Property's Ends: The Publicness of Private Law Values

• Author: Gregory S. Alexander
• Position: A. Robert Noll Professor of Law, Cornell University
• Pages: 1257-1296

Property’s Ends: The Publicness of Private Law Values Gregory S. Alexander  ABSTRACT: Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Essay contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic nor simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are ― social and political. A consequence of this conception of the human condition is that the values that constitute human flourishing—property’s ends—are public as well as private. Further, the public and private values that serve as property’s ends are mutually dependent for their realization. Hence, any account of property that assigns it solely to the private sphere, categorically removed from public values, is incoherent. INTRODUCTION .................................................................................... 1259 I. HUMAN FLOURISHING: A PLURALIST CONCEPTION ............................. 1262 II. PROPERTY’S ENDS ................................................................................ 1264 A. A UTONOMY ............................................................................ 1264 B. P ERSONAL S ECURITY /P RIVACY ................................................... 1265 C. S ELF -D ETERMINATION .............................................................. 1267 D. S ELF -E XPRESSION ..................................................................... 1267 E. R ESPONSIBILITY ............................................................................. 1269  A. Robert Noll Professor of Law, Cornell University. An early version of this paper was prepared for a conference on “The Interface of Public and Private Law Concepts in Property,” sponsored by Kings College, London, on June 14, 2012. I presented revised versions at the Progressive Property Group Conference, at Harvard Law School, in May 2012, and at faculty workshops at Georgetown, Notre Dame, and Cornell law schools. I am grateful to the organizers of the conferences and workshops for inviting me. I am also grateful to Josh Chafetz, Hanoch Dagan, Mark McKenna, Tom McSweeney, Eduardo Peñalver, John Pojanowski, Emily Sherwin, Steve Shiffrin, Laura Underkuffler, and other participants at the conferences and workshops for very helpful comments and suggestions. 1258 IOWA LAW REVIEW [Vol. 99:1257 III. THE PUBLIC VALUES OF HUMAN FLOURISHING ................................... 1270 A. E QUALITY ............................................................................... 1271 B. I NCLUSIVENESS ........................................................................ 1271 C. C OMMUNITY ........................................................................... 1273 D. P ARTICIPATION ....................................................................... 1275 E. S ELF -C ONSTITUTION ....................................................................... 1276 IV. WHY, WHICH, AND WHEN PUBLIC VALUES ARE AMONG PROPERTY’S ENDS .................................................................................................... 1277 V. PUBLIC AND PRIVATE TOGETHER: TWO EXAMPLES .............................. 1284 A. T HE R IGHT TO E XCLUDE : A UTONOMY AND S ELF -C ONSTITUTION ...... 1284 B. T HE E NFORCEABILITY OF H OMEOWNER A SSOCIATION R ULES ............ 1291 CONCLUSION ....................................................................................... 1295 2014] PROPERTY’S ENDS 1259 INTRODUCTION Donald Lamp was outraged. Every morning since 9/11, the eighty-nine year old World War II veteran had hung an American flag from the balcony of his Omaha, Nebraska apartment. But in May 2004, the management board of the retirement community in which he lives ordered him to remove his flag, citing a violation of one of the covenants in the master plan that governs the development. Lamp refused. These sorts of disputes are not uncommon in homeowner associations. What made Donald Lamp’s case noteworthy was the fact that he was the father-in-law of U.S. Supreme Court Justice Clarence Thomas, a fact apparently of little moment to the association’s general manager. “We have a lot of important people here,” she said. However true that may be, Lamp’s case got national attention, much of it unfavorable for the homeowner association. A typical reaction was this posting on a blog site: “Donald Lamp fought for our right and his right to display our nation’s flag anywhere and anytime.” 1 The question, of course, is, does Mr. Lamp have such a right? On one view, a view informed by the private law values of property law, the answer, quite clearly, is no. The covenant restricting the display of flags within the development was included in Mr. Lamp’s deed. He had legal notice, either actual or record notice, of it at the time he entered into the purchase of his unit, and he agreed to be bound to it. The matter is strictly one of consent. So long as he had notice of the restrictive covenant at the time he entered into the agreement with the association, he is bound by it. 2 Donald Lamp and his supporters did not see the matter this way. To them, some values cannot be contracted away. These are fundamental values—public values—and among them is the right to display the American flag. So the argument goes. The dispute between Mr. Lamp and his homeowner association is not aberrational. There have been many such disputes, some litigated, some not, over conduct ranging from speech to religion to satellite antennas. Although not all of these disputes involve values that could plausibly be characterized as fundamental (the right to hang a clothesline outdoors?), many of them do. The question is whether such values have any traction in the realm of private ordering. I want to approach this question in a somewhat unusual way. In the United States, the usual approach to the question is through public law, notably the American constitutional doctrine of state action. Under this doctrine, constitutional values do not apply unless there has been state 1. Yoe, Comment to Nebraska Retiree Fights to Hang American Flag , FOX NEWS (May 28, 2004, 5:00 PM), http://www.freerepublic.com/focus/f-news/1144102/posts. 2. See Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes , 55 S. CAL. L. REV. 1353, 1356–57 (1982). 1260 IOWA LAW REVIEW [Vol. 99:1257 action, i.e., unless the actor responsible for the restriction or other action in question is a government agency or otherwise acting under the authority of the government. Constitutional norms and their attending values do not apply to strictly private actions. That approach has been singularly unhelpful. It asks under what circumstances it is appropriate for public law norms and their underlying values to intrude upon the domain of private volition, replacing that sphere’s own distinctive set of values with its own. There are two related and contestable assumptions here. The first, and more familiar, assumption is that there is a categorical separation between the public and private spheres. The second assumption is perhaps less obvious—that a similar sort of distinction exists between the values which inhere in the norms regulating the two spheres, indeed that the differences between the two sets of values are such that there is, or at least may be, a basic level of incompatibility between them. It is this second assumption that I wish to challenge. I argue that not only are the values that inhere in public law norms compatible with the values that serve as the normative foundation of private property, but further that such public values may be necessary for realization of private property’s ends. This Essay operates at both a conceptual and a normative level. At a conceptual level it seeks to elucidate the normative basis of the private law of property. In particular, it explicates how, as a conceptual matter, the private values of property relate to and interact with property’s public values so that the two dimensions cohere rather than conflict. At a normative level, I argue that even if one rejects the interpretation of property as resting on a moral foundation of human flourishing, understood as constituted by multiple values, both public and private, the human flourishing theory represents the best approach to develop a morally pluralistic theory of property that relates multiple public and private values, which are commonly seen as in conflict, as coherent and mutually supportive. The normative foundation of private property, I argue, is human flourishing. I understand human flourishing to mean that a person has the opportunity to live a life as fulfilling as possible for him or her. This account of human flourishing is morally pluralistic; that is, it rejects the notion that there exists a single, irreducible, fundamental moral value to which all other moral values may be reduced. However, the theory is also objectivist, and does not claim that value determinations are simply matters of agent sovereignty. Thus, the theory conceives of human flourishing as including (but not limited to): individual autonomy, personal security/privacy, self-determination, self-expression, and responsibility (along with other virtues). The thesis of this Essay is that these values, the values that theorists take to be among the intended ends of private property, are not in conflict or incompatible with fundamental public values. Rather, these values, at times, require recognition of public values for property’s own values to be realized. 2014] PROPERTY’S ENDS 1261 Stated differently, human flourishing, understood as morally pluralistic, includes both private and public values. From this perspective, then, the relationship...