• 07 June 2009

Ownership and Obligations

Gregory S. Alexander - Cornell University Law School

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Much recent property theory, both in the United States and elsewhere, is devoted to a search for the essential core of ownership.  So, Tom Merrill and James Penner have argued that the right to exclude is the sine qua non of ownership.1  Henry Smith has similarly argued that the right to exclude is the core of ownership.2  More recently, Lee Anne Fennell, although not claiming to have discovered the Holy Grail of ownership, has tried to get law-and-economics scholars to focus their attention on inalienability rules as well as property rules and liability rules.3  Among Judge Guido Calabresi and Douglas Melamed’s famous trinity of rules,4 she claims, the latter two rules have preoccupied legal economists to the virtual neglect of inalienability rules.

In “The Social Obligation Norm in American Property Law,” I do not argue against any of these grand claims so much as I ignore them.  My concerns lay elsewhere. I agree with Fennell that there is a major gap in current property theory literature, but it is not the one she identifies.  The gap is the failure, with some notable exceptions at both ends of the political spectrum,5 to provide any explicit and sustained analysis of the obligations that property owners owe to members of their communities and the normative foundations of those social obligations.  The property rules-liability rules literature does not address this topic except elliptically.  Nor does the information-costs model so elegantly spun out by Smith and Merrill confront this fundamental problem.

The thesis of the article is basically this: Human beings are inherently dependent on others to flourish as human beings.  This dependence creates for each of us an obligation, certainly moral and at times legal, to support, in ways that are appropriate to us and to the extent that it is appropriate to us, those social networks and social structures that facilitate the development of those human capabilities that make human flourishing possible.

The fundamental value grounding this social obligation thesis is human flourishing.  Human flourishing is the basis for property rights.  Life in community with others and access to certain kinds of resources are requisites to human flourishing.  Property rights and their correlative obligations are cognizable as social goods, worthy of vindication by the state, only insofar as they are consistent with community and human flourishing more generally.  In the interest of human flourishing, the state affords legal recognition to asserted claims to resources as legal entitlements.  Accordingly, the state does not take away when it abstains from legally vindicating asserted claims to resources when such claims are inconsistent with human flourishing or with community itself.  In such cases, the community merely does not give.  For the community, acting through the state’s laws, is what transforms pre-legal claims into legally recognized property rights in the first place.  That which is socially cognizable as property is only that form of access to resources that is consistent with human flourishing and community itself.  The social obligation norm, then, is, in effect, the law’s recognition of this straightforward conceptual entailment of the way the legal system justifies the institution of private property itself.  Another way of putting this point is to say that the very factor that makes the institution of private property a social good is also the very factor that renders its limits, i.e., human flourishing.

Human flourishing requires that individuals develop what Amartya Sen and, following Sen, Martha Nussbaum, call certain “capabilities.”  Capability, as they use the term, refers to the freedom or ability to choose to function or act in certain ways (although not necessarily to act in fact in those ways).  Human flourishing measured by what a person is able to do, not by what she has or even necessarily whether the satisfaction of her subjective preferences has been maximized.

There are bound to be disagreements about just what capabilities are essential to living a well-lived life, that is, a life worthy of human dignity.  Four such capabilities seem (relatively) uncontroversial to me.  These are: (1) life, including certain subsidiary values such health; (2) freedom, understood to include the freedom to make deliberate choices among alternative life horizons; (3) practical reasoning, that is, reasoning aimed at future action; and (4) sociability, that is, the ability to get along with others, to see their point of view, to have compassion, and to care about the well-being of others.

Individuals cannot acquire these capabilities or secure the resources to acquire them by themselves.  This is because the physical process of human development mandates our dependence on others for a great deal of the time during which we are cultivating the necessary capacities.  Even as human beings value and strive for autonomy, dependency and interdependency are inherent aspects of the human condition.  The idea that one sometimes takes away from scholarly discussions of individual autonomy is that the self-reliant moral agent springs fully formed into the world from birth and continues until death.  Quite the opposite is true.  From cradle to grave and at all points in between, we are dependent on others for the development of those capabilities without which the concept of autonomous moral agency would be meaningless.

Communities, of all sorts, including the state, are the mediating vehicles through which individuals acquire these essential human capabilities.  As rational autonomous agents, humans never cease to operate within and depend upon the matrices of the many communities in which they find themselves in association.  The communities in which people find themselves play crucial roles in the formation of their preferences, the extent of their expectations, and the scope of their aspirations.

Because the capabilities are essential to what it means to flourish in a distinctively human way, their development is an objective human good, something that we ought (insofar as we accept these particular capabilities as intrinsically valuable) to promote as a good in and of itself.  Every person is equally entitled, as a matter of human dignity, to flourish.  This being so, then every person must be equally entitled to those things essential for human flourishing, i.e., the capabilities that are the foundation of flourishing and the material resources required to nurture those capabilities.  In the absence of these capabilities and supporting resources, recognition of the entitlement to flourish is simply an empty gesture.  But not every society will be equally conducive to human flourishing.  The cultivation of the capabilities necessary for flourishing depends upon social matrices, and the condition of those matrices varies among societies, sometimes quite widely.  A society that fosters those capabilities that are necessary for human flourishing is morally superior to one that is either indifferent or (even worse) hostile to their manifestation.

If human capacities such as survival (understood to include physical health), the ability to engage in practical reasoning, and to make reasoned decisions about how to live our lives are components of the well-lived life, then surely we are all obligated to support and nurture the social structures without which those human capabilities cannot be developed.  Consequently, viewed from the standpoint of the capabilities necessary for human flourishing, how we participate in political and social communities cannot just be an expression of our preexisting autonomy; it cannot be solely a volitional act committed for instrumental reasons such as preference satisfaction.  Rather, it is an objectively grounded obligation rooted in our recognition of the value of the capabilities that are necessary for the well-lived life.  In short, then, we owe because we are dependent and because we are members. 

This obligation is certainly moral in character, but it is also a legal obligation.  I do not suggest that the moral and legal obligations are identical, but I do suggest that the state, as one of the communities to which we belong and upon which we are dependent for supporting the social systems and structures that develop the essential human capabilities, is entitled to make certain demands on the property of its members.6 As even some of the most stringent of property rights libertarians have acknowledged,7 the extreme need of some in the community trumps the property rights other people hold over their surplus resources.

From the perspective of the obligation to support the social systems and structures that foster human flourishing, the state is justified in demanding, either by way of direct redistributive measures or regulatory use restrictions, that property owners contribute in ways that are appropriate to them the resources necessary for the provision of life, including health, freedom, practical reasoning, including education, and sociability.  In short, if we accept the existence of an obligation to foster the capabilities necessary for human flourishing, and if we understand that obligation as extending to an obligation to share property, at least in surplus resources, in order to enhance the abilities of others to flourish, then it follows that, in the predictable absence of adequate voluntary transfers, the state should be empowered and may even be obligated to step in to compel the wealthy to share their surplus with the poor so that the latter can develop the necessary capabilities.

None of this is meant to suggest that the state’s power, even as it touches on the facilitation of the capabilities we are discussing, is unbounded.  The limits to the state’s proper domain are supplied by the same principles that justify its action: the demands generated by the capabilities that facilitate human flourishing—freedom, practical rationality, and sociality, among others.  Another way of putting the point is that there are limits to state power that are intrinsic to the social obligation norm itself.  For example, autonomy interests will limit the social obligation norm when there are no equivalently weighty countervailing interests.  The well-known case of Jacque v. Steenberg Homes, Inc.8 illustrates this limitation.  In that case, homeowners, Lois and Harvey Jacque, sued Steenberg Homes for damages for intentional trespass to the Jacque’s land.  Steenberg delivered a mobile home by plowing a path across the Jacques’ snow-covered field despite strenuous protests from the Jacques.  Although other means of accessing the delivery location were available, Steenberg used the path across the Jacques’ land because that was the easiest route for him.  The jury awarded the Jacques $1 in nominal damages and $100,000 in punitive damages.  On appeal, the Wisconsin Supreme Court held that when a jury awards nominal damages for intentional trespass, punitive damages may also be awarded.

The Jacques had strong capability-related reasons for excluding Steenberg Homes.  The most important of these interests are the Jacques’ autonomy and privacy.  The common law historically, and properly, attached great weight to the interests of homeowners in protecting their privacy and associational autonomy by recognizing a robust right of homeowners to exclude the public from entering upon their property without permission.  Although this right has long been subject to certain limited exceptions, such as the privilege of firefighters to enter for purposes of protecting the home, the right to exclude has generally been strongest with respect to the home.  From the perspective of social obligation theory, with its focus on human capabilities necessary for the well-lived life, this emphasis on privacy of the home makes good sense.  The home is the central locus for developing and experiencing all, or nearly so, of the capabilities necessary for human flourishing.    

Another important limit on state power is the principle of subsidiarity.  This is the notion that the state ought not arrogate to itself functions that can be performed just as well, if not better, by smaller, more intimate communities.

Traces of an implicit social-obligation norm, one that is informed by a concern for human flourishing, are scattered throughout American property law.  Several of these are evident in more recent doctrinal developments.  An obvious example concerns public access to beaches.  Courts in a few recent cases have strikingly expanded the scope of the public’s right to access privately owned beaches.9 Relying on the public trust doctrine, they have seen fit to permit members of the public to have access to privately owned dry-sand portions of the beach for recreational purposes under certain conditions.

This doctrinal development, although certainly altering the traditional common-law rule on the right to exclude, is both explicable and justifiable in terms of the human flourishing-based social obligation theory.  Recreation is an important aspect of health, which itself is a vital dimension of the capability of life.  Providing all persons, including (perhaps one should say especially) poor people, with reasonable access to basic modes of recreation and relaxation would materially contribute to the goal of being capable of living lives worth living.  Recreation also supports sociability as a good.  Sociability encompasses subsidiary goods such as friendship and social participation.  Indeed, affiliation may explain, or partly explain, many of the circumstances in which courts have recognized some version of a reasonable access rule that limits the common-law right to exclude.

Of course, the beach owner has legitimate capability interests at stake as well.  This is especially true if the owner lives on the parcel where the affected beach is located.  Under those circumstances, the case may begin more closely to resemble Jacque v. Steenberg Homes, which I previously said was correctly decided from the perspective of the social obligation theory.  In such circumstances, the owner’s autonomy and privacy interests weigh heavily in the capability calculus.  As I previously indicated, the home is the central locus for developing and experiencing all, or nearly so, of the capabilities necessary for human flourishing, so if the beach is indeed the site of the beach owner’s home, she will have a strong case for excluding members of the public.  The “reasonable access” standard adopted in the New Jersey cases might permit the court to enjoin the public from using the owner’s dry-sand portion of the beach in order to accommodate her capability interests.  Or it might adopt a more granular approach to regulating the public’s exercise of its access right.  Britain’s recently enacted “right to roam” statute10 might serve as something of a model for such an approach.  This statutory jus spatiandi, which extends over open land, private as well as public, throughout Great Britain, is subject to all manner of reasonable behavior restrictions that are designed to protect the owner’s privacy and autonomy interests.  The public right of access to privately owned beaches might be cabined in a similar fashion and for the same purpose under the social obligation theory.

Professor Joseph Singer has observed, “Owners have obligations; they have always had obligations.  We can argue about what those obligations should be, but no one can seriously argue that they should not exist.”11 He is right.  It is high time that property scholars explicitly debate questions concerning the scope and foundations of the obligations that property owners owe to their communities.  I’ve argued that property is about more than individual freedom or cost-minimization.  It is also about human flourishing, which cannot be reduced to cost terms, and supporting the communities that enable us to live well-lived lives.  It is to those ends that the social obligations of ownership exist.  Other property analysts will surely disagree.  Fine.  But let’s get the debate going, explicitly and rigorously.dingbat


Copyright © 2009 Cornell Law Review.

Gregory S. Alexander is A. Robert Noll Professor of Law, Cornell University Law School.

This Editorial is based on the following full-length Article:   Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. 745 (2009). Click Here for the Full Version

  1. Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730 (1998); J.E. PENNER, THE IDEA OF PROPERTY IN LAW (1997).
  2. See, e.g., Henry E. Smith, Minding the Gaps: The Indirect Relation Between Ends and Means in American Property Law, 94 CORNELL L. REV. __ (2009).
  3. Lee Anne Fennell, Adjusting Alienability, 122 HARV. L. REV. 1403 (2009).
  4. Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
  5. Among the major exceptions are JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY (2000); LAURA S. UNDERKUFFLER, THE IDEA OF PROPERTY: ITS MEANING AND POWER (2003); Eduardo M. Peñalver, Land Virtues, 94 CORNELL L. REV. __ (2009); Hanoch Dagan, The Social Responsibility of Ownership, 92 Cornell L. Rev. 1255 (2007); ERIC T. FREYFOGLE, THE LAND WE SHARE: PRIVATE PROPERTY AND THE COMMON GOOD (2003). At the opposite end of the political spectrum, Richard Epstein has provided a sustained and powerful social obligation theory. His theory is, at least at times, contractarian, and imposes minimal obligations on individual owners. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985).
  6. I do not suggest that there is any a priori connection between the social dependence I have been describing and the permissibility of direct state action in support of human capabilities. One cannot rule out, for example, the possibility that at times and in some places the bonds of affection and reciprocity are/were such that each person’s claim to the resources needed to develop the essential human capabilities were satisfied without any direct action by the state. In modern capitalist economies, however, a strong case can be made that guaranteeing individuals access to such resources requires, at least as a default measure, direct state action. In the modern capitalist societies, it seems high unlikely that these needs will be met through the non-coerced actions of private communities. See Gregory S. Alexander and Eduardo M. Peñalver, Properties of Community, 10 THEORETICAL INQUIRIES IN LAW 127 (2009).
  8. 563 N.W.2d 154 (Wis. 1997).
  9. See Raleigh Avenue Beach Ass’n v. Atlantis Beach Club, 879 A.2d 112 (N.J. 2005); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355 (N.J. 1984), cert.denied, 469 U.S. 821 (1984); Glass v. Goeckel, 703 N.W.2d 58 (2005).
  10. Countryside and Rights of Way Act 2000 ch. 37 (Eng.). For a more complete discussion, see KEVIN GRAY & SUSAN FRANCIS GRAY, ELEMENTS OF LAND LAW 1372-76 (5th ed. 2009).
  11. SINGER, ENTITLEMENT, supra note 5, at 18.

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