The Social-Obligation Norm in American Property Law

Abstract

This article seeks to provide in property legal theory an alternative to law-and-economics theory, the dominant mode of theorizing about property in contemporary legal scholarship. I call this alternative the social obligation theory. I argue that American property law, both on the private and public sides, includes a social-obligation norm but that this norm has never been explicitly recognized as such nor systemically developed. I argue that a proper understanding of the social obligation explains a remarkably wide array of existing legal doctrine in American property law, ranging from the power of eminent domain to the modern public trust doctrine. In some cases social obligation reaches the same result as law-and-economics, but in other cases it will not. Even where it reaches the same result as law and economics, social obligation theory provides a superior explanation. At a normative level I argue that the version of the social-obligation norm that I develop here is morally superior to other candidates for the social-obligation norm. It is so because it best promotes human flourishing, i.e., enabling individuals to live lives worthy of human dignity. Drawing on Martha Nussbaum's capabilities approach (which itself is based on the Aristotelian notion that the human being is a social and political animal, not self-sufficient alone), the social obligation theory holds that all individuals have an obligation to others in their respective communities to promote the capabilities that are essential to human flourishing (e.g., freedom, practical reasoning). For property owners this has important consequences. 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. But 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.

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