Wednesday, December 21, 2011
Gregory Alexander (Cornell) has posted Pluralism and Property (Fordham Law Review) on SSRN. Here's the abstract:
Welfarism is no longer the only game in the town of property theory.1 In the last several years a number of property scholars have begun developing various versions of a general vision of property and ownership that, although consistent with welfarism in some respects, purports to provide an alternative to the still-dominant welfarist account. This alternative proceeds under different labels, including “virtue theory” and “progressive,” but for convenience purposes let us call them collectively “social obligation” theories. For what they have in common is a desire to correct the common but mistaken notion that ownership is solely about rights. These scholars emphasize the social obligations that are inherent in ownership, and they seek to develop a non-welfarist theory grounding those inherent social obligations.
These social obligation theories have attracted no shortage of critics.2 No critic, however, has raised an ambiguity that characterizes most, if not all, of the work in this vein. Although social obligation theorists have been clear about their commitment to the idea that ownership imposes affirmative as well as negative duties to other members of their communities, they have not always been clear about the normative basis or bases of those duties. More specifically, they have not always indicated whether their theory is value monist or value pluralist; that is, whether it rests on a commitment to a single overriding moral value or multiple moral values. Of course, this is a fundamental question not only for social obligation theorists but also all property scholars engaged in projects of developing general normative theories of property, including welfare theorists.3 Whether they believe that a single value guides, and should guide, all of property law or that no single view of the good either can or should underlie all of property law’s contextual and doctrinal diversity, property theorists must explicitly acknowledge and explain their position on this basic question.4
This paper has two objectives. The first is to clarify the positions on the monism-pluralism question among social obligation property theorists. Because so few theorists have explicitly confronted that question, I try to tease out their positions from their normative work, recognizing full well that this approach risks attributing views that the author does not hold at all. My second objective is normative. I argue, albeit briefly, in favor of value pluralism as the morally superior approach, one that is both analytically and normatively more defensible.
The discussion proceeds as follows. Part I provides a brief explanation of the terms monism and pluralism as they are used in modern value theory. Part II sets forth a taxonomy of various social obligation property theorists’ views on the monist versus pluralist approach to values. Part III then takes a normative turn, arguing in support of value pluralism generally and how my social obligation theory specifically conforms to such an approach. It also discusses the problem of incommensurability that arises under value pluralism. I argue that the incommensurability of competing values does not warrant the conclusion that no rational choice between them is possible. Rational choice is possible, but this does not mean that only one rational solution is always possible. An unavoidable, and perhaps tragic, consequence of pluralism is that in cases in which two or more incommensurable values are involved, there will sometimes be situations in which more than one rational choice is available. There is not always a single correct answer. But that does not mean that no rational solution is possible. Such is the human condition.
The value monism versus value pluralism problem is not unique to property theory. This paper could have been written just as easily about contract or tort theory as well as other topics of legal theory. Property theory happens to be the domain that I know best. Scholars in other fields may find this paper useful for their own purposes. If so, they may wish to skip Part II, which deals specifically with property scholarship.