SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
243
ARTICLE
AFTER THE FLOOD: EQUALITY & HUMANITY IN PROPERTY REGIMES
Joseph William Singer*
TABLE OF CONTENTS
I. CONTESTED TERRAIN................................................... 245
A. WHAT WE LEARNED FROM HURRICANE KATRINA....... 245
B. WHY WE HAVE ALREADY BEGUN TO FORGET ( AND WHY IT IS SO HARD TO REMEMBER)............................ 247
C. POVERTY & PUBLIC PHILOSOPHY................................ 252
II. TWO VIEWS OF GOVERNMENT.................................... 254
A. SMALL GOVERNMENT................................................... 254
1. LIBERTARIAN INSTITUTIONALISM........................... 254
2. THE LIBERTARIAN FANTASY................................... 256
B. DEMOCRACY & SOCIAL JUSTICE................................... 259
1. DEMOCRATIC PRAGMATISM..................................... 259
2. POVERTY & HUMAN FREEDOM............................... 261
* Professor of Law, Harvard Law School. Thanks and affection go to Martha Minow, Dan Kanstroom, Rabbi Jonathan Kraus, John Lovett, Martha McCluskey, Lila Singer, Mira Singer, Robert Singer, Laura Underkuffler, Johan van der Walt, and Keith Vetter. I also thank Alec Karakatsanis for extraordinarily helpful research assistance as well as helpful conversations. I would also like to thank the students in my 1L reading group at Harvard Law School on the Ownership Society and my seminar on the Ownership Society at the University of Hawaii William S. Richardson School of Law for their insightful comments and thoughts on the nature of ownership, including Lori Baker, Tim Cahill, Sarah Carter, Stanley Chang, Jesse Gabriel, Roman Goldstein, Chris Goodin, Rebekah Lacey, Scott Linton, Jason Liss, Marshall Mattera, Anderson Meyer, Binford Parker, Blaine Rogers, Joe Shear, David Squeri, Erin Suzuki, Tina Wakayama, and Natalie Wilson. Finally, I would also like to thank Joseph Miller and David Stein for their extraordinary work in reviewing the manuscript of this article, researching the footnotes, and ensuring the accuracy of the factual material presented in it. SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
244 Loyola Law Review [ Vol. 52
C. REFRAMING THE DEBATE............................................. 264
III. RESOURCES FOR RECONSTRUCTION........................ 267
A. PROPERTY LAW: THE INSTITUTIONAL FRAMEWORK OF A FREE & DEMOCRATIC SOCIETY............................ 267
1. PROPERTY & SOCIAL RELATIONS............................ 267
2. PROPERTY, THE FREE MARKET, & REGULATION.... 270
3. PROPERTY AS A REGIME.......................................... 273
4. REGULATORY TAKINGS, JUSTIFIED EXPECTATIONS & HURRICANE KATRINA................ 282
B. PHILOSOPHY & POLITICAL THEORY: REASON, RESPONSIBILITY, & THE SOCIAL CONTRACT................ 288
1. MORAL REASONING................................................. 289
2. SOCIAL CONTRACT THEORY.................................... 292
3. TAKING EQUAL OPPORTUNITY SERIOUSLY............. 296
4. DECONSTRUCTION, CRITICAL LEGAL THEORY & RESPONSIBILITY...................................................... 297
C. RELIGION: HUMAN DIGNITY & THE GOLDEN RULE..... 300
1. THE ROLE OF RELIGION IN PUBLIC JUSTIFICATION........................................................ 300
2. AFTER THE FLOOD: WHAT THE TORAH TEACHES US............................................................................ 307
a. Human Dignity: Infinite Importance of Each Person................................................................ 307
b. Equality: Each Person Matters........................ 311
c. Responsibility: The Parable of the Marked Money................................................................ 314
3. BENEFICENCE AND JUSTICE................................... 324
IV. A NEW BOTTOM LINE: SECURING THE BLESSINGS OF LIBERTY............................................... 329
A. GOVERNMENT AS INFRASTRUCTURE............................ 329
B. RECONSTRUCTION & HUMAN VALUES......................... 332
C. HUMANITY.................................................................... 338
If a poor person came to Sodom, every resident pretended to give charity by handing the traveler a coin. But they wrote their names on those coins and when the coins were offered to the store owners for bread, the shop keepers would see the names and refuse to accept the marked money. Because the residents would not give or sell bread to the poor, the poor would die in the street, and then the residents would come to SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 245
take back their money.**
— Babylonian Talmud, Sanhedrin 109a
Property rights serve human values. They are recognized to that end, and are limited by it.***
— Justice Joseph Weintraub Supreme Court of New Jersey ( 1971)
The compassionate imagination provides information essential for economic planning, by showing the human meaning of the sufferings and deprivations different groups of people encounter.****
— Martha Nussbaum
I. CONTESTED TERRAIN
A. WHAT WE LEARNED FROM HURRICANE KATRINA
Like September 11th, Hurricane Katrina changed our national conversation— at least for a while. For the first time in many years, both politicians and the media paid attention to poverty. We saw first hand what it means to be poor. We saw people out of options; we saw people who were desperate; we saw people left behind; we saw people begging for help. We saw people who lost their lives. We saw the human beings behind the abstractions. We saw what happens when we push poor people off the national agenda.
We learned, in short, that poverty is still a problem in the United States. The poor do not have what they need; nor do they have what they deserve. But the problem is deeper than this. There appears to be little room for the poor to use self- help to escape from poverty. Our economy has not seemed capable recently of generating such an escape route; nor has public policy
** This is my interpretation of the original Talmudic text filling in the blanks to make the story comprehensible and to flesh out the way the original text has been interpreted by subsequent generations of rabbis. The original is roughly “ If a poor man happened to come there, every resident gave him a denar [ a coin], upon which he wrote his name, but no bread was given. When he died, each came and took back his ( denar).” Robert Kaiser, What was the Sin of Sodom?, http:// www. iwgonline. org/ d
ocs/ sodom. html ( last visited May 23, 2006).
*** State v. Shack, 277 A. 2d 369, 372 ( N. J. 1971).
**** Martha Nussbaum, Upheavals of Thought: The Intelligence of Emotions 438 ( 2001). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
246 Loyola Law Review [ Vol. 52
been able to open such a path for all who need it. One reason for this lacuna is the growing inequality of both income and wealth. 1 It was, after all, the huge and increasing gap between those who are well off, and those who are not, that allowed the haves to believe that things were going all right for the have- nots. Those of us who are doing all right have failed to pay adequate attention to the plight of those who are not doing all right. And those who struggle have an even harder time focusing on those who are desperate. Hurricane Katrina demonstrated that continuing racial divisions in access to the benefits of economic life may be one reason for this lack of attention.
This was a problem then, not only of material resources, but of human dignity. We, as a country, have failed in our obligation to treat every person with equal concern and respect; we acted humanely by raising millions of dollars to help the victims of the hurricanes and seeking to help them in other ways as well. But we did it after the fact when the harm was already done. As a nation, we were indifferent to what needed to be done to prevent the disaster from occurring at all, or to alleviate the poverty that Katrina made so painfully evident. 2 Somewhere along the way, we compromised our humanity.
We learned something else as well. Again, as in the case of September 11th, we learned why we need government. The rich, as well as the poor, suffered from the broken levees. Everyone in New Orleans needed government services to protect their lives and their homes. We heard loud demands for government action; we heard condemnations of the slow, incompetent response; we decried the appointment of marginally qualified political allies to positions of national trust. After years of hearing government employees derided as meddlesome bureaucrats, we remembered that they are public servants; we remembered why we need their services; we remembered that we ask many of them to risk their lives on our behalf. We remembered that some of them give their lives for us; we remembered how easy it is to forget to thank them or to value their service in the way we should. And now, ten months after the flood, the need for government services in
1. See BRIAN BARRY, WHY SOCIAL JUSTICE MATTERS 12- 13 ( 2005) ( asserting that there is a “ monstrous” inequality of incomes that leave the bottom half of the population sharing 13 percent of the total income).
2. See MICHAEL LERNER, THE LEFT HAND OF GOD 222- 223 ( 2006) ( arguing that we as a country did not take adequate steps to avoid the New Orleans tragedy). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 247
rebuilding New Orleans is undisputed. The rebuilding process involves many contentious issues, but the need for government involvement in that process is not one of them.
B. WHY WE HAVE ALREADY BEGUN TO FORGET ( AND WHY IT IS SO HARD TO REMEMBER)
But there were also things we did not hear; there were also things we did not remember. We did not hear reasons why the American public should be taxed to pay for the government response that Americans demanded. We heard righteous indignation at incompetent government action, but we did not hear loud demands for better land use planning to avoid such disasters in the future. With some exceptions, we did not hear an outcry for greater government regulation designed to protect the public from environmental disasters. Indeed, some argued that the incompetent government response to Hurricane Katrina proved, once again, that government could not be trusted to solve our problems and that we should rely more heavily on the private sector. We heard an outcry about the extent and effects of poverty in America, but we did not hear a call for new government regulation designed to eliminate poverty. We have been told for so long that government is the problem, that it was not clear whether there was anything useful for government to do other than to get out of the way. Yet people wanted something done; they demanded an effective governmental response to the destruction of much of New Orleans and the scattering of its people. But they seemed not to be able to bring themselves to accept the fact that answering their demands of necessity involved both taxation and regulation.
Upon being sworn in to his second term of office as President of the United States, President George W. Bush announced his hope that we could create an “ ownership society” that would spread the benefits of ownership, giving people greater freedom, security, independence, and dignity. 3 Upon being criticized for
3. On January 20, 2005, President Bush said:
In America’s ideal of freedom, citizens find the dignity and security of economic independence, instead of laboring on the edge of subsistence. This is the broader definition of liberty that motivated the Homestead Act, the Social Security Act, and the G. I. Bill of Rights. And now we will extend this vision by reforming great institutions to serve the needs of our time. To give every American a stake in the promise and future of our country, we will bring the highest standards to our schools, and build an ownership society. We will widen the ownership of homes and businesses, retirement savings and health insurance— preparing our people for the challenges of life in a free society. By making every citizen an agent of SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
248 Loyola Law Review [ Vol. 52
not responding adequately to the devastation in New Orleans and the Gulf Coast after Hurricane Katrina, President Bush announced that “[ i] n America, we do not abandon our fellow citizens in their hour of need[; rather, we] have a responsibility to our brothers and sisters” who are “ suffering,” “ angry and desperate for help.” 4 The image of an ownership society suggests that the goal is to increase independence and self- reliance while the image of the responsive community suggests that we depend on each other and have obligations to respond collectively to those who are in need or are suffering. Promoting ownership appears to mean decreasing government regulation, but responding to need seems to suggest a role for government in coordinating those efforts and ensuring that they happen. Can these views be reconciled?
Hurricane Katrina reminded us that we need government, that we have not paid sufficient attention to the poor, and that the policies we have pursued as a nation have fallen short in spreading the benefits of economic opportunity and personal security. But ten months later, we have already begun to forget these things. Decades of Republican success have shaped our national conversation about the economy by framing public policy issues in a manner that has made both taxation and regulation into fighting words. We want to respond to human need and we want government to be involved in this effort, but if all government action is suspect, it is hard even to begin thinking about this task.
President Bush’s proposal to create an ownership society sought to fill this void. In so doing, he suggested making every
his or her own destiny, we will give our fellow Americans greater freedom from want and fear, and make our society more prosperous and just and equal.
White House Press Release, President George W. Bush, Inaugural Speech, Jan. 20, 2005, http:// www. whitehouse. gov/ news/ releases/ 2005/ 01/ 20050120- 1. html ( last visit- ed May 23, 2006).
4. The full quote is:
I know that those of you who have been hit hard by Katrina are suffering. Many are angry and desperate for help. The tasks before us are enormous, but so is the heart of America. In America, we do not abandon our fellow citizens in their hour of need. And the federal government will do its part. Where our response is not working, we’ll make it right. Where our response is working, we will duplicate it. We have a responsibility to our brothers and sisters all along the Gulf Coast, and we will not rest until we get this right and the job is done.
White House Press Release, President George W. Bush, Address to the Nation Discussing Hurricane Katrina Relief Efforts, Sept. 3, 2005, http:// www. whitehouse. go
v/ news/ releases/ 2005/ 09/ 20050903. html ( last visited May 23, 2006). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 249
person an owner, thus promoting both equality and liberty. He evoked an image— a society of owners secure in their control of their property, free from government interference or coercion. The key terms in this libertarian picture are liberty and property. In this framework, regulation deprives us of liberty, and taxation deprives us of property. But the framework unravels. Expanding ownership suggests increased liberty and smaller government but if experience is any guide, the normal operation of the free market produces both poverty and inequality. We have a paradox: we want government to promote economic opportunity but we don’t seem to want the government either to tax or to regulate; but these are the ways that government responds to social problems. What really do we want out of government? And are we serious about helping the poor?
This turn in public rhetoric has affected liberals as much as conservatives. Liberals want to curtail the excesses of the marketplace and create appropriate mechanisms to promote equality and security so that every person has access to the resources necessary to lead a fulfilling life. Liberals have sometimes attempted to use conservative rhetoric to defend liberal values, and while this approach has something to commend it, conservative rhetoric will not be sufficient to articulate liberal values. Liberals seem to have lost the ability to defend their core values in the face of the conservative onslaught on taxes and regulation. One looks in vain for a successful progressive alternative to the reigning libertarian framework. George Lakoff has emerged as a public intellectual for pointing out how conservative rhetoric has eclipsed liberal rhetoric and for his efforts to construct a liberal alternative. 5 This alternative is needed now more than ever. Moreover, liberals need not just an alternative rhetoric but an alternative worldview— a new way to conceptualize the role of government in social life and the relations between the public and private spheres.
Paradoxically, conservatives need a new paradigm as much as liberals do. We sometimes forget that conservatives value government as much as liberals do; they are, after all, not
5. GEORGE LAKOFF, DON’T THINK OF AN ELEPHANT: KNOW YOUR VALUES AND FRAME THE DEBATE— THE ESSENTIAL GUIDE FOR PROGRESSIVES xvi ( 2004) ( explaining that Americans need a clear moral vision, “ one that lies behind everything Americans are proud of”). For further discussion of this topic see generally GEORGE LAKOFF, MORAL POLITICS: HOW LIBERALS AND CONSERVATIVES THINK ( 2002). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
250 Loyola Law Review [ Vol. 52
anarchists. Their world view contains a libertarian core and a liberal margin; President Bush proposed partial privatization of Social Security not abolition of it. Despite the push for deregulation and privatization, we have a host of regulatory laws that remain very popular and in no danger of being scrapped, including consumer protection laws, insurance regulations, zoning laws, antidiscrimination laws, marriage regulations, parental support obligations, health and safety laws, workers compensation laws, and banking and securities regulations. We do not have national health insurance but when uninsured people come to the hospital seeking emergency care, we want hospitals to provide it; doctors and nurses do not sit back and watch uninsured people die in the streets in front of the hospital. In fact, federal law requires most hospitals to provide such care. 6 That care, of course, is costly and it is spread around to the rest of us.
Conservatives may wish to change the nature of the regulations that do exist but few are arguing to erase them entirely; conservatives are loath to recognize the liberal margin surrounding their libertarian core but neither do they seem ready to abandon it. Conservatives are in favor of limits on liberty to protect the rights of the individual; they are in favor of government action to establish and protect a regime of private property. They simply want government to do different things than liberals want government to do. But conservative rhetoric, like liberal rhetoric, does not have the tools to support the types of taxation and regulation that conservatives themselves seek.
The task of rebuilding New Orleans brings these issues to the forefront. Some, like Dennis Hastert, suggested that there was no reason to rebuild New Orleans. 7 Others have echoed his
6. See The Emergency Medical Treatment and Active Labor Act, or EMTALA, 42 U. S. C. § 1395d( d) ( 2000) ( requiring hospitals receiving Medicare funds to provide appropriate emergency treatment); see also 42 U. S. C. § 1395c( c) ( 2000) ( defining participating hospitals); 42 C. F. R. § 489.24 ( 2005) ( delineating regulations enforcing EMTALA).
7. Patrick Waldron, Hastert Says Rebuilding Isn’t Sensible, CHICAGO DAILY HERALD ( ARLINGTON HEIGHTS, IL), Sept. 1, 2005, at 12. But see John Patterson, Hastert Backs Off New Orleans Comments, DAILY HERALD ( ARLINGTON HEIGHTS, IL), Sept. 2, 2005, at 9 ( describing Hastert’s attempts to clarify his comments following public criticism). See also Joseph B. Treaster & Deborah Sontag, Despair and Lawlessness Grip New Orleans as Thousands Remain Stranded in Squalor, N. Y. TIMES, Sept. 2, 2005, at 1 ( discussing Hastert’s comments regarding his reservations about rebuilding and his later attempt to clarify the meaning of those comments); In SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 251
words— and those others have included liberals as well as conservatives; they have asked whether it makes sense to even have a city, much of which is located below sea level. 8 Yet Hastert’s comment was immediately shot down by politicians across the political spectrum, from President Bush to the Democrats. What stands out is that, even in this age of conservative triumph and enthusiasm for market solutions to all problems, the call for government action in response to Hurricane Katrina was overwhelming.
Yet the contours of that response are still emerging, and already we see old battle lines being drawn. On the environmental front, it is apparent that development in New Orleans has altered the natural state of things in a way that may have exacerbated the human consequences of the hurricane. The importance of wetlands and fragile coastal areas is more obvious than ever. A sensible response requires some form of governmental regulation of land use that may be different from what we have done in the past; rebuilding marshes and wetlands may be crucial to protect New Orleans in the future. The rebuilding effort itself, supported by Republicans and Democrats alike, will require billions of dollars of government expenditures, yet no one has proposed to tax the American people to generate the funds to pay for these expenditures. The public has reacted with compassion and concern for the hurricane’s human victims and has sought some answer to the conditions of poverty that were so painfully revealed by this disaster. Yet if we view both regulation and taxation as our mortal enemies, it is unclear how government can act to combat poverty without involving itself in activities we claim to abhor.
Americans have always been of two minds about government. We are a nation that prizes liberty and views government as a threat to our freedom. But we are also a nation that teaches our children that “ all [ people] are created equal” and that it is precisely because we sought to “ secure the blessings of
Brief, WASH. POST, Sept. 2, 2005, at A15 (“ It makes no sense to spend billions of dollars to rebuild a city that is seven feet below sea level, House Speaker Dennis Hastert ( R- Ill.) said of federal assistance for hurricane- devastated New Orleans.”).
8. Melissa Harris Lacewell, Beyond Repair, THE AMERICAN PROSPECT, March 2006, at 9, available at http:// www. prospect. org/ web/ page. ww? section= root& name= Vi
ewPrint& articleId= 1169 ( last visited May 23, 2006) ( wrestling with the question of whether rebuilding in place is the best thing for African American residents of New Orleans). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
252 Loyola Law Review [ Vol. 52
liberty to ourselves and our posterity” that we did “ ordain and establish [ the] Constitution for the United States of America.” 9 Let me repeat that because you may have missed it. Although we fear that government impinges on our freedom, we established government to promote freedom. It seems that we need government if we want to “ secure the blessings of liberty.” 10 We need it but we fear it. Government can promote liberty but it can also oppress. How can we tell the difference?
C. POVERTY & PUBLIC PHILOSOPHY
Our ambivalence about government makes it hard to figure out whether and how to think about the poverty we observed in the wake of Hurricane Katrina. We have immediately reverted to old debates. The first thing the Bush administration sought to do was to protect contractors rebuilding New Orleans from having to comply with bothersome environmental laws, and to attempt to relieve them from the burden of paying the local prevailing wage. 11 Lowering the costs of doing business is supposed to give incentives for the market to step into the fray and efficiently clean up the mess and rebuild the city. Liberals respond by pointing out that it was precisely the lack of adequate attention to environmental impacts of development that got us into this mess in the first place, and it is more than a little ironic that the first thing we do to help poor people is to allow businesses to pay them wages that are too low to live on. How do we get beyond these old debates?
9. U. S. CONST. pmbl.
10. JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT ¶ 57, at 32- 33 ( Thomas P. Peardon ed. 1952) ( 1690).
[ T] he end of law is not to abolish or restrain but to preserve and enlarge freedom; for in all the states of created beings capable of laws, where there is no law, there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is not law; but freedom is not, as we are told: a liberty for every man to do what he lists— for who could be free, when every other man’s humor might domineer over him?— but a liberty to dispose and order as he lists his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.
Id.
11. Thomas B. Edsall, Bush Suspends Pay Act in Areas Hit by Storm, WASH. POST, Sept. 9, 2005, at D03. Congress rejected the attempt to relieve government contractors of the burden of complying with the Davis- Bacon Act, causing President Bush to rescind his unilateral decision to suspend the Davis- Bacon wage protections in areas affected by Hurricane Katrina. Press Release, Committee on Education & the Workforce, Democratic Staff, U. S. House of Representatives, http:// edworkforce. h ouse. gov/ democrats/ katrinalocalwages. html ( last visited May 23, 2006). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 253
Nor do we have consensus on how to respond to the problem of poverty that was so visible on our television sets. John Edwards has begun a national campaign to abolish poverty. 12 That would seem to be a goal we could all get behind; if that is true, the only question would be how to identify the right means to accomplish this end. But even if we agree that poverty is a problem, it is not in fact clear that we agree that government should be involved in solving that problem; why not promote personal responsibility and charitable aid instead? To answer this question, we need a realistic sense of the relation between government and society – one that recognizes the essential role of government, including the benefits of taxation and regulation, but which also acknowledges the ways in which government action can interfere with both liberty and property, and even exacerbate the problems of the poor. However, our current way of thinking about the relation between government and liberty cuts off reasoned debate on this issue.
We need a new way to talk about government, taxation, and regulation. The dispute between liberals and conservatives is usually framed as a contest between regulation and deregulation, between big government and the private sector, between a coercive, command- and- control economy and the free market. The legal realists taught us long ago that this way of conceptualizing the relations between the public and private sectors is misleading; this is a false set of dichotomies. As I have said, conservatives want regulation as much as liberals do; they simply want it to have a different shape. Liberals value the free market as much as conservatives do; they simply want it to have a different shape.
The legal realists suggested that we think about human interests and the ways in which law adjudicates conflicts between conflicting interests to promote public policy goals. 13 This proposal has been remarkably successful in the law schools and
12. See One America for All of Us, John Edwards Campaign Website, http:// www. oneamericacommittee. com ( last visited May 23, 2006) ( outlining Edwards’ campaign goals including eradication of American poverty). See also LERNER, supra note 2, at 222 ( arguing for the “ permanent elimination of poverty in the United States”).
13. See generally AMERICAN LEGAL REALISM ( William W. Fisher III, Morton J. Horwitz & Thomas A. Reed eds., 1993) ( discussing legal realism); Joseph William Singer, Legal Realism Now, 76 CALIF. L. REV. 467 ( 1988) ( discussing the legacy and impact of the legal realism movement). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
254 Loyola Law Review [ Vol. 52
the courts; interest balancing became, for a while, the central paradigm in law. But it did not really challenge the old picture of government as a threat to private interests. That image remained and has been strengthened in recent years. If we want to think clearly about the choices available to us, we must recapture the sense that government does positive things for us. How can we move forward in recapturing a positive role for government while retaining our sensitivity to the ways in which concentrated power may lead to oppression?
II. TWO VIEWS OF GOVERNMENT
A. SMALL GOVERNMENT
1. LIBERTARIAN INSTITUTIONALISM
We can begin by reframing the debate. Let’s start with the prevailing conservative view that the best government is a small government. This worldview is articulated by modern understandings of John Locke14 captured most successfully in the work of philosopher Robert Nozick. 15 This view suggests that the most important value is liberty and it conceptualizes liberty as the freedom to live one’s life according to one’s own design, subject only to reasonable limits that are necessary to protect the similar liberty of others. 16 Government regulation sets those limits on our liberty, with the goal of providing us with the maximum liberty possible. Those limits shape the contours of our basic institutions, including the free market, private property, and the family. To promote liberty, we therefore should create the right institutions and let individuals then be free to make their way in a world that is organized by that institutional framework.
The institutions we need are a limited government and laws that set the background rules for operation of a market economy, including laws defining the allocation and definition of property rights, laws providing for efficient enforcement of contracts, laws
14. See generally LOCKE, supra note 10 ( outlining Locke’s philosophy concerning individual liberty).
15. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA ( 1974).
16. See CHARLES LARMORE, THE MORALS OF MODERNITY 124 ( 1996) (“ Liberalism does not really equate liberty with license and law with burden. Against such an equation stands, for example, Locke’s insistence that ‘ the end of law is not to abolish or restrain, but to preserve and enlarge freedom . . . where there is no law, there is no freedom.’”). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 255
regulating actions that cause unreasonable harm to others, and laws regulating family relationships— in short, the rules of property, contracts, torts, and family law that set the basic ground rules for a market economy. If we create the proper institutions and both minimize government intrusion and maximize the sphere of individual liberty, while ensuring equal access to the market economy, then anyone can participate in social and economic life and act to bring herself out of poverty.
This worldview leads to an inexorable conclusion: Once the right institutions are created, whatever amounts of poverty exist are amounts with which we have to live. Once we have defined the right institutions, there is nothing more for government to do. If we have created the right institutions, then the poor should be able to accept personal responsibility to pull themselves up by their own bootstraps. We have created the environment that allows them to do this. Those who remain poor once we have created the right institutions have only themselves to blame. Moreover, anything we do collectively to respond to poverty through governmental action only makes the situation worse. Governmental action to respond to poverty harms the institutions that generate wealth and creates perverse incentives for poor people and thus only hurts the people we are trying to help. If poverty remains after the right institutions are in place, then that is the best we can do; the poverty that remains is the price we pay for living in a civilized society. If individuals still have a desire to help those who are poor, they are free to do so through private charity and religious organizations.
This worldview is often called laissez- faire, but that characterization is misleading. While the small government vision is designed to maximize liberty, it does not eschew government regulation; indeed it is premised on the idea that liberty cannot exist without law. A small government is nonetheless a government. A free market is nonetheless governed by rules. Governments, property, markets, and families are institutions, and the small government worldview wants them to exist and to have a certain character. The law imposes the rules that define the institutions. The libertarian conception of a free society is a form of institutionalism. The major feature of an institutionalist conception is that it presumes that we can identify the best institutions, including governmental structure, market mechanisms, and family structure, by reference either to an a priori view about the contours of a free society or by SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
256 Loyola Law Review [ Vol. 52
reference to the predictable results of different institutional frameworks. Once we have identified those best institutions and set them up, then there is nothing further for government to do. Any poverty we observe is either inevitable or the fault of those who failed to take advantage of the opportunities the institutions provided them. 17 If the institutions are the right ones, then there should be no poverty. If there is poverty, it is not the fault of the institutions, or of the government, or of society as a whole. The institutions can be defined, in some sense, independent of the consequences. Some who hold this view are comfortable living in a society with a fair amount of poverty. Others are worried about it but are resigned to the fact that government can do nothing to help; the only remedy is private charity.
2. THE LIBERTARIAN FANTASY
There are two major flaws in this paradigm. The first flaw in the libertarian framework is that it is premised on the fiction that equal opportunity can exist despite the presence of wide scale inequalities of income, wealth, and social circumstance. Brian Barry, a philosopher at Columbia University, has recently explained the myriad of ways in which unequal starting points in wealth, health, education, and family and social circumstances severely undermine the notion that every child has a fair and equal starting point. 18 Creating equal opportunity in fact would require a great deal more government regulation than libertarians are willing to admit.
The second flaw in the libertarian paradigm is that it presumes that not much government is needed to make the system work. All I can say is that if this were so my property casebook would be a few dozen pages long instead of 1300 pages long. When Czechoslovakia broke from the Soviet Union in 1989, the foreign minister of Czechoslovakia commented that “[ i] t was easier to make a revolution than to write 600 to 800 laws to create a market economy.” 19 The libertarian notion of small government suppresses the number and complexity of choices
17. See MARTHA NUSSBAUM, UPHEAVALS OF THOUGHT: THE INTELLIGENCE OF EMOTIONS 414 ( 2001) (“ A compassionate society might still be an unjust society . . . . It might blame the poor for their plight and fail to blame those who exploit them.”).
18. BARRY, supra note 1, at 40- 42 ( explaining that all children do not enter the race to success with equal opportunities to win).
19. Jiri Dienstbier, quoted in William Echikson, Euphoria Dies Down in Czechoslovakia, WALL ST. J., Sept. 18. 1990, at A26. SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 257
that must be made to define the basic framework of a market economy. These choices are embodied in law and public policy, and the laissez- faire ideology has always been associated with a lot more government regulation than its adherents are willing to admit. 20
Take this example: libertarians are ordinarily strong advocates of property rights, and they do not sufficiently appreciate the dilemma this puts them in. Consider Donald Lamp, the father- in- law of Justice Clarence Thomas. After September 11, he put an American flag outside the balcony of his condominium in a retirement community. 21 But his condominium association told him to take it down; they had a rule against exterior hangings— no banners, no flags, no wind chimes. When he refused to take down his flag, the national press got wind of the story, and the condominium association backed down, making an exception to the policy for American flags. Every year when I teach this case, I am interested to know what my libertarian students will say about it because I never know what position they will take.
This year I had two such students – both brilliant and articulate. They both favor small government and a maximum range for individual liberty. One argued that we should promote freedom of contract and that when Lamp bought his condominium, he had implicitly promised to abide by the condominium rules promulgated by the condominium association; therefore, he simply did not own the right to put the American flag outside his condominium balcony. It would be paternalistic government regulation, she argued, to refuse to enforce a clear contractual provision that he had voluntarily agreed to when he bought the place. The government should defer to the will of the parties and enforce the contract; no flag on the balcony. But my other libertarian student argued just as forcefully that it would be an oppressive interference with individual liberty and with property rights not to allow a property owner to fly the American flag outside his own home after an attack on the United States. Use of state power to prevent him from doing so at the behest of his neighbors denied his liberty to express his views and to
20. Seegenerally RICHARD EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD ( 1997) ( arguing for increased autonomy).
21. Tony Mauro, An Unwelcome Mat for Free Speech, USA TODAY, Aug. 18, 2004, at 13A. SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
258 Loyola Law Review [ Vol. 52
control his own property. Just as slavery contracts are unenforceable because they attempt to alienate inalienable rights, the condominium declaration could not be legally enforced if it submitted the owner to the tyrannical control of his neighbors. We have no titles of nobility in the United States and no law can give our neighbors the right to act like feudal lords.
The point is not to take a position on this dispute but to emphasize that a society that has strong protection for property has rules of property law that grant owners of property autonomy within the borders of their land, protecting them from being controlled by others, whether those others are prior owners, busybody neighbors, or government bureaucrats. To achieve this degree of autonomy, control, and liberty for owners, we must refuse to enforce contracts that limit what owners can do with their land; one must regulate contracts to ensure that owners are free to act like independent citizens rather than like feudal serfs.
It is possible, in other words, to conceptualize government regulation as liberty- promoting; after all, the prohibition on assault and battery increases our liberty to walk around. Similarly, prohibitions on pollution can be defended as protection for the health and property of others. Regulations can be conceptualized as protections for life, liberty, and property. 22 It is perhaps not an exaggeration to say that when libertarians want regulation, they call it “ protecting property rights.” But this verbal trick does not change the fact that protection for liberty and property is effected by laws that limit both liberty and property, and, as I have noted, the libertarian view severely underestimates both the number and complexity of those necessary laws. Small government is an idea that has intuitive appeal, but it fails to recognize that regulations are generally designed to limit one person’s freedom to protect another’s freedom. In such cases, the question is not whether government should intervene but on whose behalf it should do so. 23
22. See LARMORE, supra note 16, at 124 (“[ L] aw does not simply limit freedom, but rather makes it possible.”).
23. See Martha T. McCluskey, Changing, Not Balancing, the Market: “ Economic” Politics and “ Social” Programs, PROGRESSIVE LAWYERING, GLOBATLIZATION AND MARKETS: RETHINKING IDEOLOGY AND STRATEGY ( Clare Dalton ed., forthcoming 2006) ( manuscript in possession of author), available at http:// papers. ssrn. com/ sol3/ p
apers. cfm? abstract_ id= 829264 ( last visited May 23, 2006) ( explaining the political slant to discussions about efficiency and suggesting alternative ways of conceptualizing who is subsidizing whom and who is externalizing costs on others SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 259
B. DEMOCRACY & SOCIAL JUSTICE
1. DEMOCRATIC PRAGMATISM
What is the alternative to the libertarian, institutionalist view? The competing framework is a form of democratic pragmatism. 24 This view focuses less on a priori assumptions about the best institutions and more on the democratic ( small “ d”) goal of spreading the benefits of liberty to everyone and focusing on the ability of institutions to achieve that end. The democratic alternative to the libertarian view assumes that no one would choose to be poor. If poverty exists, then by definition, our institutions have failed to promote social justice and more work needs to be done. 25 This does not mean social justice advocates assume that a democratic society would be devoid of inequality; rather, they assume that the right institutions would not leave people in situations of desperation or undue want and that a society that treated each person with equal concern and respect would be likely to mitigate vast inequalities of wealth and income to ensure that life circumstances are such that all persons can feel that they matter as much as the next person. This view is associated with John Rawls, who argued that the basic institutions of society cannot be just if they do not protect the interests of those at the bottom of the economic ladder. 26
The conflict between these views should not be overstated. Small government advocates generally believe that small government protects the interests of the poor better than do big government intrusive regulation and welfare programs. But what would a libertarian say if it turned out that small
when entitlement claims conflict). See also generally Martha T. McCluskey, Illusion of Efficiency in Workers’ Compensation “ Reform,” 50 RUTGERS L. REV. 657 ( 1998); Martha T. McCluskey, Subsdized Lives and the Ideology of Efficiency, 8 AM. U. J. GENDER SOC. POL’Y & L. 115 ( 2000) ( both showing that distinctions between efficiency and equity are grounded in political rhetoric not fact or logic).
24. For current interpretations of pragmatism as applied to political theory, see generally LARMORE, supra note 16 and ERIC MACGILVRAY, RECONSTRUCTING PUBLIC REASON ( 2004).
25. See IAN SHAPIRO, THE MORAL FOUNDATIONS OF POLITICS 108 ( 2003) (“[ I] f the legitimacy of states is tied to the degree that they preserve or undermine freedom, structural as well as transactional freedom should figure in our analyses.”).
26. For detailed discussion of the argument that justice requires equality for all segments of society see generally JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT ( 2001); JOHN RAWLS, A THEORY OF JUSTICE ( 1971). See also LARMORE, supra note 16, at 146 (“ I am convinced that the norm of equal respect lies at the basis of Rawls’s own theory of justice.”). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
260 Loyola Law Review [ Vol. 52
government did not do a good job of protecting the interests of the poor?
In an article in the New Republic, Jonathan Chait argued that many conservatives would favor what they see as small government even if it did not promote the best interests of the poor. They would do so, he argued, because promoting liberty and decreasing government regulation is more important to them than promoting the well- being of poor people. Pragmatists, on the other hand, are willing to try market solutions to the problems of the poor; they are more concerned with achieving results and less concerned with prejudging the best institutions to achieve those results. 27 I have some sympathy with this way of depicting the current political landscape, but I also think that this way of framing the dispute is somewhat tendentious. I prefer to hold conservatives to their word; I assume they really believe that small government produces better results, at least in the long run. At the same time, Chait is correct that, if conservatives believe that “ small government” helps the poor better than “ big government,” they should explain why getting rid of Social Security, Medicaid, and Medicare would improve the situation of poor families and children. They should explain why decreasing regulation of mining would better serve the interests of miners and their families. They should explain why Herbert Hoover’s response to the Great Depression was better for people than that of Franklin Delano Roosevelt. If they cannot make such arguments, and back them up with evidence, then we do face the possibility that they are more concerned with promoting a certain picture of “ liberty” and “ small government” than they are with promoting the well- being of the poor.
Conversely, it is not necessarily true that liberals are always more pragmatic about achieving their ends. Many liberals are loath to use market mechanisms to solve social problems even when evidence indicates that they may play a useful part in achieving liberal goals. The liberals who complained bitterly when President Clinton moved to “ end welfare as we know it” had legitimate complaints about the loss of protection for poor families; at the same time, it was not exactly obvious that the prior system was actually serving the best interests of poor families and children, and there was no reason to conclude that
27. Jonathan Chait, Fact Finders: The Anti- Dogma Dogma, NEW REPUBLIC, Feb. 28, 2005, at 14. SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 261
the welfare system as it then existed was the best way to respond to the needs of poor families. Liberals need to face facts as much as conservatives do. 28
2. POVERTY & HUMAN FREEDOM
The real debate comes down to this: does the persistence of poverty constitute a serious challenge to the legitimacy of our laws and institutions? Libertarians favor what they call “ small government” both because it promotes liberty and because they believe in the long run this is the best way to help the poor. Pragmatists observe the persistence of poverty over time. They either conclude that experience has already disproved the idea that small government will eradicate poverty or they are unwilling to wait for the long run to see that idea through; they view the failure to help the poor right now as a fundamental institutional failure. They do so because they see poverty as deprivation of freedom and a denial of equal concern and respect for persons. Libertarians, on the other hand, view the government regulations designed to alleviate poverty as fundamental assaults on liberty and for that reason as deprivations of freedom and as a denial of equal concern and respect for persons.
This is a contest of values and it is a fundamental contest. Social justice advocates believe that we, as a society, have obligations to spread opportunity and to make it realistically possible for every person to live a decent and comfortable life, even if this means regulating economic life to achieve this goal. They argue for positive liberty, or the ability to achieve one’s goals. 29 Libertarians, on the other hand, believe that society has
28. See, e. g., Christopher Jencks, Joseph Swingle & Scott Winship, Welfare Redux: Back in 1996, We Were Pessimistic About Reform. We Were Wrong. But New Rules Just Pushed Through May Confirm Our Worst Fears, THE AMERICAN PROSPECT, March 10, 2006, at 36, available at http:// www. prospect. org/ web/ page. ww? section
= root& name= ViewPrint& articleId= 11187 ( last visited May 23, 2006) ( arguing that the 1996 welfare reform law turned out to hurt poor people much less than liberals feared).
29. See NUSSBAUM, supra note 17, at 416.
My own view is that a liberal political society is best advised to describe its basic entitlements as a set of capabilities, or opportunities for functioning, in a number of particularly important areas. In other words, such a society should guarantee to all citizens a basic set of opportunities for functioning, in some central areas of human life that are likely to prove important for whatever else the person pursues.
Id. See also LARMORE, supra note 16, at 123 ( distinguishing between positive and SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
262 Loyola Law Review [ Vol. 52
no such obligation; indeed, they focus on negative liberty, or the right to be free from government regulation. They view government action designed to promote equality as an assault on liberty.
Our political traditions, as they have been interpreted over time, favor the libertarians. 30 From the earliest theorists of classical liberalism, we start our analysis from the assumption that the focus should be on the rights of the individual. We assume that individuals are important and that they are equally important. We then ask, in the social contract tradition of Hobbes and Locke, whether individuals acting to further their own well- being would agree to be bound by a common government. 31 The argument is that they would, but only to the extent that it promotes their self- interest. Hobbes says we agree to obey the Leviathan to save us from violent death and to promote “ commodious living.” 32 Locke similarly argues that we agree to a social contract to increase our security and to promote industry. 33
The classical strategy is to convince people to obey government and to give up some of their liberty and property ( through regulation or taxation) by arguing that this is in their self- interest. This strategy works some of the time. Most people favor zoning law, for example, even though it limits what they can do with their own land because they understand that they
negative liberty); RAWLS, JUSTICE AS FAIRNESS, supra note 26, § 52.1, at 177 ( arguing for positive liberty).
30. But note that the antecedents of current libertarian theory had significant limits to their libertarian instincts. See, e. g., ADAM SMITH, 1 AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 80 ( Edwin Cannan ed. 6th ed., Methuen & Co. 1950) (“ No society can surely be flourishing . . . of which the far greater part of the members are poor and miserable.”).
31. See generally THOMAS HOBBES, LEVIATHAN ( C. B. MacPherson ed. 1968) ( 1651) ( exploring the origins of human society); LOCKE, supra note 10, at ( describing the possible reasons why people give up some liberty to form social institutions).
32. HOBBES, supra note 31, at 227 ( government is instituted “ to defend them . . . from the injuries of one another . . . and to secure them in such sort, as that by their owne industrie, and by the fruites of the Earth, they may nourish themselves and lived contentedly . . . .”). See also Id. at 254 (“ preservation of life being the end, for which one man becomes subject to another”); id. at 188 (“ The Passions that encline men to Peace, are Feare of Death; Desire of such things as are necessary to commodious living; and a Hope by their industry to obtain them.”).
33. LOCKE, supra note 10, at 70- 73 ( explaining that although man is inherently the absolute lord of his own person and things, he remains willing to join a united society “ for the mutual preservation of their lives, liberties, and estates.”) SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 263
benefit more from restrictions on neighboring land than they lose by restrictions on their own land. Some are willing to pay for public schools even though they have no children because they can imagine the consequences to society if we did not have an educated population. Others may be willing to pay taxes to support job training programs that are not provided by the private sector because they can observe the increased crime and insecurity that emerges if many people are locked out of the ability to earn a decent living.
The problem is that recent changes in our economy, our tax system, and our culture have increased inequality in the distribution of both wealth and income in such a way as to undermine the willingness of those with property to share it with the have- nots. 34 The rich have enough property to pay for private schools, and if they are not altruistic, they may vote against tax increases to improve the public schools because their own children will not benefit from those expenditures. They can choose to live in gated communities with private police and private roads. They can, in effect, afford a separate peace. Moreover, the triumph of the small government ideology has convinced many people that government regulation and taxation only hurt the poor anyway. This ideology is comforting; it allows people to act in a self- interested manner and remain convinced that they are doing what is best for others at the same time. In addition, the collapse of manufacturing jobs and the increased squeeze on the middle class has put added pressure on the majority of the population, decreasing even further the willingness to respond to the poor.
That is the current state of things. More and more, the haves may be unwilling to do what is necessary to enable the have- nots to obtain the tools necessary to become haves. 35 For us to improve the situation of the poor, we need to convince those who have property to be willing to act, not out of self- interest alone, but out of a sense of obligation to those who are locked out of the current system or who are relegated to its outer fringes. We must be able to convince people to suffer short- run costs to
34. See JAMES K. GALBRAITH, CREATED UNEQUAL: THE CRISIS IN AMERICAN PAY 3 ( 1998) (“ A high degree of inequality causes the comfortable to disavow the needy.”).
35. See SHAPIRO, supra note 25, at 34 (“ There is, however, no reason to suppose self- interested individual maximizers, of the kind Bentham insists we all are, will ever eschew private benefit in the interests of the general interest.”). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
264 Loyola Law Review [ Vol. 52
obtain long- run benefits. But more than this: the democratic pragmatists are asking those of us who have property to give some of it up when this may not be in our self interest, either in the short or the long run. President John F. Kennedy asked us to consider, not what our country could do for us, but what we could do for our country. 36 It has been a long time since we have heard such rhetoric and it is not at all clear that it would fall on receptive ears today. Yet it also appears that an appeal to self- interest is not a strong enough engine to drive allegiance to what we used to call the public interest. It is certainly not sufficient to counter conservative rhetoric that demonizes both government and taxes. The question is how to get out of this conundrum. Why should the rich care about the poor anyway?
C. REFRAMING THE DEBATE
Everyone approaches the world from his or her own perspective. I come at this problem as a scholar of property law. I have the same tendency other scholars do to view all things through the lens of my specialty. I do not think that I am wrong, however, to contend that property lies at the center of the rhetorical dilemma that confronts both conservatives and liberals. Property, after all, is the contested terrain between liberty and regulation. Conservatives think of property as resting on the private side of the equation; the protection of property is the protection of the liberty of owners who seek relief from oppressive government regulation. Yet the protection of property only comes from government; it is the state that enforces trespass laws, that enforces the expectations that arise out of lawful contracts, and that imposes damages when one person takes another person’s personal security by negligently harming her body or her property. I have argued that, when libertarians seek government regulation, they call it “ protecting property rights.” Liberals have the opposite problem; in their desire to promote government regulation, they have no cogent answer to the conservative claim that both regulations and taxation take property rights and interfere with liberty. For both liberals and conservatives, the contested terrain between the realm of liberty and the realm of regulation is taken up by property.
36. PRESIDENT JOHN F. KENNEDY, INAUGURAL ADDRESS, Jan. 20, 1961, available at http:// www. jfklibrary. org/ Historical+ Resources/ Archives/ Reference+ Desk/ Speeches
/ JFK/ Inaugural+ Address+ January+ 20+ 1961. htm ( last visited May 23, 2006). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 265
Hurricane Katrina brought the problem of property to center stage. While the flood devastated properties in areas of the city inhabited by all segments of the population, from the very rich to the very poor, it is the poor who could not leave New Orleans in time because they did not own cars; nor did they have money in their bank accounts that would have allowed them to fly elsewhere and stay in a hotel. The hurricane also brought the connection between property and government regulation into sharper focus. In the conservative mindset we have inherited, we generally think of property rights as limiting government power. Thus, the more government, the less property. But here we saw that government action made property possible— indeed, brought it into existence. It did this by building the canals and the levees that encouraged development in areas in which it would otherwise have been too dangerous to live. Government constructed and paid for the infrastructure that allowed a city to be built and businesses and homes to be placed.
Both liberals and conservatives have raised the issue of whether to rebuild in the same places or to move homes and businesses to safer ground. Environmentalists have asked whether the changes we have made in the area have caused the very problems we now seek to fix. The wisdom of past government actions is now at issue. What is not at issue, however, is the impossibility of responding to the situation without substantial government involvement. The demand for government involvement is widespread and powerful but the rhetoric to support it is absent— killed off by the conservative rhetoric. Yet Katrina reminds us that it is part of the core business of government to make it both possible and safe for people to acquire and benefit from private property. Property is at the center of disputes about rebuilding efforts. Importantly, in my view, the relation between property and poverty is at the center of the center.
We can now define the problem I am interested in more precisely. First, I have argued that our inherited traditions and our reigning ideology teach us to be suspicious of government and to be especially suspicious of government efforts to redistribute property and to aid the poor. At the same time, support for government is deeper and more widespread than we are willing to admit. Libertarians favor a good deal of government regulation and the American public strongly supports many particular regulatory programs. Just recall the public demand for greater SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
266 Loyola Law Review [ Vol. 52
government regulation after the mining disasters in West Virginia; recall the demand for an effective government response to Hurricane Katrina. We like the idea of small government in the abstract but when social problems arise we insist on effective and extensive government institutions designed to solve them. 37
Second, in addition to this underlying, perhaps surprising, support for government, it also appears that the American people care about the plight of the poor; they believe that those “ who work hard and play by the rules” should have a decent life. They are worried about the loss of good- paying jobs and they want more time with their families. The American people understood that poverty prevented many people from leaving New Orleans and left them vulnerable to the flood waters. They understand that poverty is still a problem, and that a system which does not make it realistically possible for every person to escape from poverty denies that person’s human dignity. In short, they seem to want something to be done about economic hardship but they cannot see a positive role for government in attaining that end.
Here in a nutshell is the problem. We need a better way to think about the positive role of government in social life. We need a better way to think about the relations between government and society, between regulation and liberty, between taxation and property. I also believe we need conceptions of both property and liberty that allow us to see the ways in which poverty denies liberty, and thus the persistence of poverty constitutes a fundamental institutional failure and the eradication of poverty a core governmental concern. These better ways of thinking may then open the door to rational discussion about alternative ways to restore balance to the distribution of income and wealth in our country.
What resources do we have to help us in thinking about the positive role of government in social life and the importance of alleviating poverty? It turns out that we have strong, traditional resources for helping us think through this question. Those resources include law, political theory, philosophy, and religion.
37. This contrast is similar to the contrast between the idea of property as absolute and the actual institution of property which embodies widespread limitation and regulation. See generally LAURA S. UNDERKUFFLER, THE IDEA OF PROPERTY: ITS MEANING AND POWER ( 2003) ( discussing this contrast). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 267
III. RESOURCES FOR RECONSTRUCTION
A. PROPERTY LAW: THE INSTITUTIONAL FRAMEWORK OF A FREE & DEMOCRATIC SOCIETY
1. PROPERTY & SOCIAL RELATIONS
Long ago, the legal realists taught us to look at legal rights in terms of relations between persons. They applied this lesson to property, redefining it as a bundle of rights regulating relations among persons regarding control of things. 38 This is an easy lesson to forget.
Fifteen years ago, my brother came home to find his house on fire. Luckily, no one was inside. His children were with him and he knew his wife was safe. It was a major fire and a third of the house was completely destroyed. He told me later that, as he stood there, he felt an incredible sense of failure. He felt as if he had not been able to keep his family safe, that he had let them down. Yet in his heart of hearts, he knew, as he was thinking these thoughts, that they were not true. The fire was not his fault; he had not let his family down. He later found out that the fire had been caused by faulty electrical wiring placed in the house by the prior owner many years earlier— a fact of which he could not have been aware.
The fire centered in the back of the house on the second floor just outside the bedroom used by my niece. Her room was completely destroyed. She lost everything she owned— all her clothing, all her stuffed animals, all her books, all her toys, everything that was hers. The rest of the house was severely damaged and many items were unrecoverable.
It took only a few days for my brother and his wife to secure
38. RESTATEMENT OF PROPERTY, introductory note ( 1936), reprinted in A CONCISE RESTATEMENT OF PROPERTY ( 2001) (“ The word ‘ property’ is used in this Restatement to denote legal relations between persons with respect to a thing.”). See also generally Wesley N. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L. J. 16 ( 1913) ( defining legal rights as relations among persons); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975 ( exploring the historical significance of Hohfeld’s view). See also generally JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY ( 2000) ( defining property as social relations). But see Stephen R. Munzer, Property as Social Relations, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 36 ( Stephen R. Munzer ed. 2001) ( criticizing this view). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
268 Loyola Law Review [ Vol. 52
a trailer safely tucked away in their backyard. That trailer was to be their home for the next year as their house was rebuilt. And then came the fights with the insurance company. His insurance contract guaranteed him replacement cost. Within a short time, the company offered to pay a fixed amount to repair the damage— an amount that my brother believed was only about two- thirds what it would cost to repair the place. Even after he hired an insurance adjuster to help him negotiate with the company, it took many months to reach agreement on the amount the company would pay. The figure they eventually agreed upon was very close to my brother’s initial estimate. During that time of negotiation, the insurance company refused to pay anything. My brother tried to get them to pay at least the amount they both agreed was due him; he wanted to use the money to pay the contractor to begin the work of rebuilding. The company refused to pay anything until they had reached agreement on the total amount. Luckily, he had a contractor who was willing to begin work right away without being paid up front. The fight with the insurance company was as painful as the fire in the home.
Yet when my brother tells the story now, he does not talk about the pain. He remembers something else. Before the fire, he thought his security came from the property he had accumulated. And to some extent he was right. He had a job as a family practice doctor in a poor community, he had a house, he had insurance. But the fire put all this in doubt. He still had a job and that was crucial. But his house was gone. His things were gone. And the insurance did not come. He felt as if he were starting from scratch.
But what he says is that something did come; the thing that came was all the people. As he tells the story now, what my brother remembers is the outpouring of support and love that he and his wife and his children received from their family, their friends, the children’s school, their synagogue, their neighbors, his patients. When his daughter’s classmates found out that she had lost all her stuffed animals, every child in the class brought a new stuffed animal to give her to take home. Her bed in the new trailer was literally covered and piled high with her new animal friends. Family and friends brought furniture, clothing, blankets, food, books, a record player and a television. And they visited. They visited and they kept in touch. My brother thought his security came from things but what he learned is that things can go away; what remained were his relationships with other people. SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 269
His real security, what really and truly made him safe and protected, were those relationships.
Of course, that’s not the end of the story either. It is not as if property was irrelevant to his ability to form those relationships. After all, it was his job that gave him the income to buy the house in the neighborhood that allowed him to form those relationships with his neighbors. It was the property owned by friends and family that enabled us to share what we had with him. It was the insurance that eventually enabled him to rebuild and his job that kept them all going. It was their backyard that allowed them to stay in the same community and the children to continue attending the same school. It was a combination of property rights and social infrastructure that brought his family through this. But most importantly, it was the fact that he was not alone and that others felt moved and even obligated to step forward and share what they had. They did this out of affection, but they also did it because they could easily imagine it happening to them. They did what they would want others to do for them. It turns out that property and social relationships cannot be so easily disentangled.
Consider the fact that the residents of New Orleans who left the city in the wake of the hurricane’s devastation all had to go somewhere else. Some had the resources to leave and go to hotels and even to rent or buy property elsewhere. Others moved in with family or friends until their welcome wore out. Still others relied on housing provided by charitable and religious organizations. And those who were served in none of these ways had to depend on governments— local, state, and federal. Indeed, there was widespread agreement that government should step in and be the responder of last resort for those who had no other options. There appeared to be agreement that other cities had to make room for the displaced residents of the Gulf area and New Orleans in particular. This meant that property had to be made available elsewhere, in some way, shape, or form, to provide shelter, food, clothing, medical attention, and other basic services to those who were suddenly bereft of their homes and their communities. 39 The ultimate security, in other words, came from
39. See Pottinger v. City of Miami, 810 F. Supp. 1551, 1583 ( S. D. Fla. 1992) ( holding that Miami could not arrest homeless people for urinating and sleeping in public when it did not have enough beds in city shelters for the resident homeless population). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
270 Loyola Law Review [ Vol. 52
government, and government is not an alien presence, an occupying power; in our democratic system, the government is us. The ultimate security for the victims of Hurricane Katrina was other people, acting collectively, through government channels.
Now perhaps one can argue that the tendency of government to step in at the last minute provides poor incentives. It decreases the sense that one needs to plan for oneself and take care of one’s own family. In the abstract, it may be that this is true; it is not necessarily the case, however, that the best way to provide appropriate incentives is to withdraw from the emergency management business. Moreover, given the observable suffering that came to those who were not able to leave, it is difficult to believe that those left behind were there only because they had planned badly. It is abundantly evident that the great bulk of those who were left behind stayed because they could not leave; they had no transportation, no resources to buy transportation, and inadequate resources to pay for housing elsewhere. Deregulation would not have solved their problems.
More importantly, even those with resources generally obtained some kind of help from others, especially friends, family, and charitable organizations, as well as government agencies. The help provided by these various social institutions was provided because other people wanted to help, because they believed it was the right thing to do, because they would have wished for such help if they had been in the place of the evacuees. At rock bottom, their security came from a combination of their own efforts and the compassion of others. It was the willingness and the desire of other people to help that provided the ultimate safety net. Suppose they had not been there? Suppose they had not responded? Suppose my brother had just lost his job or his job was wiped out along with his home? Suppose he was alone and not connected with friends and family willing and able to help him? What then? And where does government fit in this picture?
2. PROPERTY, THE FREE MARKET, & REGULATION
The traditional understanding of the relation between property and regulation is that they are in mortal tension with each other. Every regulation appears to be a limitation on property rights and every increase in property rights appears to limit the intrusive power of the state. But this traditional SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 271
understanding is fatally flawed. 40 Long ago, one of the great legal realists, Morris Cohen, taught us that all property rights are in fact delegations of sovereign power. 41 After all, the state defines the rules by which property is acquired and the state enforces the rights of owners to exclude non- owners from their land. When an owner wishes to exclude a non- owner from her land, the law of property gives her the power to call on the police to remove the trespasser forcibly from the owner’s land. The conferral of a property right simply means that the owner has the right to call on state officials to enforce her state- granted monopoly over the land which is designated her property. The protection of property is therefore by no means merely an act of individual freedom; it is a claim on state power— a claim which is redeemable to limit the liberty of others.
Consider the owner of a Woolworth’s department store in the South before 1960. The owner has the power to exclude non- owners from the land and chooses to do so by denying African Americans the privilege of sitting at the lunch counter in the store. A customer enters the store and sits at the counter. The attendant sees the customer’s face and asks her to leave; she politely declines. Eventually, the police are called and they come to haul the trespasser off to jail. Now it is clear that this set of property rights gives the owner of the land the freedom to determine who will and who will not enter the store and be served. But it is not fair to say that the situation merely involves protection of the owner’s liberty. The owner’s liberty to choose whom he will serve is backed up in this instance by the common law of property and the criminal law of trespass that entitle the owner to conscript state officials to forcibly limit the freedom of others. The owner’s liberty to exclude is associated with a right to call on state power to control the behavior, and thereby limit the liberty, of others. 42 Protection of the owner’s property rights obviously entails the use of state regulatory power to control the behavior of customers. In other words, property and regulation go together.
Now look at what happened in 1964 with passage of the
40. See generally SINGER, ENTITLEMENT, supra note 48 ( developing this idea).
41. Morris R. Cohen, Property and Sovereignty, 13 CORNELL L. Q. 8 ( 1927), reprinted in AMERICAN LEGAL REALISM 109 ( William W. Fisher III, Morton J. Horwitz & Thomas A. Reed eds. 1993).
42. On the distinction between liberties and rights, see generally Hohfeld, supra note 38; Singer, The Legal Rights Debate, supra note 38. SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
272 Loyola Law Review [ Vol. 52
federal public accommodations law. 43 All of a sudden, it became lawful for individuals to enter the Woolworth’s department store and demand services regardless of their race. If the owner sought to exclude unwanted patrons, state officials would forcibly protect their right to be there. A store owner who sought the help of the police to remove the unwanted patron would not find a sympathetic ear; rather, an owner who refused to serve customers because of their race could find herself subject to a court order to serve those customers— an order potentially enforceable by contempt of court with penalties that could include fines and incarceration. This new situation may seem to be a regulation of the owner’s property rights, depriving her of the power to control access to her land. But of course, from the standpoint of the previously excluded customers, the change is a deregulatory one; they are now free to enter the store and seek service without fear of being hauled off to jail.
What does this teach us about the relation between property and regulation? First, ownership of property includes a bundle of rights and it is often the case that some of those rights are limited to protect the legitimate interests of others. In effect, this means that some of those sticks in the bundle are in fact owned by others and not the person we conventionally think of as the owner of the property. Such allocations of the sticks in the bundle are necessary for a property system to function at all, given the fact that many exercises of property rights interfere with or even harm the property and personal rights of others. Second, we can deduce from this observation that property rights are not absolute. They never were and never could be unless one gives all the property rights to a single person who then is free to rule in the way a king or queen rules her domain.
Third, in most disputes about property, there are property claims on both sides. The owner claims a right to exclude, but the customer claims a right to enter the property to acquire personal property in the form of lunch or a sweater or a pair of pants. If the owner has the right to exclude anyone she wishes, then those on the outside cannot come in to purchase property. A property system includes the right of owners to exclude others from their property, but it must include rules that protect the liberty of persons to acquire property and thereby become owners. If the
43. See 42 U. S. C. § § 2000( a)- 2000( a)( 6) ( 2000) ( defining prohibitions against discrimination and various remedies). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 273
right to exclude is not subject to judicious limitations, then the ability of non- owners to become owners will be correspondingly limited. The right to become an owner conflicts with the right to exclude. We have here a choice of property rights; either there is a right to exclude or a right to enter for the purpose of purchasing property. Either the owner has the absolute right to exclude or the public has an easement of access to public accommodations without regard to race. Protection of one property right can only exist at the expense of the other.
Now it does not help to step back and call for deregulation. What would that mean in this context? The situation calls for an allocative decision; does the entitlement belong to the store owner or to the patron? 44 The property right must be allocated in one direction or the other. There is no way for the state to remain uninvolved unless the state disbands itself and reverts to anarchy. A system of private property, by definition, entails state power and governmental regulation to determine to whom property rights are allocated when conflicting claims are made to a particular resource. Indeed, most issues that are described as contests between property and regulation can be redescribed as conflicts among competing property owners. 45 In such cases, regulation is inevitable. The only question is in whose interest that regulatory power shall be exercised.
3. PROPERTY AS A REGIME
We have seen that property and property law involve both social relations and regulation. We can now complete the picture by focusing on the global effects of individual rules of property law. Under current jurisprudence, property law involves the rules governing the allocation and scope of control over valued resources. When we speak about property, we generally talk about it as an individual right. However, when we do this, we forget that it is a system and not just an individual entitlement. 46
44. See generally UNDERKUFFLER, supra note 37for a discussion of the distinction between property as a system of rights and property as an institution which involves regulation.
45. See generally SINGER, ENTITLEMENT, supra note 38 ( analyzing the role of property rights among different segments of society).
46. SINGER, ENTITLEMENT, supra note 38, at 146 ( emphasizing that “ property rights are exercised by individuals who live not in isolation but in society, among other people”). See also LARMORE, supra note 16, at 63 (“[ T] o the question why we should conduct our lives in this fashion, we can answer in the end only that this is the way of life we hold to, this is where our conscience feels at home.”). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
274 Loyola Law Review [ Vol. 52
I am not just talking about the choice between communism and private property. I am talking about different private property systems; those systems comprise different “ social and economic regime[ s].” 47 Consider the systems of private property with which we are familiar. England had a feudal system with lords, vassals, and serfs. The United States once had slavery and company towns. In my childhood, the South was still bound by legally mandated racial segregation. Until very recently South Africa had a system of apartheid. What is our system?
The term most generally used for our system is the “ free market.” This term, however, has an ideological bent to it. It suggests to even a casual observer that the basic ground rules of our system leave most people free from government regulation most of the time. Limitations on property rights appear as intrusions on both liberty and property. But if we recall our public accommodations example, the picture looks very different. A case involving the question of whether a retail store is a public accommodation seems to be a simple question about one particular property entitlement; do stores have the same obligations that common carriers and innkeepers have to serve the public without unjust discrimination or do they have the power to choose their customers at will? 48 But the issue involves much more than that. Consider that a society beset by racial prejudice would experience the cumulative effect of many individual decisions not to serve customers because of their race to be functionally identical to a society that mandated racial segregation. This is why the removal of the apartheid laws in South Africa was not sufficient to move that society to a post- apartheid regime. 49 The removal of regulatory laws that require segregation, like apartheid or Jim Crow laws, does not lead to integration or equal opportunity. Only competing regulatory laws, like the 1964 Civil Rights Act and the 1968 Fair Housing Act, can make it possible for people to acquire property without regard to their race. In a society characterized by racial prejudice, the opportunity to acquire property will not be
47. See RAWLS, JUSTICE AS FAIRNESS, supra note 26, § 16.2, at 56 ( discussing the structure of such a regime).
48. For a history of public accommodations law, see generally Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283 ( 1996).
49. Joseph William Singer, Property and Equality: Public Accommodations and the Constitution in South Africa and the United States, 12 S. AFR. J. PUB L. 53 ( 1997). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 275
available in the absence of government regulation. These new regulatory laws prohibit owners from refusing to sell property because of the race of the buyer. This means that the individual rules of property law, as well as the choices being made about the rebuilding of New Orleans, are choices not only about property entitlements but about the kind of society we want to create.
Consider the anti- feudal theme in American property law. A little noticed provision of the U. S. Constitution prohibits creating titles of nobility. This clause is little discussed in constitutional law courses but is a fundamental background tenet in property law. The basic rules of property law in the United States are based on a fundamental opposition to feudalism as a property regime and a way of life. Recall that William the Conqueror claimed ownership of all of England and gave out much of the land to his lords who both governed and owned their feudal domains. They in turn subinfeudated, creating a vast social ladder, tying individuals to a certain place in the land and creating a vast network of personal obligations. Such a system severely limited the freedom of individuals to move around, to change jobs, to alter land use patterns, or to develop a national market economy. Over time, a complicated process of law reform pushed power downwards from the lords to those who lived on the land, creating the modern idea of ownership based on the idea of treating each person as an equal with inherent rights to liberty and the freedom to become an owner with the power to determine the use of one’s own land. 50 This modern idea is based on the assumption that there will be many owners and not a few, that the free transfer of land is a basic rule of the system, and that ownership of land is not attached to personal obligations to a particular lord or members of an aristocratic ruling class. We see this modern idea in the Jeffersonian conception of a world of family farms, with independent owners not beholden to lords who would be able to control their lives and their votes. 51 We see it in the homestead laws that sought to transfer public lands to millions of Americans rather than leaving the land in the hands of a few landlords who would rent it out to the masses. 52
50. See, e. g., A. W. B. SIMPSON, A HISTORY OF THE LAND LAW ( 2d ed. 1986) ( detailing the historical development of property law).
51. See GREGORY S. ALEXANDER, COMMODITY & PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT 1776- 1970 26- 42 ( 1997) ( describing Jefferson’s views).
52. See ALAN BRINKLEY, THE UNFINISHED NATION: A CONCISE HISTORY OF THE SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
276 Loyola Law Review [ Vol. 52
The “ free market” is thus related to the idea of democracy. 53 It assumes that there will be many owners and not just a few. This idea of a “ property- owning democracy” 54 was one that had to be invented and it was born only in struggle. Brendan McConville has written an incredibly interesting history of my home state of New Jersey. 55 He describes a violent hundred year struggle over land and sovereignty in New Jersey. Two sets of land claimants settled in New Jersey on the basis of land grants given by the military governor serving the Duke of York. Those settlers were opposed by two lords named Carteret and Berkeley who were subsequently given all of New Jersey by the Duke of York and who sought to establish two feudal domains by which they would control all the land and receive services ( feudal quitrents) from their tenants. A third group of claimants emigrated from Pennsylvania and staked claims around Camden in west New Jersey. And of course, there were the Lenni Lenape Indians who were in the process of being displaced. In effect, there was a long struggle, not only over who would own property in the state, but over what kind of property regime would be established. None of the colonists seemed interested in protecting the rights of the Indians; nor did it occur to them to abolish or fail to establish slavery. However, they did quarrel among themselves not only about the legitimate source of title but whether to establish a property system characterized by widespread ownership and equal status among owners or one characterized by limited ownership and unequal status of lords and tenants. A similar struggle was evident in the nineteenth century in New York as the tenants of the Van Rensselaer family rebelled against the quitrent system. 56
The attempt to establish feudalism ultimately failed and this
AMERICAN PEOPLE 367 ( 1993) ( describing the homestead laws of 1862).
53. See Jedediah Purdy, A Freedom- Promoting Approach to Property, 72 U. CHI. L. REV. 1237, 1243 ( 2005) ( conceptualizing property as a device to promote human freedom). See also generally ROSS ZUCKER, DEMOCRATIC DISTRIBUTIVE JUSTICE ( 2001) ( arguing that democracy requires fair distribution of resources).
54. See RAWLS, JUSTICE AS FAIRNESS, supra note 26, § 42.3, at 139 ( discussing the notion of a “ property- owning democracy” in relation to the principles of justice).
55. See generally BRENDAN MCCONVILLE, THESE DARING DISTURBERS OF THE PUBLIC PEACE: THE STRUGGLE FOR PROPERTY AND POWER IN EARLY NEW JERSEY ( 2003) ( outlining the evolution of New Jersey property law).
56. See generally CHARLES W. MCCURDY, THE ANTI- RENT ERA IN NEW YORK LAW AND POLITICS 1839- 1865 ( 2001) ( detailing the impact of such rebellions on New York property laws). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 277
had a crucial effect on the development of the common law of property in the United States. For example, in the case of State v. Shack, 57 the New Jersey Supreme Court ruled that a farm owner could not prevent a doctor and a legal services lawyer from visiting migrant farmers housed on his land. Those workers had the right to receive visitors in their homes. In defending this result, Chief Justice Joseph Weintraub quoted a report that argued that “ no trespass” signs designed to exclude service providers from helping migrant farm workers “ represent the last dying remnants of paternalistic behavior.” 58
Today, we generally use the label “ paternalism” to attack regulations of contracts that impose mandatory contract terms; in this derogatory use of the term, paternalism represents an intrusive regulation by the state into the system of free contract that wrongfully presumes that the state knows better than the parties what agreements are in their best interest. In State v. Shack, the contract between the farm owner and the workers contained no clause giving them a right to receive visitors in their barracks on his land. Mandating such a term might increase the owner’s costs and decrease the workers’ compensation. A libertarian view of free contract would suggest enforcing the contract the parties made, despite their unequal bargaining power, because it is paternalistic to prevent the workers from entering such a contract if they believe it is in their best interest. 59
But Chief Justice Weintraub argued that failing to regulate the contract ( by requiring the farmer to open his farm to such visitors) was a form of paternalism. 60 How can that be? How can a law freeing the farmer from government regulation be “ paternalistic”? The answer is that the court was referring to an older form of paternalism— a form associated with feudalism and plantation slavery. This older form treated the owner of the land as the lord and master of those he allowed to live on his land; the lord ruled his land as he ruled his family and such an owner
57. State v. Shack, 277 A. 2d 369, 372 ( N. J. 1971).
58. Id. at 373 ( quoting THE REPORT OF THE GOVERNOR’S TASK FORCE ON MIGRANT FARM LABOR 63 ( 1968)).
59. See Alan Schwartz, Justice and the Law of Contracts: A Case for the Traditional Approach, 9 HARV. J. L. & PUB. POL’Y 107, 107 ( 1986) ( arguing that “ just outcomes” in contract law arise when people are allowed to do what they feel is in their own best interest).
60. Shack, 277 A. 2d at 373. SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
278 Loyola Law Review [ Vol. 52
claimed the power to determine the rules under which others lived, so to speak, under his roof. 61 The farmer in State v. Shack claimed a right to act like a feudal lord, controlling the personal lives of his workers, isolating them from the outside world and determining the conditions of their existence. The failure to regulate the owner in this situation would have delegated state power to the owner in a manner that would have created a type of property regime— a regime that granted owners the power to rule over those who entered their households. I am overstating the case, of course; the workers always had the choice to leave, unlike serfs in feudal England. But the claim nonetheless holds. The ruling in Shack was premised on the view that a property regime that allowed farmers to exclude social service providers from their land, isolating their workers, and depriving them of the right to have visitors, would effectively treat those workers as less than equal persons, depriving them of what the court termed “ associations customary among our citizens.” 62 It would, in effect, look too much like feudalism or even slavery.
Lest we think that such considerations only apply to disempowered groups like migrant farm workers, consider the duty to mitigate damages in landlord/ tenant law. Until recently, it was the law almost everywhere that landlords have no duty to mitigate damages when a tenant breaches the lease. Consider a law student in Cambridge, Massachusetts who signs a one year lease beginning on September 1 and then gets a summer job in New York City for the following summer. The student asks the landlord for permission to sublet, as the lease requires, but the landlord denies permission, as the lease allows her to do. The tenant then announces that she intends to breach the lease and finds a replacement tenant who is ready, willing and able to rent the apartment for the summer. The landlord refuses to accept the replacement tenant. The student breaches, stops paying rent on May 31, and moves to New York. Under the older law, the landlord could wait until September 1 and then sue the tenant for the back rent for the summer; the landlord had no duty to mitigate damages by looking for a replacement tenant or
61. See J. H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 193- 221 ( 2d ed. 1979) ( discussing real property in relation to feudal tenure); THEODORE F. T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 506- 21 ( 5th ed., Little, Brown & Co. 1956) ( 1929) ( discussing feudalism); SIMPSON, supra note 50, at 1- 24 ( describing feudal tenure).
62. Shack, 277 A. 2d at 374. SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 279
accepting a subtenant found by the tenant herself. If the landlord is entitled to collect the back rent from the breaching tenant at the end of the summer, then the tenant who wants to accept the job in New York is going to have to pay two rents for the summer if she wishes to accept the job. A tenant who cannot afford to do that would be induced to turn down the job. The reason most states have abolished the old rule is because they believe that tenants should not be tied to the land. Rather, they should have the freedom and autonomy to move to another place, accept a job there, and relinquish old ties, as long as they pay their debts at the place they are leaving. Because the landlord’s major legitimate interest is in payment of the rent by a creditworthy tenant, the landlord has no reasonable ground for insisting that the money come from one person rather than another. As long as the landlord can still go after the initial tenant if the replacement tenant does not pay the rent, the landlord should not be able to insist that the tenant choose between leaving the apartment vacant and paying two rents versus giving up the summer job. To constrict the tenant’s choices in this way is to exert too much control over the personal life of the tenant without sufficient reason; it is to act in the fashion of a feudal lord rather than a modern landlord. In determining what the rules of property law should be, we must therefore accept the fact that those choices will have systemic effects, and our goal should be to define our property institutions and our property law in a manner that is compatible with our considered judgments about what it means to live in a free and democratic society that treats each person with equal concern and respect. 63
63. This formulation differs from that used by John Rawls who talks about creating a “ democratic society as a fair system of social cooperation between citizens regarded as free and equal.” RAWLS, JUSTICE AS FAIRNESS, supra note 26, § 12, at 39. My formulation puts the word “ free” as modifier of “ democracy,” rather than as a modifier of “ citizen,” not because I am not interested in ensuring that individual citizens have freedom but because freedom is not just a characteristic of individuals but of social relations in general. A “ free and democratic society” is one that is composed of free persons but their freedom is understood as relational in character; they obtain freedom from a system of legitimate institutions and law regulating human relationships which result in a social and economic regime that can be characterized as both free and democratic. In this sense, I am using the word “ democracy” to characterize social and economic life and not just the political regime.
Ronald Dworkin originated the concept of “ equal concern and respect.” See RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 17 ( 1996) ( stating that “ collective decisions [ should] be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect”). See also generally SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
280 Loyola Law Review [ Vol. 52
The concept of a property regime is at the center of debate about the future of New Orleans. Government will be intimately involved in this process if for no other reason than the involvement of government in creating the infrastructure that protects the area from flooding. It will be involved in more fundamental ways as well. Governmental choices will have a huge impact on the very shape of the city, the character of its neighborhoods, and the identity of its inhabitants. A consensus seems to be emerging in public discussions that displaced residents should have a right to come home, as well as a right to decide to place down roots elsewhere. 64 A more complicated issue is whether to rebuild all the previous neighborhoods in the same locations and what form that rebuilding should take. On one hand, it has been argued that rebuilding the most vulnerable neighborhoods will only make the mistakes of the past again, leaving the low- income segments of the population especially vulnerable to flooding. 65 On the other hand, the failure to rebuild such neighborhoods has the awful cost of losing longstanding communities and social relationships; it may even have a disparate impact based on race and class, leading to the rebuilding of areas of the city dominated by upper class whites. In addition, the normal operation of the market may cause land owners to evict their tenants and sell their property and then seek rezoning of formerly residential land for commercial purposes.
The value choices implicated in all these questions are obvious. Like it or not, government at many levels is intimately involved in setting the ground rules for the reconstruction of the city. While it is true that market forces may determine the ultimate uses of most specific pieces of property, land use regulations and government choices about investment in
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY ( 1977) ( analyzing the meaning of liberty and equality in relation to basic human rights). See also RAWLS, JUSTICE AS FAIRNESS, supra note 26, § 19.5, at 71 (“ The question is: how to express the concern that is most appropriate to the freedom and equality of democratic citizenship?”).
64. See New Orleans Mayor Asks Residents to Return, NewsMax. com Wires, Dec. 4, 2005, http:// www. newsmax. com/ archives/ articles/ 2005/ 12/ 4/ 105304. shtml ( last visited May 25, 2006) (“ Nagin encouraged residents to begin the rebuilding process on their properties and to voice their concerns to legislators.”).
65. Lacewell, supra note 8, at 9 ( suggesting that we may better respond to the displaced population of New Orleans by “ restoring” the city rather than “ rebuilding” in place; if the levees are not rebuilt so as to make the most vulnerable areas safe again, residents would be better off being aided in moving to other parts of the city). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 281
infrastructure will substantially channel the overall shape of development, as well as the chances that the poor, as well as the rich, will benefit from these redevelopment activities. It appears that substantial governmental assistance will be needed if the poor, as well as the rich, are to return to the city and rebuild communities. Government decisions will help determine whether the racial and class segregation that characterized some of the New Orleans neighborhoods before the flood will reemerge. 66
The institutionalist view is that we need government to help us with basic infrastructure investment and perhaps minimal zoning law to separate residential and industrial uses. At that point, however, we let the free market take over and see what happens. If poor people move back to the city, fine; if they don’t move back, that’s fine too. If the city resegregates by race, then that is the natural operation of market forces and choices by individual housing consumers; the government is not to blame and any governmental action to counter this natural pattern of affairs will only deprive individuals of liberty and unnecessarily limit their property rights. The pragmatic view claims that we should worry intensely if the institutions we create to frame social relations deprive the poor of the opportunity to go home and to live in an improved environment where jobs are available to lift oneself out of poverty, neighborhoods are both various and safe, and schools are of high quality. The pragmatic view, in other words, rests on the notion that society ( acting through governmental, as well as nongovernmental, institutions) has obligations to act to improve things for the least fortunate and not to rest until that is done.
This view is not alien to American history, institutions, philosophy, or law. The common law itself has long subjected property to intricate rules designed to ensure that one owner does not acquire too much power over others. The homestead laws were designed to spread land ownership widely. The public accommodation and fair housing and employment laws are designed to ensure that individuals are not excluded from
66. Alan Berube & Bruce Katz, Katrina’s Window: Confronting Concentrated Poverty Across America, BROOKINGS INST. METROPOLITAN POL’Y PROGRAM ( Oct. 2005), http:// www. brookings. edu/ metro/ pubs/ 20051012_ concentratedpoverty. htm
( last visited May 25, 2006); New Orleans after the Storm: Lessons from the Past, a Plan for the Future, BROOKINGS INST. METROPOLITAN POL’Y PROGRAM ( Oct. 2005), http:// www. brookings. edu/ metro/ pubs/ 20051012_ neworleans. htm ( last visited May 25, 2006). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
282 Loyola Law Review [ Vol. 52
obtaining access to economic life for invidious reasons. If property is a regime, as well as an individual right, then it must be structured by law to enable the have- nots to become haves. 67
4. REGULATORY TAKINGS, JUSTIFIED EXPECTATIONS & HURRICANE KATRINA
The interrelation of government regulation and property is so intimate because regulations create the framework of expectations that owners are entitled to have, as much or more so than the private choices made by property owners. Consider what would happen if the federal government decided not to rebuild the levees in New Orleans, or decided that it could only rebuild them to withstand a Category 3 hurricane and then refused to issue flood insurance because the area is subject to more serious hurricanes. What rights would owners of real property in New Orleans have?
We ordinarily imagine property rights to be negative rights, i. e., that owners have the right to be left alone by the government but that they have no right to affirmative action by the government to promote their interests. However, as our trespass examples showed in the context of public accommodations law, even the most basic property rights ( such as the right to exclude others) entail enforcement by public officials. This means that owners have the right to public action to protect their right to exclude non- owners from their land; this, in turn, requires that there be public employees to do the protecting ( such as local police), and this, in turn, entails the need for taxes to pay their salaries.
In the context of zoning law, an owner who gets a building permit and builds a structure in reliance on applicable land use regulations acquires a vested right to maintain the structure at that location. 68 If a city chose to downzone the property where a business is located, allowing only residential uses on the land, the
67. For a discussion of this issue see generally JOSEPH WILLIAM SINGER, THE EDGES OF THE FIELD: LESSONS ON THE OBLIGATIONS OF OWNERSHIP ( 2000); SINGER, ENTITLEMENT, supra note 38, at 143 ( explaining that “[ p] rivate property is not just an entitlement, it is a regime”).
68. Stone v. City of Wilton, 331 N. W. 2d 398, 404- 05 ( Iowa 1983) ( holding that a change in zoning cannot be imposed retroactively on a developer who has received a building permit and already spent substantial amounts of money on architectural and construction work for a particular project in reliance on existing zoning regulations and the permit itself). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 283
law requires the prior nonconforming use to be grandfathered in, allowing it to persist despite its incompatibility with the new zoning law. Requiring an owner to tear down an existing structure built in reliance on prior land use regulations would certainly constitute a taking of property requiring just compensation under existing law. 69 The only possible exception would be if the property is dangerous and the governmental demand to demolish the property is based on a desire to protect the public or residents of the building. Would this exception apply if the federal government refused to allow New Orleans residents to rebuild in low- lying areas of the city?
On one hand, it could be argued that no one has the right to build in a flood plain and that government is well within its rights to regulate or even prohibit construction of property in areas where it is dangerous to live. 70 This argument, however, falls woefully short in the New Orleans case. The federal government built the levees and issued flood insurance for homes in the New Orleans area. 71 The city zoned the land for residential and business use. In all these ways, the government created reliance interests on the part of those who invested in real estate
69. See Kaiser Aetna v. United States, 444 U. S. 164, 176 ( 1979) ( stating that when an owner “ invested substantial amounts of money in making improvements” to connect a private lagoon to navigable waters, it would constitute a taking of property to require the owner to allow the public to use the lagoon).
70. Although the Supreme Court remanded in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 ( 1987), to determine whether a prohibition on rebuilding a church in a flood plain constituted an unconstitutional taking of property, the lower court ultimately found this not to be a taking on the ground that the state was justified in prohibiting construction in an area where it was dangerous to live. See First English Evangelical Lutheran Church of Glendale v. Los Angeles, 258 Cal. Rptr. 893 ( Ct. App. 1989) (“[ I] t is abundantly clear . . . that the avowed purpose of this ordinace was to protect lives and health.”). See also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1029 ( 1992) ( noting that it would not be a taking to order the destruction of a nuclear power plant after it was constructed once it was discovered that the plant sat atop an earthquake fault).
71. Michelle Delio, Taming the Wild River, WIRED, Nov. 8, 2004, http:// www. wired. com/ news/ roadtrip/ riverroad/ 0,2704,65183,00. html ( last visited May 25, 2006); see also generally ALBERT E. COWDREY, LAND’S END: A HISTORY OF THE NEW ORLEANS DISTRICT, U. S. ARMY CORPS OF ENGINEERS, AND ITS LIFE LONG BATTLE WITH THE LOWER MISSISSIPPI AND OTHER RIVERS WENDING THEIR WAY TO THE SEA ( 1977) ( detailing the initiation of the Army Corps of Engineer’s hurricane protection efforts involving the 17th Street and London Avenue Canals). In fact, the Army Corps of Engineers took control of the protection efforts of the 17th Street, London Avenue, and Orleans Avenue Canals after a federal court in the Eastern District of Louisiana enjoined the Army Corps of Engineers from implementing its so called “ barrier plan” for Hurricane Protection. Id. SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
284 Loyola Law Review [ Vol. 52
in the city. All this governmental expenditure and regulation gave implicit and perhaps even explicit representations that the area was safe to build and live in and that the government would maintain the levees to secure that safety. Even the issuance of flood insurance gave these assurances; if the area was too dangerous for habitation, the government would have refused to insure homes in the area at all. It is true that flood insurance gives a mixed message. On one hand, it suggests the land is subject to damage from flooding and that owners take the risk of flooding by buying property in that area. On the other hand, the insurance serves to induce investment in the area; the presence of insurance protection means that individuals will be more willing to buy and own homes in the area since their financial equity is protected by the insurance. In all these ways ( building the levees, issuing the flood insurance, zoning the land for residential purposes), the government induced owners to invest in the low- lying areas of New Orleans. Moreover, government had at least a moral duty to act reasonably to maintain the levees in a non- negligent manner; owners would have expected that the federal government would undertake its work in providing flood control in a reasonable manner.
It also appears that, with enough investment, it would be possible to invest to make the levees stronger and most if not all of the area again safe to live in. Assuming this is the case, would a government choice not to spend that money violate the property rights of the owners? The government might argue that decisions about levels of public funding are political questions and no one has a property right to a certain level of spending. Landowners, however, have a strong case that they acquired vested property rights by investing in reliance on existing regulatory laws and that the government should be estopped from denying that the area is safe for habitation especially when the lack of safety results from the government’s decision not to spend enough money to rebuild and maintain the levees that made the land safe and available for development in the first place.
The levees broke because they were built defectively, and the harm to the residents’ real estate was caused, not by the hurricane, but by the Army Corps of Engineers. 72 If owners were
72. See Bill Walsh, Corps Chief Admits to Design Failure, TIMES- PICAYUNE, Apr. 6, 2006 at A1 ( reporting that the head of the Army Corps of Engineers acknowledged that a design failure resulted in the 17th Street Canal levee failure). Unfortunately, SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 285
led to believe the area was safe for human habitation, and they relied on these representations, and if it is technologically feasible to rebuild the levees and render the area safe for rebuilding, then a political decision not to rebuild the levees so as to make the area safe for habitation would effectively render the property worthless. In such a case, it would be the government, not nature, that caused the loss of economically viable use of the land. 73
Although some cases hold that no taking arises from government negligence, even when that negligence destroys property, 74 as in the case of New Orleans, other cases have held that government actions that destroy property may constitute takings even if the government did not intend to produce the harm. 75 The Supreme Court ruled in the 1872 case of Pumpelly v. Green Bay Co., 76 that permanent flooding of land caused by dam construction constitutes a taking of the affected property which requires compensation. The Court explained that “ where real estate is actually invaded by superinduced additions of water,
the evidence continues to grow stronger and stronger that the Corps failed in its responsibility to protect New Orleans from flooding. John Schwartz, Army Builders Accept Blame Over Flooding, N. Y. TIMES, June 2, 2006, at A1, A16. See also Cain Burdeau, Army Corps Takes Blame in Levee’s Failure: Concedes Design Flaws Played Role as Katrina Flooded New Orleans, BOSTON GLOBE, June 2, 2006, at A2. These new admissions come shortly after a study released by the National Science Foundation ( conducted Geotechnical Engineers at the University of California- Berkeley) detailing the specific design defects in both the storm protection canals and levees. For the complete report, see national Science Foundation, Independent Levee Investigation Team Draft Report ( 2006), available at http:// www. ce. berk eley. edu/~ new_ orleans.
73. See Lucas, 505 U. S. at 1009 ( examining plaintiff’s claim that South Carolina’s restriction on his right to build on his beachfront property was an unconstitutional taking).
74. See Thune v. United States, 41 Fed. Cl. 49, 52 ( 1998) ( holding no taking where fire set by Forest Service that grew out of control and destroyed the plaintiff’s hunting camp after an unexpected change in wind conditions).
75. See Ridge Line, Inc. v. United States, 346 F. 3d 1346, 1355 ( Fed. Cir. 2003) ( a taking may be found when “ the effects experienced were the predictable result of the government’s action, and whether the government’s actions were sufficiently substantial to justify a takings remedy”); Boling v. United States, 41 Fed. Cl. 674, 680 ( 1998) ( holding that erosion of the plaintiff’s land due to dredging by the Army Corps of Engineers was such a complete invasion of the property “ that labeling it anything less than a taking would be nonsensical”); Berenholz v. United States, 1 Cl. Ct. 620, 627 ( 1982) ( government’s weakening of a dam which eventually gave way and flooded plaintiff’s property was a taking because “ the invasion of property rights was the result of acts the natural and probable consequences of which were to effect such an enduring invasion”).
76. Pumpelly v. Green Bay Co., 80 U. S. 166 ( 1872). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
286 Loyola Law Review [ Vol. 52
earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” 77 The most recent authority on this question is the 2005 decision in Hansen v. United States, 78 in which the Federal Claims Court reviewed and attempted to rationalize the test for distinguishing between a noncompensable government “ tort” and a compensable “ taking” of property. Hansen held that a taking may be found by establishing “ an unreasonable interference of a property interest by the government that is both substantial and continuous, a showing of legal ( or ‘ proximate’) causation, and the existence of at least broad authorization for the governmental acts involved.” 79 While some cases have suggested that the harm must be “ foreseeable,” Hansen holds ( citing Pumpelly) that “ impos[ ing] an absolute requirement of a showing of specific intent foreseeability would not only contravene the plain meaning of the Takings Clause which contains no state of mind requirement— but would also permit government to escape its constitutional duty to compensate its citizens for destruction of their property.” 80
We now have Chief Justice Roberts and Justice Alito on the Supreme Court. They are likely to be strong advocates for the rights of property owners. Ordinarily, one would not think that this would mean that they would support finding constitutional obligations on the state to spend money, even if those
77. Pumpelly, 80 U. S. at 181. In Jackson v. United States, 230 U. S. 1 ( 1913), the Supreme Court denied a takings claim against the federal government when levee construction by the United States flooded neighboring lands. The Court held that the federal government’s power over navigable waters gave the United States plenary power to construct any projects it deemed necessary to that purpose and immunized the U. S. from liability for “ remote or consequential damages” such as the flooding of neighboring land. Id. at 23. But see Kaiser Aetna v. United States, 444 U. S. 164, 180 ( 1979) ( finding a taking when “ the [ government’s] imposition of the navigational servitude . . . will result in an actual physical invasion of [ private property]”). It is unclear, however, how Jackson survives Lucas v. South Carolina Coastal Council, 505 U. S. 1003 ( 1992), which held that a total deprivation of all economic value is a per se taking of property unless the owner never had the right to be free from the regulation in the first place. While it is true that the U. S. has the power to regulate navigable waters, it does not follow that there are no limits on any actions the U. S. may take to improve those waters; actions that directly cause flooding on neighboring lands would seem to exceed the scope of any regulatory powers encompassed by the navigational servitude.
78. Hansen v. United States, 65 Fed. Cl. 76, 80- 81 ( 2005).
79. Id. at 81.
80. Id. SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 287
expenditures are intended to support private property. The claim for government dollars looks like a claim for welfare, and we know that we have no constitutional right to welfare in the United States. But the owners can argue that they are not asking for a gift or a handout; they are asking for the government not to act so as to undermine their reasonable, investment- backed expectations that the city of New Orleans would be habitable. 81 When owners have been induced to invest in reliance on a particular regulatory scheme, it is conventional reasoning that the regulatory permission cannot be rescinded retroactively without paying just compensation. It is also conventional reasoning that an owner who removes lateral support for land and builds a retaining wall to protect neighboring property has a continuing obligation to maintain the wall to protect the neighbor’s property. 82 While there may be no duty to aid a stranger in distress, in the absence of an immunizing statute, a good Samaritan has the duty to act reasonably once she begins to provide assistance. Here the city of New Orleans built the canals, zoned the land for development and granted building permits; then half a century ago, Congress mandated that the federal government, through the Army Corps of Engineers, take over the task of maintaining the levees to ensure against flood damage. In all these ways, the local, state, and federal governments made explicit or implicit representations that those levees were adequate to protect the homes and that they would be maintained. The government might want to imitate Gilda Radner’s colorful comic character Emily Litella and say “ never mind!” but the constitution may well protect the owners from such a governmental change of mind.
If the federal government could have avoided much ( or all) of the harm caused by Hurricane Katrina if it had built the levees and other flood control mechanisms in a non- defective manner, then the harm may be attributable to the government and constitute a taking of property without just compensation. Moreover, a decision not to rebuild public infrastructure to make it safe for people to rebuild their homes in New Orleans might
81. I am indebted to Binford Parker for this idea.
82. Noone v. Price, 298 S. E. 2d 218, 222 ( W. Va. 1982) (“[ W] hen an actor who removes natural lateral support substitutes artificial support to replace it, such as a retaining wall, the wall then becomes an incident to and a burden on the land upon which it is constructed, and subsequent owners and possessors have an obligation to maintain it.”). SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
288 Loyola Law Review [ Vol. 52
constitute a second unconstitutional taking of their property by depriving the property of any economically viable use. Of course, the courts might very well not interpret the law in this manner and reject one or both of these conclusions. The protection of property rights imposes obligations on government, but this leaves open the task of defining the scope of those obligations. However, it is not a stretch to argue that both the state and federal governments have acted in such a way as to assume obligations to the people of New Orleans that are not merely moral in nature but rooted in positive law.
New Orleans provides a visible, dramatic example of the fact that property and property rights come into existence because of government action that provides the infrastructure that makes that property available and secure. Regulations do not necessarily “ take” or infringe on property rights; rather, property requires regulation for its very existence and regulations often enhance, rather than diminish the rights and interests of owners.
At the same time, I must acknowledge that there is no positive source of law in our constitutions or our statute books that imposes direct, legally enforceable obligations on us as a society to aid the poor or to mitigate inequality. We can see the impetus there in our legal and political history and we can see how such efforts are consistent with our historical traditions. We also, however, see much in our legal tradition that supports inequality and self- reliance. The question is why we should re- emphasize democratic values whose goal is to spread opportunity and universalize the availability of a decent life. For that, we must turn to our resources that aid us in thinking about fundamental moral and political questions. Philosophy and religion may help us step back to consider what obligations we have to others, especially those who are most vulnerable to being excluded from a comfortable life.
B. PHILOSOPHY & POLITICAL THEORY: REASON, RESPONSIBILITY, & THE SOCIAL CONTRACT
Our philosophic traditions are rich and various. My goal here is simply to help us remember some of the most basic insights we have learned from philosophers and the ways in which those insights support the notion of using government power to spread opportunity and alleviate suffering. I will briefly refer to our traditions of moral reasoning, social contract theory, SINGER- PF- JCH 10/ 17/ 2006 9: 37 PM
2006] Equality and Humanity in Property Regimes 289
the conception of equal opportunity, and modern notions of deconstruction and critical legal theory.
1. MORAL REASONING
Where can we find a basis for a sense of obligation? Philosophers have wrestled with this question for a long time. They have conflicting schools of thought, just as legal scholars do; there are utilitarians and consequentialists, Kantian moral duty theorists, Aristotelian virtue ethicists, communitarians, existentialists, and deconstructionists. Without addressing these multiple views in detail, I want simply to emphasize what I see as the most basic foundational insight of moral theory: the idea that we must give reasons for our actions that affect other people.
Philosophers start from the notion that persons have interests and the question is why they should do anything other than look out for themselves. Why do we have any duties to look out for the interests of others? This is obviously an old question. It is the gnawing doubt that Cain must have faced when God asked him, “ Where is your brother Abel? ךיחא יא לבה” 83 Cain, of course, answered by lying: “ I do not know, יתעדי אל” he said. And then in the usual translation, “ Am I my brother’s keeper? יכונא יחא רמשה” The word “ keeper” is from the noun form of the Hebrew verb which means “ to guard” or to “ watch over.” So the question really was: am I obligated to guard my brother, to watch over him? The evasion in the question is obvious. What is striking is the fear at the heart of the question. God knows that Cain has killed Abel; whether Cain knows that God knows is another story. If we assume Cain does know, then what is the meaning of the question? One obligation we might have is not to do harm to others; it seems a greater obligation to attend to their needs and interests beyond not harming them. Cain suggests that if he is obligated to look out for the interests of others, it is a small step from being required not to h