Friday, October 21, 2011

Property Theory and Land Use, Part III

This is Part III in an on-going series of posts. In Part I, I crudely summarized the central claims of the Statement of Progressive Property and (what is in my view) the most telling criticism of that statement. In later posts I’ll refer to this exchange as the Progressive Statement Debate. In Part II, I briefly examined the guiding principles of an actual municipal rebuilding plan, that of Tuscaloosa, Alabama. Tuscaloosa suffered catastrophic damage from an enormous tornado last spring, and they are now beginning to plan how they will rebuild. I noted that Tuscaloosa grounded its rebuilding plan on the common good of the community. I remarked that the basic principles articulated in Tuscaloosa’s plan seem remarkably like the theory of authority developed by the natural law philosopher John Finnis, who grounds authority not in a social compact, an original position, the command of a sovereign, or the state’s responsibility for some consequentialist calculus, but rather in the basic human good of community.

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If Finnis and the City of Tuscaloosa are correct, and there is such as a thing as an objective human good that we call community, then several important principles follow. Community is not a collective good but rather a common good. It is a good that cannot be instantiated except by cooperation among some number of people larger than one, yet it cannot be reduced to a mere aggregation of individual interests. A community of people must perceive the value of their cooperative action in some reason for action that they all share in common, not as the collective sum of individual goods less individual burdens, but rather a value that is truly good for them all, the value of which is known to them all.

In other words, that people form communities for the purpose of pursuing common goals, which are not reducible to the greatest aggregate collective good (which must be achieved at the expense of some), is perhaps the best practical proof against consequentialism.

As a theoretical matter, consequentialism is untenable. That at least some human goods are incommensurable—cannot be compared to each other on the same scale—entails that it is nonsense to speak of “the greatest good” in any collective sense. (Very helpful explanations of the incommensurability thesis can be found in Joseph Raz, The Morality of Freedom, at 321-66, and John Finnis, Natural Law and Natural Rights, at 92-95, 112-15.) But one need not read jurisprudence in order to see that consequentialism fails to explain how communities operate (or at least how they operate well) in the real world, particularly in their planning and development of land. When land use planning and development is done well, the community benefits in common; everyone really is better off. When land use planning is treated as a consequentialist enterprise, a zero-sum game in which the rights and interests of some individuals must be sacrificed for a “greater” collective “good” (think Poletown and Kelo), things tend not to turn out very well.

One of the important implications of this observation is that authority for land use planning should be de-centralized. No single, central authority is capable of measuring the “greatest collective good” through any empirical measurements, because no such collective good exists. A community's truly common good is irreducibly complex. Thus, a truly common good must be pursued through the community’s plural, subsidiary institutions. Private institutions within the community should, for this reason, retain as much authority as possible. They have primary responsibility for promoting the common good, for standing as intermediaries between the government and their individual members, and for helping local officials perceive what can and should be accomplished in any development of land.

This is why, I think, successful development plans tend to involve multi-faceted decision-making. They tend to enjoy so-called buy-in not just from individual citizens but also from businesses, trade groups, churches and other religious assemblies, social clubs and charities, and all of the other subsidiary institutions through which the community pursues the good.

Adam MacLeod

http://lawprofessors.typepad.com/land_use/2011/10/property-theory-and-land-use-part-iii.html

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