Ownership and Obligations: The Human Flourishing Theory of Property (original) (raw)

The thesis of this brief paper is straightforward, although not uncontroversial: The moral foundation of property, both as a concept and as an institution, is human flourishing. In the remainder of my remarks I will explain what I mean by human flourishing, as I use the term, and I will distinguish human flourishing from welfare as that term is commonly used today by economists and legal analysts. I will then briefly illustrate the approach through an example. Private property ordinarily triggers notions of individual rights, not social obligations. After all, the core function of private property, at least according to conventional lore, is to insulate individuals from the demands of society both in its organised political form and its nonpolitical collective form. Of course, the common law has long recognised limits on the exercise of property rights, limits that grow out of the needs of others in cases of conflicting land uses. The obvious example is the common law of nuisance, which courts developed using the ancient maxim sic utere tuo ut alienum non laedas ("use your land in such a way as not to injure the land of others") as their guiding principle. But such limits on property rights are considered the exception, not the rule, the periphery rather than the core. 2 The core image of property rights, in the minds of many people, is that the owner has a right to exclude others and owes no further obligation to them. 3 On this view trespass is the paradigmatic cause of action in the law of property. Hence if another intentionally commits trespass upon my land after I have refused permission to pass across it, the trespasser is properly liable for punitive damages even though only trivial damage was done to my property. 4 That image is highly misleading. The right to exclude itself, thought by many to be the most important twig in the so-called bundle of rights, 5 is subject to many exceptions, both at common law and by virtue of statutory or constitutional provisions. For example, the common 1 A. Robert Noll Professor of Law, Cornell University. This paper was originally delivered as a lecture at the University of Hong Kong Faculty of Law. I am grateful to the Faculty for the invitation and especially to Professor Guanghua Yu for making the arrangements and for his hospitality. 2 This is essentially the thesis of Henry E. Smith, "Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law" (2009) 94 Cornell Law Review 959. Indeed Smith uses the very imagery of core and periphery.