The institution of private property has met an unlikely cohort of challengers: law professors who focus on property. When property professors gather, they tell stories in which government is the protagonist and property is the villain. These stories center thematically on governments’ ability to save citizens from hurricanes, tornadoes, floods, global warming, energy shortages, and scores of other calamities, if only pesky property rights didn’t impede them. That governments should bury private property beneath a mountain of regulations is a given; the only contested question is whether the regulations should be generated by federal, state, or local officials.
These stories do not (yet) reflect the views of most lawmakers. As Thomas Merrill and Henry Smith, two prominent defenders of property, have observed, the law still reflects our strong moral intuition that property rights are important. At the core of property lies a simple and widely shared principle: We believe firmly that stealing or trespassing is wrong, and the law backs this belief with strong sanctions. The owner has a right to exclude, which is enforceable against the whole world.
Of course, the way one uses one’s property nearly always affects other people, and governments reasonably police the margins of property use in order to promote the common good. Sometimes governments succeed and sometimes they overreach, but as long as the core of property remains intact, excessive regulation does not destroy the institution of property.
Now, however, even the core of property is in question. A formidable challenge to the very notion of private property recently has emerged from the property professoriate. In an influential series of articles, four property scholars have articulated and defended what they call a “Statement of Progressive Property.” They doubt that property owners can be trusted to use assets wisely for the common good. They would like, therefore, to make government the ultimate arbiter of property rights. Owners would exercise sovereignty over their assets only as the state permits.
Strikingly, two of the authors, Gregory Alexander and Eduardo M. Peñalver, defend the Progressive Statement on Aristotelian grounds. Peñalver envisions a law of property that “affirmatively promotes human virtue and flourishing.” This law will authorize state usurpation of property rights when “collective decision making” can be expected to “generate outcomes superior to individually determined conduct.” Alexander claims that the core of property contains a “social-obligation norm,” which requires property owners to share with others to foster human flourishing. The state should be empowered, and often has an obligation, to enforce this norm by coercion.
It should be noted that the authors of the Progressive Statement deny that they are challenging the institution of property. They deny that the core of property is a clearly defined domain of owner sovereignty. Thus, state incursions on private property rights are not limitations on property but rather part of the institution itself. Yet it is the right of the property owner to exclude that makes property unique. If property rights are created by, and maintained at, the discretion of the state, then property ceases to be property.
The authors of the Progressive Statement have performed a great service by calling attention to the values that sometimes warrant limitations upon property rights. They rightly affirm that these values cannot always be compared with each other on any scale, and that economics alone cannot explain the institution of property. They do well to remind property scholars that virtue plays an important role in law, even in property law. Nevertheless, they can be faulted for lack of attention to the implications of the very principles they invoke. It is not at all clear that one who is committed to virtue in the use of land also must be committed to state governance of land. Many defenders of property understand themselves to be in favor of both virtue and property rights.
Is the disagreement over the efficacy of property really a moral disagreement? Henry Smith does not think so. He holds that both defenders and critics of property rights are in favor of virtue and human flourishing. He criticizes the Progressive Statement authors for their insufficient attention to the means by which their proposals are supposed to serve these ends. The problem, in Smith’s view, is not that private property fails to promote human flourishing but rather that the critics of owner sovereignty are impatient with the “mysterious way” in which property does its work.
Property Promotes Human Flourishing, the Common Good, and Human Dignity
The manner in which property serves human flourishing is not really a mystery; it is merely very complex. Indeed, the operation of private property is as complex as the human goods that property serves. Property serves the common good in as many different ways as there are property owners. Just as one person’s notion of the good life differs from his neighbor’s notion, one person’s use of his assets to pursue the good life differs from his neighbor’s use.
Moral obligations sometimes require limitations upon property rights. One should not use one’s property to injure another person, to destroy the natural environment, or to harm another’s property rights. But most choices about the use of property are governed by pre-moral considerations. That is, absent some moral constraint, one may choose among equally reasonable, possible uses of property. Some people use property to raise and support families; others use property to pursue education and knowledge; others donate property to charitable causes. That different people use property to pursue different aspects of the good is one of property’s great strengths.
Property is, in this sense, one of the truly pluralistic institutions in American law. That the operation of private property is complex, however, does not mean that the rules of property must be equally complex. Indeed, the core of property is very simple: the property owner has the right to exclude others from his or her asset. This right to exclude gives the property owner space in which to exercise other rights, such as the right to use, exploit, and encumber the property. To undermine these simple rights is not to promote but rather to impoverish human flourishing. In order to work effectively, property rights must free the property owner to pursue projects that others do not value. Property must honor and protect the freedom of the owner-sovereign to choose.
Alexander and Peňalver suppose that property must be either individualist or collectivist. They pose a dichotomy between allowing individuals to serve their own interests and authorizing the state to promote collective interests. This is a false dichotomy. Even as it enables pluralism, property-owner sovereignty serves a truly common good, which is reducible neither to individual interests nor to collective political decisions.
Notwithstanding the plurality of uses of property, private property serves common values. Even individual property owners can and do choose to use their property for the benefit not only of themselves but also of others. Children benefit from the property ownership of their parents. The destitute benefit from charitable gifts. Employees benefit from capital investments in the corporations that employ them.
Furthermore, not all property owners are individuals. News agencies, athletic clubs, neighborhood associations, churches, and unions own property. Schools, social clubs, charitable organizations, for-profit companies, and many other associations serve common goods through the responsible exercise of property rights. The principle of subsidiarity reminds us that these institutions and associations are often better equipped to promote human flourishing than are governments, especially central governments. The purpose of a community is to help its members to help themselves, in the words of John Finnis, “to constitute themselves” by choosing and realizing their common good. The process of decision-making should, for this reason, be closest to those who will carry out the decision. Centralized governments should not assume authority that can be exercised by more local associations.
So, robust property rights are not in tension with human flourishing; but one can claim even more. Strong protections for the rights of property owners actually promote human flourishing, especially virtue, in ways that state governance of assets cannot. (Leave aside the empirical question whether private property or state control better promotes the economic prosperity of the least well-off.) Property-owner sovereignty enables a significant exercise of virtue that state governance actually destroys. By using property to choose between equally reasonable options, a property owner in an important sense makes his or her own life, brings a new reality into being. He or she exercises free choice (what many people would call “personal autonomy”) to bring about a new state of affairs. This is a distinctly human achievement. Strong property protection secures the freedom to exercise free choice. State governance destroys it.
Because an owner’s decisions about property use generally rest upon pre-moral considerations, the owner’s sovereignty over assets epitomizes the exercise of free choice in its highest and best form. One might encumber one’s house with a second mortgage in order to remodel one’s kitchen and host more dinner parties, or one might assume a mortgage obligation in order to further one’s education. One can just as reasonably choose to devote one’s assets to being more hospitable as to acquiring knowledge. Given finite value in the house (in the current real estate market, this is not implausible), one cannot choose both. Neither, however, is per se unreasonable or immoral. In such cases, which comprise the overwhelming majority of choices about property use, it is the act of choosing that settles the question.
In a society such as ours, which values pluralism and choice, property is precisely the place to protect the freedom to choose, and that freedom secured within the property owner’s sovereign domain can be exercised for great good. It is true that this freedom can be abused, as in cases of conspicuous consumption, reckless gambling, or miserly hoarding, but these abuses are the exceptions that prove the rule. We recognize abuses of property rights as abuses precisely because we know what good property use looks like and see it so often practiced.
This suggests a reason why the Progressive Statement fails to persuade. Perhaps the authors of the Progressive Statement neglected to look around at their neighbors and observe how owner sovereignty is actually exercised. Had they done so, they would have recognized that millions of property owners daily exercise their property rights to promote the common good and should be trusted to do so in the future.