations and disabilities . ..flow from the same source that gave rise to the [property] rights .

familiar and potentially

To begin, there must be some understanding of what we intend property to achieve for owners, even if its articulation is necessary only for illustrative purposes. Property's core value, in Professor Gerhart's view, is the value of autonomy. Private law, including property law, "sees each person as an autonomous actor, fully endowed with the freedom to make decisions that do not positively interfere with the projects and preferences of others."32 In a sense, of course, the selection of autonomy as the value that property serves is an arbitrary one. However, its selection does not violate the rules of our current endeavor, which is to find a basis for imposing obligations on others without reliance on some extrinsic moral value. If autonomy (or any other value) has been accepted as an intrinsic part of and reason for property protection, the use of that value cannot draw complaint.

Having established that groundwork, Professor Gerhart finds the obligations of property owners to others in the idea of tort.33 If an individual acts, and by that action harms another, it is universally accepted that the individual is accountable for the harm that he has caused. Just as tort duties flow from actions that an individual takes in other contexts, so it is true in property. Obligations to others-"moral" constraints-flow from an individual owner's activity decisions.34 There is no need to import extrinsic, elaborate, and controversial ideas of moral constraints. Obligations to others arise from the simple idea of tortious conduct, and responsibility for it.

The idea of tort-grounded obligations of owners to others has a great strength: by focusing on an owner's actions for the imposition of liability, it is implicit that the owner has necessarily consented (through his actions) to this outcome. Under this theory, "an individual's obliga-

tions come from a decision the individual has made."35 Because the owner has voluntarily undertaken that action, the owner can be charged with consenting to its consequences.36 As a general matter, "[d]uties are imposed because they are the natural consequences of choices people make. This principle is well-developed in tort law."37 Just as the driver of a car "surrenders decision-making autonomy by the very decision to subject others to ... risks" through his driving, and the supplier of goods and services "surrender[s] decision-making autonomy and accepts the obligation to think reasonably about the well-being of those the supplier serves," so it must work in property law.38 If "an owner uses his property to erect a steel mill, the obligation to think about the well-being of others is fairly implied from the owner's knowledge that the steel mill will ... pollut[e] [others]."39 When the owner acts, "the owner has accepted the well-being of non-owners the owner's projects and as part of preferences."40

The idea that duties to others arise from a property owner's actions is a simple, clear and compelling one. It makes intuitive sense that if a property owner acts to injure the interests of others, he should (under an analogy to tort rules) be liable for the harm caused. Furthermore, the implications of this theory are important. The idea that property owners are exempt from accountability for the harm that their actions causebecause they have "the right" to act under property rules-is defeated by the insight of this theory. Potentially, this theory encompasses not only familiar ideas of nuisance; it also provides a powerful justification for environmental laws, shoreline preservation laws, endangered species laws, and others. It is a strong argument for imposing responsibilities on landowners, in a broad spectrum of cases, for the externalities that they cause.

However, does this theory satisfy our quest? Does it provide an undeniable basis for the imposition of broad-based other-regarding obligations-including possible redistributive obligations-on the owners of property?

Professor Gerhart, himself, declines to extend his theory that far. His theory, he states, is only concerned with corrective justice, or, "given the [existing] distribution of resources, what is the just or morally right "41 This he believes is the appropriate way for individuals to interact. ... realm of private law, including tort law, "which makes decisions based

on notions of corrective, interpersonal morality ...."42 Considerations of distributive justice are different. Distributive justice, he writes, "is the realm of the collective, acting through its legislature, and can only be carried out through public law . .."43 "[W]hether the basic distribution of aggregate resources is just, as measured against a normative standard of what is deserved and needed" is not a question of private interaction. It is a broader societal question, and beyond the thesis of his book.44

For those who hoped to find an answer to the fundamental moral question of property and its distribution, this conclusion is disappointing. It reflects the limits of tort law, as traditionally understood. If someone uses his person or property to tortiously interfere with the person or property of another, a remedy (under tort law) is required. However, tort law does not concern itself with the question of "first positions." It does not concern itself with whether either party should own the property that he owns, or what that ownership might mean to others. Tort law assumes the legitimacy of first positions, or at least does not concern itself with them. It deals with whether-given the property ownership interests involved-the owner owes reparations to the other.

From the point of view of tort, and the avoidance of difficult distributive questions, this distinction between the effects of "interference" and the effects of "having" might make sense. However, when we are grappling with the question of a property regime's effects on others, limiting consideration to "act-based" claims in this narrow sense is unsatisfying. Assuring a person who lacks the resources to live that he will have a claim if a tort is committed against him would undoubtedly ring hollow.

It is possible, of course, to extend the idea of harm-creating actions to include the simple act of ownership. Acquisition, or hoarding, or whatever we might want to call it, of physical, finite, life-sustaining resources is obviously an action by the property acquirer in a very real sense. As such, it could be seen as an issue of both social and interpersonal morality-an action that can "impose unreasonable harm on others."45 However, that interpretation is beyond the usual idea of tort liability, and thus seems to be beyond the idea of "property as tort."

Another way to see property in other-regarding terms is-effectively-to redefine our understanding of it. In these efforts, the idea that property is essentially an individually protective institution is challenged. In particular, a historical argument is often used. It is argued that although property as protection of an individual's autonomous sphere might be the way that we commonly conceptualize property in the early twenty-first century, this is in fact a contemporary creation. Property, in our own social and legal tradition, was in fact a far more complex, otherregarding idea.

One might begin with the historical roots of American property law. Professor Robert Gordon-discussing eighteenth-century understandings of property in England-observed that despite "a lush flowering of absolute dominion [property] talk in theoretical and political discourse, the real building blocks of basic eighteenth-century social and economic inrights held and managed collecstitutions ..property surrounded by restriction on use and alienation; tively . [and] property qualified and for communal or state purposes ...."46

[envisioned] property .

regulated

..;

As many scholars have observed, the idea of property as an intrinsically social construct was transferred to American shores. Early American ideas of property included ideas of trust and social obligation as well as the protection of individual rights. From the earliest days of the American colonial period, property was seen as a "subtle combination of many rights, powers, and duties, distributed among individuals, society, and the state."47 Citing such origins, contemporary scholars have argued that a idea of property has never denarrow, scribed the American property regime.48 For instance, Professor Alexander described property in American thought as a way to choose and support a proper and just social order.49 Professor Carol Rose pointed out that ideas of stewardship and trusteeship were an equal part of American historical property ideas.50 I described how early American Founders saw the idea of property as encompassing a broad range of human liberties, within a collective context of support and restraint.51

individual-protectionist-only

Reclaiming this historical understanding has been seen as important to the conclusion that in American society and law, property rights and community obligation are not necessary and unavoidable antagonists. By reexamining the core concept of property-by seeing property as something that includes both individual and collective interests, as a part of its very nature-the idea that discussing obligations to others necessarily violates property's premise falls away. There is a fundamental difference "between viewing property as a collage of individual rights balanced against external, collective interests, and viewing the [often] competing interests of the individual and the collective as part of the conception of .." itself.52 Acknowledging this more complex idea of propproperty . erty can suggest a vital rapprochement among ideas of property, individual liberty, and obligations to others as a part of collective life.53

Do these efforts establish what we seek-an undeniable grounding for property owners' obligations to "unpropertied" others? When it comes to this objective, the obvious problem is that the existence of a historical understanding does not compel its adoption now. In prior years, American society might well have viewed property this way. This might indicate that (despite contemporary naysayers) such views of property work well, or even that they are necessary for property institutions. However, historical insights, no matter how valuable, do not require contemporary adherence to other-regarding theories.

Of all contemporary property theorists, the work of Professor Alexander is most associated with a "human flourishing" theory of property.54 Human flourishing, in his view, provides "the best account of the value constitution that underpins the structure of modern property law. It is also the most morally attractive justification of property."55 "[A] person's life flourishes when it goes as well as possible, that is, when the person lives a life of dignity, self-respect, and satisfaction of basic material needs."56 Human flourishing can best be seen in terms of the development of certain essential human capabilities. These include "life, understood to include certain subsidiary values such as health; freedom, understood as including the freedom to make deliberate choices among alternative life horizons; practical reasoning; and sociability. "57

Of necessity, a human flourishing theory assumes obligations to others.58 It would be impossible to hold the goal of human flourishing for all as the objective of property systems, without any implicit requirement of redistribution for those who are starving, without shelter, or without the basic medical resources to live.

In his earlier work, Alexander offered the principles of Aristotelian virtue ethics as a grounding for property owners' obligations to others.59 However, his explicit embrace of a strong moral theory as the source of obligations was questioned.60 Why Aristotelian virtue ethics? Why not some other value choice for property systems, such as autonomy or security or promotion of human industry?

In his latest book, Alexander advances a different grounding for the human flourishing theory and for the obligations of property owners. In Property and Human Flourishing,61 he sets forth an analysis that he intends to directly satisfy our quest: the establishment of a grounding for other-regarding obligations for property owners, without recourse to raw (and contestable) moral principle.

Professor Alexander's argument begins with the human capabilities that flourishing human life requires. Life, health, freedom, choice among meaningful alternatives, practical reasoning, and sociality are capabilities that no one can develop alone.62 In their development and practice, humans "are inevitably and inherently dependent on others."63 In particular, communities are required both for the acquisition of resources needed to flourish and for the exercise of the capabilities that we have.64

It is in the need for communities that we find property owners' obligations.65 Because we depend upon the existence of social networks and structures to attain and exercise our human capabilities, it is necessary that we support those social networks and structures-and the individuals of which they are composed. This obligation to support others, Professor Alexander writes, is rooted in a moral theory.66 However, it is a moral theory of a different kind. It is not a moral theory asserting duties owed to others; it is a moral theory asserting duties owed to ourselves. Professor Alexander explains:

that make human

Our dependence on others and on the various communities of which we are members creates an obligation not only to participate in but also to support the [communities] ... that enable us to develop those human capabiliflourishing possible. This ties obligation is not based on reciprocity, and it is not contractarian. Rather, it is based on the obligation each of us owes to ourselves to live well. If I value my life (as presumably I do), then I must maintain the conditions that make my life as good as possible. Those conditions include the communities to which I belong and without which my living well- indeed, my life itself-would not exist.67

Supporting those communities requires, of necessity, material maintenance-and distribution of resources, if necessary.68

This approach is both novel and intriguing. To put it simply, we (as property owners) have obligations to others not because of their needs, or the impacts of our actions, or even because of ideas of "the good life" that we must-to be logically consistent-reciprocally provide to others. Rather, we have obligations to others because of something more undeniable: because of our obligations to ourselves.

This theory has some great strengths. Most notably, it does not require that people be "altruists" or sign onto a particular other-regarding moral theory for responsibilities to others to exist. It roots obligations to others in something far more universal and undeniable: our innate need (and desire) to attend to our own self-interests. In effect, "self-interest" is turned into "other-interest." Because we depend-for our own flourishing-on the communities in which we live, it will be in our own selfinterest to look out for the "others" who constitute those communities.

This approach also has the strength that it aligns with what we actually do. If we are honest with ourselves, most of us would acknowledge that we support the communities in which we live primarily because of what they do for us and for the living of our lives. We might also be motivated by genuine other-regarding convictions; but recognition of how communities fulfill our own needs undeniably (and consistently) motivates our support of them. As we live our daily lives, we might

rarely reflect on our reliance on the existence of supportive, peaceful, embracing communities; it is something that we take for granted, like the air we breathe or the roads on which we travel. But our reliance immediately becomes obvious if-due to natural disaster, economic catastrophe, or personal banishment-we suddenly have to do without.

The simple brilliance of this approach is apparent. There are no grounds on which to attack the necessity for human capabilities, the need for others in attaining those capabilities, and-finally-our self-interest in maintaining the communities and "others" that make all of this possible. Through analytical alchemy, other-regarding interest has been reframed as self-interest. And unless someone denies the existence of that self-interest on some ground, the conclusion that this theory provides an undeniable reason why property-owning individuals must account for the interests of others is difficult to shake.

Of all of the attempts to find an incontrovertible basis for owners' obligations to others, Alexander's theory clearly comes the closest to success. He presents a logical argument for obligations to others that cannot be controverted. There is no effective answer to the argument that he makes. Which of us would argue that we should disregard, as a first principle, our own self-interest? And if not, which of us would argue that we should not maintain those communities and individuals who serve it?

There might be a few human beings who would choose to live on a remote island with no contact, no means of communication, and no food, clothing, shelter, medical supplies, or other material goods or services that in any way previously involved or now involve others. However, the makers of that choice would undoubtedly describe virtually none of us who are able to read this essay. And we know it.

Ultimately, Professor Alexander accepts that other-regarding moral theories can have a role in the grounding of obligations to others. Later in his book he discusses contexts in which raw moral ideas of "wrongs," other-regarding "morality," and "injustice" must be considered in distributive decisions.69 However, it is the striking potential of the self-interest theory for our quest for a non-moral argument that imposes other-regarding obligations that rivets our attention. After an exhaustive search for an undeniable basis for obligations of property owners to others, we have found only one grounding that in no way relies on other-regarding value-

laden moral argument: the anchoring of obligations to others in our interests in ourselves.

If we reflect upon it, this is in fact an entirely predictable outcome. What we have been seeking in this quest is a logical grounding for otherregarding obligations, when we have-at the outset-explicitly rejected (as contestable) any purported grounding in the welfare of others. Because the essence of property ultimately involves claims to control of physical, finite, non-sharable resources, zero-sum conflict between the self and others is unavoidable. If we reject moral reasons rooted in the welfare of others in the resolution of these conflicts, then the only possibility that is left is moral reasons rooted in ourselves.

This outcome is logically satisfying, in a way. For instance, the claim that property distributional questions and other issues that implicate others are issues with which we-and property systems-should not be concerned is shown to be the rootedly ridiculous proposition that it is. As the self-interest theory illuminates, we cannot deny that the consequences of property distribution are something about which we must care-even if only for the preservation of ourselves.

However, there are other aspects of this theory that are disquieting. And that disquiet extends not only to potential inadequacies of the selfinterest theory, but to what it indicates about the hidden dangers of the quest for a "non-moral" theory itself.

First, the rooting of obligation to others in the self-interests of the dominant group carries the possibility of radically undesirable outcomes. If we root our obligations to others in our need for communities and their constituent individuals, an immediately obvious limitation arises. Under this theory, the obligations of property owners extend to those communities and individuals who are important to our flourishing. However, what if the survival or existence of some individuals is of "no value" to "us," or to the "communities" that "we" feel it necessary to maintain (for ourselves)? To put it more radically, what if some individuals are not only of "no value," but are in fact deemed to be "detrimental" to the world in which "we" wish to live? Self-interest theory is powerful, and extraordinarily useful, in finally dispatching the idea that property distribution is something that the body politic can afford to ignore. But it has the potentially perverse effect of introducing criteria for the "value" of individuals and communities that can be entirely detrimental or inimical to their existence. To put it succinctly, self-interest theory is desirable, to us, as long as-and only as long as-we are within the "we" whose decisions rule our lives.

In addition, indeed, this problem has deeper roots -roots in the way that we have framed our quest itself. By insisting that we intentionally disregard any moral theory rooted in others-because it is contestable, fails "value neutral" tests, is inferior to the certainty of self-interest, and so on-our initial quest has artificially limited "moral theory" in the consideration of property issues to a dangerous degree. If we are not careful, this premise for our quest can become a de facto acceptance of the proposition that other-regarding moral theories are in fact illegitimate, expendable, unascertainable in the fact of the power of self-regarding ones.

The quest for a non-other-regarding reasons-moral or otherwise-

for obligations to others is a vital enterprise for arguments that might convince others of the need for distributional awareness in their theories and policies. However, those who are concerned about redistributive issues in property systems must always be aware of limitations of the premise for this quest. Non-other-regarding theories might well provide vital, supplemental arguments. But they cannot eclipse the importance of other-regarding moral theories themselves.

--- FOOTNOTES ---

Laura S. Underkuffler*

I. THE SEARCH FOR A ROOT FOR OTHER-REGARDING

O BLIGATIONS...........................................

A. Theories Rooted in Constitutional Obligations or the

Nature of Democratic Government ..................

D. Arguments from Historical Understandings ..........

E. Obligations to Others as Rooted in Obligations to

O urselves ..........................................

II. THE COST OF SUCCESS

.................................

721 723 724

* J. DuPratt White Professor of Law, Cornell University. 1 See generally GREGORY S. ALEXANDER, PROPERTY AND HUMAN FLOURISHING (2018) [hereinafter ALEXANDER, HUMAN FLOURISHING]; Gregory S. Alexander, Ownership and Obligations: The Human Flourishing Theory of Property, 43 HONG KONG L.J. 451 (2013); Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL

L. REV. 745

(2009)

[hereinafter Alexander, Social-Obligation Norm]; GREGORY S.

ALEXANDER, COMMODITY & PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT 1776-1970 (1997).

2 See Gregory S. Alexander, Eduardo M. Penalver, Joseph William Singer & Laura S.

Underkuffler, A Statement of Progressive Property, 94 CORNELL L. REV. 743 (2009).

3 See id. 4 See id. 5 See, e.g., id.; J. W. HARRIS, PROPERTY AND JUSTICE 154-58 (1996). 6 See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF

EMINENT DOMAIN (1985) (explaining that the achievement of individual liberty -and the

protection of property owners toward that end -

is the foundation of all property law); J.W.

HARRIS, PROPERTY AND JUSTICE 154-61 (1996); J. E. PENNER, THE IDEA OF PROPERTY IN LAW

68-104 (1997) (explaining that the right to exclude is the definitional core of property); Robert C. Ellickson, The Affirmative Duties of Property Owners: An Essay for Tom Merrill, 3

BRIGHAM-KANNER PROP. RTs. CONF.

J. 43 (2014) (explaining

that the imposition of

affirmative obligations upon property owners impinges upon the property owner's "freedom and self-actualization," adds undesirable complexity, and reduces the incentives of property

owners to act altruistically on their own).

7 Alexander et al., supra note 2, at 743. 8 Id. 9 See id.

10 See id. at 744. 11 Id. 12 See id. at 743.

I. THE SEARCH FOR A ROOT FOR OTHER-REGARDING OBLIGATIONS

A. Theories Rooted in Constitutional Obligations or the Nature of

Democratic Government

13 Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. PA. L. REV. 962 (1973); Frank I. Michelman, The Supreme Court, 1968 Term -Forward: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969).

14 See Frank I. Michelman, Welfare Rights in a Constitutional Democracy, 3 WASH. U.

L.Q. 659, 669-73 (1979).

15 Id. at 678, 684.

16 See, e.g., Goodwin Liu, Interstate Inequality in Educational Opportunity, 81 N.Y.U.

L. REV. 2004 (2006); Sotirios A. Barber, Welfare and the Instrumental Constitution, 42 AM. J. JURIS. 159, 177-78 (1997); Peter B. Edelman, The Next Century of Our Constitution: Rethinking Our Duty to the Poor, 39 HASTINGS L.J. 1, 34 (1987); Herman Schwartz, Do Economic and Social Rights Belong in a Constitution?, 10 AM. U. J. INT'L L. & POL'Y 1233, 1242-43 (1995); David Abraham, Liberty Without Equality: The Property-Rights Connection in a "Negative Citizenship" Regime, 21 LAW & Soc. INQUIRY 1, 32, 47-48 (1996); Robin West, Rights, Capabilities, and the Good Society, 69 FORDHAM L. REV. 1901 (2001).

17 LAURA S. UNDERKUFFLER, THE IDEA OF PROPERTY: ITS MEANING AND POWER 148

(2003) (emphasis in original).

18 Bertus de Villiers, Social and Economic Rights, in RIGHTS AND CONSTITUTIONALISM:

THE NEW SOUTH AFRICAN LEGAL ORDER 599, 604 (Dawid van Wyk et al. eds., 1996) (quoting

Mitchell I. Ginsburg & Leonard Lesser, Current Developments in Economic and Social Rights: A United States Perspective, 2 HUM. RTs. L.J. 237, 241 (1981 .

19 Id. at 621.

20 See, e.g., PETER M. GERHART, PROPERTY LAW AND SOCIAL MORALITY (2013). 21 See, e.g., David A. Super, A New New Property, 113 COLUM. L. REV. 1773, 1775-82

(2013).

22 See, e.g., GREGORY S. ALEXANDER & EDUARDO M. PENALVER, AN INTRODUCTION TO PROPERTY THEORY 89-90 (2012); Alexander, Social-Obligation Norm, supra note 1, at 760-72; AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999).

23 See, e.g., C. B. Macpherson, Human Rights as Property Rights, 24 DISSENT 72, 77 (1977) (illustrating property as a means to a "full and free life" by "using and developing and

exerting our capabilities and energies").

24 See Alexander, Social-Obligation Norm, supra note 1, at 769; ALAN GEWIRTH, REASON AND MORALITY 105-07 (1978). Cf GERHART, supra note 20, at 20, 121-22, 142-43

(stating that if an individual values autonomy, in the sense of freedom from interference by

others, then "the principle of equal freedom" requires that the autonomy-claiming individual

"exercise her freedom in a way that appropriately accounts for the equal freedom of others.").

25 See Alexander, Social-Obligation Norm, supra note 1, at 769.

C. Property Obligations Rooted in Tort

26 See BERNARD WILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY 140-42, 150-52

(1985).

27 See GERHART, supra note 20. 28 Id. at 122. 29 Id. at 5.

."31

30 See id. at 11.

31 Id. (emphasis added). 32 See id. at 121. 33 Id. at 27-28. 34 See id. at 142, 145.

35 Id. at 122. 36 See id. at 142-45. 37 Id. at 167. 38 Id. 39 Ifd 40 Id. at 175. 41 Id. at 22.

42 Id. at 23.

43 Id. 44 Id. at 22.

45 Id. at 149. See also Stephen R. Perry, Libertarianism, Entitlement, and Responsibility, 26 PHIL. & PUB. AFFAIRS 351, 363-73 (1997). Even in libertarian theory, it is a foundational

principle "that people 'own' the effects, both good and bad, that causally flow from their

actions." Id. at 352. To the same effect, see Richard A. Epstein, A Theory of Strict Liability, 2

J.L. STUD. 151, 159 (1973) (arguing that when one acts, he should "bear all the costs and enjoy all the benefits of that decision"). See also UNDERKUFFLER, supra note 17, at 119-22 (explaining that consequences of property ownership include the effects of allocative decisions).

D. Arguments from Historical Understandings

46 Robert W. Gordon, Paradoxical Property, in EARLY MODERN CONCEPTIONS OF PROP-

ERTY 95, 96 (John Brewer and Susan Staves eds., 1996).

47 FORREST MCDONALD, NOvUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE

CONSTITUTION 13 (1985).

48 ALEXANDER, HUMAN FLOURISHING, supra note 1, at 1. 49 See, e.g., id. 50 See Carol M. Rose, Public Property, Old and New, 79 Nw. U. L. REV. 216, 219-21 (1984); Carol M. Rose, Property as Wealth, Property as Propriety, in 33 COMPENSATORY JUSTICE: NoMoS 223, 232-39 (Jack Knight & Melissa Schwartzberg eds., 1991).

51 See Laura S. Underkuffler, On Property: An Essay, 100 YALE L.J. 127 (1990).

E. Obligations to Others as Rooted in Obligations to Ourselves

52 See id. at 146 (emphasis added). 53 See id. at 147. 54 ALEXANDER, HUMAN FLOURISHING, supra note 1, at xi-Xii.

55 Id. at 3.

56 Id. at 5.

57 Id. at 7.

58 See Alexander, Social-Obligation Norm, supra note 1, at 767-68.

59 See id. at 760. 60 See, e.g., Katrina M. Wyman, Should Property Scholars Embrace Virtue Ethics? A

Skeptical Comment, 94 CORNELL L. REV. 991, 992 (2009).

61 See ALEXANDER, HUMAN FLOURISHING, supra note 1. 62 See id. at xv. 63 See id. 64 See id.

65 See Alexander, Social-Obligation Norm, supra note 1, at 766-67. 66 Id. at 748-50.

67 ALEXANDER, HUMAN FLOURISHING, supra note 1, at Xv. See also id. at 51-52 ("[W]hat it means to be human is to take on an obligation to oneself to live well.... The responsibility

that we owe to ourselves to live well gives each of us an obligation to support the kind of

culture that makes it possible for us to live well.").

68 See id. at xv, 55 (explaining that the basic capacities necessary for human flourishing

require that "I must be in, belong to, and support a certain kind of society-a society that

supports a certain kind of political, social, and moral culture and that maintains a decent back-

ground material structure").

69 See, e.g., id. at 191-93 ("human flourishing theory supports using the law to prevent

private owners from exercising the right to exclude [from places of public accommodation] in

ways that undermine the ability of others to flourish"); id. at 267-94 (explaining that American

institutions that benefitted from slavery have a moral obligation to atone for their actions, with

"the basis of [that] ..

.moral obligation [being] ... the injury, both physical and moral, that

[they] ...had inflicted ...[,]" and must both "affirm [the] ...

humanity and establish [the]

..agency" of victims and their descendants); id. at 55 (explaining that necessary material

conditions for human beings are those required by "a humane liberal order.").

II. THE COST OF SUCCESS