Monday, October 31, 2011
Imagine a state law that prohibited mortgagees from foreclosing on defaulting mortgagors if those mortgagors were women. This would strike many people as unjustly discriminatory but I suspect many people would have a difficult time articulating why. It doesn't make much sense to say that this law violates some right of the woman-mortgagor, since no sensible person would claim a right to be foreclosed upon. On the other hand, the law discriminates on the basis of sex in an arbitrary way.
Of course, property profs have a ready answer. If mortgagees cannot foreclose against female mortgagors then women have effectively been prohibited from conveying the right of foreclosure in the mortgage instrument, and this will drive up the cost women will pay for obtaining credit. The effect of the law is discriminatory against women. But this doesn't seem to get all the way at the problem, because the discrimination appears to be intentional.
This was the puzzle of common law coverture. Far from arguing that coverture violated their rights, many married women actually invoked coverture in order to avoid debts that they had voluntarily incurred. For this reason, as I argued in this article, I think coverture challenges the simplistic rights language of liberalism.
Here again, the common-goods approach provides a superior explanation. Coverture was unjust because, as the high court of Texas observed in 1851, it deemed the married woman, as a result of her marriage, “divested of her faculties as a rational being." As another court noted, coverture rested upon the assumption that "married women were incapable of managing their business dealings." By freeing the married woman to exercise sovereignty over her assets, laws abolishing coverture treated her as a fully reasonable and responsible moral agent, capable of exercising the “right of disposition, control, and management."
The history of coverture and its abolition teaches an important lesson about property. Owner sovereignty is not merely a matter of rights. Property owners exercise sovereignty over their assets by reasoning about ends and purposes and choosing among intelligible reasons for action. The core of property—the owner’s sovereignty over his or her assets—secures a zone of freedom within which the owner uses assets to create new projects, commitments, and states of being, which other people might not value. If a common-good theory of property is defensible (I have argued on this blog that it is) then property presupposes the capacity of human beings to make pre-moral choices of and among basic human goods, to create reasons for action by undetermined choices, and to make those choices in pursuit of genuine goods for the benefit not just of the property owner but also of those with whom the owner-sovereign is in community.
Owner sovereignty thus enables free choice (what some would call personal autonomy), which is a distinctly human achievement. Legal doctrines that fail to account for and respect the capacity for freedom, responsibility, and practical reasonableness in a class of persons are not merely unwise, but also are inconsistent with human dignity, and are for that reason unjust.
This suggests that there are principled limitations upon the state's regulation of land use. Owner sovereignty is not merely a matter of expedience, efficiency, or prudence. As a matter of principle property law must respect the core of owner sovereignty, which frees the property owner to choose. And on this view, the canonical police powers, which the state exercises for the health, safety, morals, and general welfare of its citizens, correspond to truly common goods. The police powers are not arbitrary. This entails that they must not be exercised in arbitrary ways. If the good of citizens is truly common then the state cannot justify its actions on the ground that a loss by a property owner is outweighed by the collective good of the greatest number. Rather, the state may act only to protect a truly intelligible end, which the action of some property owner threatens.
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