October 6, 2008
Property article critiquing excessive reliance on law and economics
A recent property article by Eduardo M. Peñalver entitled "Land Virtues" has been posted to SSRN. The paper's focus is property law, but I think says a lot to those with a poverty/property focus. The abstract is below:
This article has two goals. First, I explore some of the descriptive and normative shortcomings of traditional law and economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other "commodities." The complexity of land - its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it - undermines the notion that owners will focus on a single value, such as wealth, in making decisions about their land. Adding to the equation land's "memory," by which I mean the combined impact of the durability of land uses and the finite quantity of land, calls into question the normative assessment that owners whose behavior is guided by a unitary measure like market value are using their land wisely, or at least more wisely than other modes of decision-making might hope to accomplish. The shortcomings of traditional law and economics theories of land use point toward the benefits of a pluralist theory of property based on the Aristotelian tradition of virtue ethics. Setting forth the broad outlines of such a theory as it applies to the law of land use is the second goal of this article. Virtue theory, I will argue, is capable of incorporating the valuable insights that have made economic analysis so appealing to land use theorists without distorting our moral vision or treating economic consequences as the only considerations that ought to matter.
Personally, I think the article is
great. My own critique is a tiny one -- I think of New Institutional
Economics as accomplishing more than what is acknowledged in the paper and
worthy of more exploration, but that is only because I have a particular NIE
interest. If you download it you will see that Peñalver
has a great section on how failure to correct for inability to pay in
traditional law and economics work ends up wrongly prioritizing the desires of
the wealthy versus the poor.
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