FROM OBLIGATIONS TO RIGHTS AND BACK TO OBLIGATIONS?
“Every legal culture has its fundamental words,” writes Robert M. Cover (Cover Reference Cover1987, 65). For all major religions of the world, the “fundamental word” is “obligation” (ibid.; Morgan-Foster Reference Morgan-Foster2005). “For millennia, duties—or responsibilities, as we are more apt to call them now—were the main commitment of religious ethics and thus the centerpiece of the history of ethical culture,” writes Samuel Moyn (Moyn Reference Moyn2016). Also, republican political thought, which played an important role in European political thought since Aristotle, (Viroli Reference Viroli and Shugaar1999; Pettit Reference Pettit1997; Haakonssen Reference Haakonssen, Goodin and Pettit1993), as well as in American political thought until the Civil War (Rodgers Reference Rodgers1992), expects citizens to incur responsibility for the promotion of the common good of their political communities. However, starting with the sixteenth century a revolution took place in Western thought: “right” became the primary unit in political and legal discourses, and “obligation” was relegated to a secondary, derivative status. This shift is usually associated with the rise of social contractarian thought such as those of Hobbes and Locke (Taylor Reference Taylor, Avineri and De-1992, 30; Morgan-Foster Reference Morgan-Foster2005, 77) and with the need to counterbalance the power of the rising nation-state (Cover Reference Cover1987, 69).Footnote 1
In the years since World War II, rights discourse substantially expanded both in American law and politics, and globally. In the United States, people sometime refer to “a rights revolution,” and attribute it to the activist rulings of the Warren Court and to the Civil Rights Movement of the 1950s and 1960s (Glendon Reference Glendon1991, 4; Minow Reference Minow1987, 1860; Schneider Reference Schneider1988, 152–53 (“Even the Burger Court has extended the regime of rights, if not by finding new rights, at least by finding fresh implications of old ones.”)), as well as to the rise of social reform litigation (Paris Reference Paris2006, 1004). It has been argued that following these processes rights discourse has become the “mother tongue” and “first language” in discussions of important public issues in America (Glendon Reference Glendon1991, 47, 173; see also White Reference White1992, 1272–73, 1267). As Carl Schneider put it, “in our intellectual and social life, rights thinking has achieved a currency unmatched in our history” (Schneider Reference Schneider1988, 152–53). Likewise, Anthony T. Kronman writes that “ours is the age of rights”: the growth in the number and variety of rights in the West is “without historical precedent,” and “the moral and political ideals on which it is based are increasingly acknowledged, rhetorically at least, in other parts of the world as well” (Kronman Reference Kronman2016, 68). In the world arena, rights discourse spread as a result of the development of human rights doctrine in the years following World War II (Glendon Reference Glendon1991, 7; Nussbaum Reference Nussbaum1997, 273). Also, in countries such as Germany and China, a jurisprudence of horizontal invocation of constitutional rights evolved, according to which these rights may not only serve as defensive means against vertical state excesses, but also as means for recruiting state agencies for the elimination of infringements initiated by nonstate actors (Caldwell Reference Caldwell2012).
The prevalence and shape of American rights discourse has been criticized (Glendon Reference Glendon1991; White Reference White1992; Schneider Reference Schneider1988). “[R]ights criticism abounds,” wrote Martha Minow in 1987 (Minow Reference Minow1987, 1860). In particular, the allegation has been made that rights discourse neglects the social dimension of personhood and thus makes it difficult to generate responsibilities for the well-being of the groups and communities within which human personhood is formed (Glendon Reference Glendon1991, 14, 48, 109; see also Nedelsky Reference Nedelsky1993, Reference Nedelsky2011; Minow Reference Minow1987, 1865; White Reference White1992, 1270–71; Cover Reference Cover1987, 66). As Carl Schneider put it, “[t]hinking in terms of rights encourages us to ask what we may do to free ourselves, not to bind ourselves. It encourages us to think about what constrains us from doing what we want, not what obligates us to do what we ought. Obligations create relationships, connections and bonding between individuals and communities” (Schneider Reference Schneider1988, 163–64). (Karl Marx was the first to develop this line of criticism against liberal rights in On the Jewish Question Marx 1844, Reference Marx and Tucker1978). In the same vein, Anthony T. Kronman argues that since gratitude “is incompatible with the independence to which the political morality of rights attaches supreme importance,” with the spread of rights discourse “gratitude has become increasingly difficult to acknowledge or express as a public value, and been replaced by a different set of attitudes, characterized by an alertness on the part of each citizen to the vindication of his or her rights and by readiness to demand their enforcement.” This is “a seismic shift in public sentiment whose repercussions may be felt in many quarters,” argues Kronman (Kronman Reference Kronman2016, 72). In addition, conservative thinkers argued that rights mushroomed without a legitimate basis, while left-leaning scholars portrayed rights as incoherent, contradictory, and indeterminate, and therefore as prone to manipulation (Tushnet Reference Tushnet1984; see also Minow Reference Minow1987, 1860, 1864). Cause lawyering scholars diminished the importance of rights litigation as a means for effecting social reform (Scheingold Reference Scheingold1974; Paris Reference Paris2006). Joseph Raz argued that since there is more to morality than rights and duties, e.g., supererogation, “right-based moralities are impoverished moral theories and are unlikely to provide adequate foundations for an acceptable humanistic morality” (Raz Reference Raz and Waldron1984a, 183–86). Rights-based moralities provide neither reasons for action nor “the precepts instructing people how to live and what makes for a successful, meaningful, and worthwhile life,” concluded Raz (ibid., 198). Feminist thinkers criticized common understandings of rights for their neglect of the importance of interpersonal relationships in the lives of humans (Nedelsky Reference Nedelsky1993, Reference Nedelsky2011; Braudo-Bahat Reference Braudo-Bahat2017).
The important point however is that even these varied critiques of rights discourse have not gone as far as the development of an alternative normative discourse premised on the notion of duties. There is no Universal Declaration of Human Duties, and no international Human Obligations Movement, notes Samuel Moyn, adding that in the second half of the twentieth century political theory lost track of the concept of duty to such an extent that even communitarian thinkers view interdependence as the setting for personal freedoms, “not a substitute for them” (Moyn Reference Moyn2016, emphasis in original text). And James Boyd White comments on Mary Ann Glendon’s Rights Talk, certainly a pivotal contribution in the critique of rights literature, that its claim “is not that we should never talk about rights, but rather that our particular discourse about rights … has features which make it a very poor vehicle for thought and argument. … [Glendon] argues not for the elimination or reduction of our rights discourse, but for what she calls its renewal and transformation” (White Reference White1992, 1268). Moreover, the critique of rights bred what may be called “a counter critique of the rights critique.” Rights were presented as crucially important for the protection of vital human interests (by their very definition, rights are meant to protect vital human interests. See Raz Reference Raz and Waldron1984a, 183, Reference Raz1984b, 195, 207–08, 213), for the elimination of oppression, and for the creation of a shared humanity and dignity (Williams Reference Williams1991; West Reference West1992; Minow Reference Minow1987).
It is on this background that we can appreciate the novelty of Gregory S. Alexander’s recent book Property and Human Flourishing. Alexander, a scholar of property law, speaks the language of obligations and responsibilities: he elaborates the obligations and responsibilities that property owners should owe to the communities in which they are embedded. Put differently, Alexander surmounts the allegation that rights discourse makes it difficult to generate responsibilities for the well-being of the groups and communities within which human personhood is formed. Alexander’s shift of discourse is particularly noteworthy because he makes it within the context of no other than the concept of property. It has often been argued that since Locke’s articulation of personhood in terms of property, the concept of property has had substantial influence over the development and shape of American discourse of personal rights in general (Underkuffler Reference Underkuffler1990, 138, 139; Glendon Reference Glendon1991, 21, 24, 31, 40; West Reference West1992, 1778).Footnote 2
However, though Alexander’s endorsement of the normative language of obligations and responsibilities places him in a minority position in both general and property jurisprudence in the United States, he is not alone. There is a distinct European understanding of property as “a public utility rather than an absolute and inviolable right divorced from any responsibility to one or more communities” (Abraham, 954). (This understanding is codified in Section 14(2) of the German Basic Law (Grundgesetz), which provides that: “Ownership entails obligations. Its use should also serve the public interest.”)Footnote 3 It has been argued that human rights doctrine needs to be supplemented with a doctrine of duties to be incurred by state and nonstate entities (Clapham Reference Clapham2006; Ratner Reference Ratner2001; Dahan, Lerner and Milman-Sivan Reference Dahan, Lerner and Milman-Sivan2013). In addition, in the closing decades of the twentieth century, we witnessed the rise of the discourses of “corporate social responsibility,” which in turn affected the practices of corporations and business schools. (Ronen Shamir argues that this development is “a product of the neo-liberal project of dissolving the epistemological distinction between market and society” (Shamir Reference Shamir2008a, 373; see also Shamir Reference Shamir2008b).) And Samuel Moyn calls for restoration of the concept of duty to the paramount status it occupied in Western political and moral thought for millennia: “The anxious sense that to legitimate talk of duty is to flirt with disaster … is understandable but indefensible” (Moyn Reference Moyn2016). Nonetheless, if in the coming years we shall witness a movement of the concept of duty from its current peripheral position back to the central place it occupied in political, moral, and legal thought for many centuries, Alexander’s Property and Human Flourishing will likely be regarded as an important landmark in this process.
THE IDEAL OF THE GOOD LIFE: FROM AUTONOMY TO FLOURISHING
The Political Theory of the Liberalism of Flourishing
There is a division in liberal political theory of the past generation between “political” liberalism and “comprehensive” liberalism. According to political liberalism, the fundamental problem for political theory is how to accommodate the lack of consensus among citizens who adhere to diverse moral, philosophical, and religious doctrines as to the good life. Comprehensive liberalism holds that the liberal state should enhance the good life of its citizens. In recent decades, comprehensive liberalism has been dominated by the view that autonomy is a constituent element of the good life, and that the liberal state should enhance the autonomy of its citizens (Mautner Reference Mautner2018, chapter 3).
But there is another comprehensive strain in the liberal tradition. I call it the liberalism of flourishing (ibid.). It has two versions: the first claims that the good life consists in the ability of persons to develop their intellectual and moral capabilities; and the second claims that the good life consists in the ability of persons to develop and exercise their varied human capabilities. The roots of this strain of liberalism lie in the writings of John Stuart Mill who took his inspiration from Aristotle’s notion of flourishing (eudaimonia) and from the bildung ideal of German Romanticism of the last decade of the eighteenth century and the first half of the nineteenth century. (Mill opens On Liberty with a citation from Wilhelm von Humboldt, one of the most prominent thinkers of the German Romantic Movement (see Sorkin Reference Sorkin1983; Bruford Reference Bruford1975), and recites Humboldt in a famous passage in chapter 3.) Mill’s fertile ideas were subsequently furthered and developed by philosopher T. H. Green and the British New Liberals (see Mautner Reference Mautner2018, chapter 1) of the late nineteenth century and early twentieth century. In North America, these ideas were developed and advanced by John Dewey, Canadian political theorist C. B. Macpherson, and Martha C. Nussbaum, and Douglas B. Rasmussen and Douglas J. Den Uyl.
Thinkers of the liberalism of flourishing usually hold that it is the function of the state to create the background conditions (health care, education, housing, minimum wage, maximum working hours, workplace safety, etc.) that allow persons to develop their capabilities. For them, the state is not a necessary evil, but a prime instrument for the improvement of human lives. It has been argued that the policies advocated by liberalism of flourishing thinkers overlap those put forward by proponents of social democracy, and some of these thinkers have sometimes been referred to as “social liberals” or as “liberal socialists.”Footnote 4
Being a liberal political theory, the liberalism of flourishing does not expect the state to coerce its citizens into developing any of their capabilities. Rather, the state is merely supposed to create the background conditions for flourishing, leaving it to each person to decide whether and to what extent she opts to make use of these conditions and develop her capabilities. Put differently, the liberalism of flourishing shares with autonomy liberalism the view that the good is to be subjectively determined by each person for herself.
Thinkers of the liberalism of flourishing reject atomist ontology and endorse a communitarian ontology (i.e., one that views persons as socially embedded). (Mill, Green, and the New Liberals preceded late twentieth century communitarian critiques of atomist liberalism by about a century.) They understand the interdependence that exists between persons in the sense that the development of human capabilities cannot take place but through interactions with other persons, and that the development of the capabilities of each person is substantially affected by the level of the development of the capabilities of other persons. Green, for example, stated that “realisation and fulfilment can only take place in and through society. Without society, no persons …. [T]he human spirit can only realise itself … through society, since society is the condition of the development of a personality” (Green 1883, Reference Green2003, sections 190, 191; see also Simhony Reference Simhony2003).
Alexander’s Theory of the Connection between Property and Human Flourishing
Professor Alexander, like thinkers of the liberalism of flourishing, endorses human flourishing as the central ideal of the good life. However, unlike liberalism of flourishing thinkers, he does not make flourishing the basis of a political theory. Rather, he offers a theory of property law, one of the branches of private law: he argues that private ownership of property is justified insofar as it facilitates the opportunity of persons to live flourishing lives, and that human flourishing should be the goal that property law realizes. Alexander puts forward this understanding as an alternative to the two theories that now dominate Anglo-American writing about property: the utilitarian/information-cost theory (Merrill and Smith Reference Merrill and Smith2000, Reference Merrill and Smith2001) and the Kantian rights theory (Weinrib Reference Weinrib2012a, Reference Weinrib2012b; Ripstein Reference Ripstein2009, Reference Ripstein2016). Utilitarian theories of property are concerned with welfare and efficiency. Kantian theories are concerned with rights, freedom, and independence. Introducing Aristotelian notions into property theory, Alexander’s concern is with human flourishing. He argues that a person’s flourishing should be measured by her capabilities, rather than by her possessions or by the extent to which she succeeds in satisfying her subjective preferences. However, Alexander’s theory is liberal. Therefore, whether and to what extent a person chooses to exercise her capabilities is up to her (Alexander 2018, 54).
Alexander views human flourishing as an objective ideal. Following Derek Parfit, he holds that “certain things are good for us, whether or not we want to have the good things, or to avoid the bad things” (Parfit Reference Parfit1986, 493).Footnote 5 However, Alexander is a value pluralist. He rejects the view that there exists a single irreducible fundamental value to which all other values may be reduced (value monism). (On value pluralism and monism, see Galston Reference Galston2002, chapter 1.) He therefore maintains that human flourishing is a pluralistic ideal: there is no one way to lead a flourishing life; rather, there are multiple, competing ways to flourish, and these ways are incommensurable.Footnote 6 Alexander lists several basic goods that are essential, though not necessarily sufficient, for every life to be considered well-lived: personal autonomy (self-governance and the ability to choose which paths to pursue), personal security/privacy, personhood, self-determination, community, and equal dignity. (Cf. Martha C. Nussbaum’s list of “ten central capabilities” (Nussbaum Reference Nussbaum2011, chapter 2).)
FLOURISHING AS CRITERIA FOR THE ALLOCATION OF ENTITLEMENTS TO PROPERTY AND AS THE BASIS OF THE OBLIGATIONS OF PROPERTY OWNERS
The ideal of human flourishing serves two functions in Alexander’s theory. The first is that of providing criteria for the allocation of entitlements to property. For example, in discussing cases having to do with the right of owners to exclude strangers, cases of expropriations and eminent domain, and cases in which owners and artists wish to destroy buildings and art artifacts, Alexander applies a calculus of the flourishing interests of the parties involved, and the interests of the communities to which property owners belong, in order to resolve conflicting claims.
The second and more fundamental function that the ideal of human flourishing serves in Alexander’s theory is that of expounding the concept of private ownership, and delineating the moral and legal obligations to which owners of property are bound in their relations with the communities to which they belong. Alexander endorses Charles Taylor’s “social thesis,” according to which embeddedness in liberal society and culture is not only a description of the ontological condition of persons living in liberalism; it is also a basis for the generation of obligations of such persons to sustain the free society and culture from which they have benefited and to act for their continued existence (Taylor Reference Taylor, Avineri and De-1992, 46, 47, 49). In line with that, Alexander’s central normative claim is that persons owe moral obligations to the communities that have enabled their flourishing. From our appreciation and respect of our capabilities as the means that constitute our humanity follows a commitment of us to foster the conditions that enable the development and exercise of our capabilities. And since these conditions are the existence of certain communal cultures, institutions, and infrastructures, we are morally obligated to support and nurture the flourishing-enabling cultures, institutions, and infrastructures from which we have benefited. Moreover, if we appreciate the conditions that enable flourishing, we should strive for these conditions to be available to all others living in the communities that have made the conditions beneficial for us, argues Alexander (Alexander 2018, 59).
This reasoning dictates Alexander’s understanding of the concept of ownership: ownership comes with obligations that are inherent to it, namely the moral obligations that property owners owe to members of the communities to which they belong.Footnote 7 It is the function of the state to enforce many (not all) of these moral obligations by means of property law, maintains Alexander (ibid., 57).
Arguably, we may be morally bound as human beings to the communities to which we belong, and we may be legally bound to them as citizens. The crucial move made by Alexander is to argue that we are specifically obligated to support the continued functioning of the flourishing-enabling communities to which we belong in our capacities as property owners. Owning property is an important factor in the ability of persons to lead flourishing lives, holds Alexander, and since human flourishing is dependent on the existence of certain enabling conditions in the communities to which persons belong, and since these enabling conditions include the availability of resources, then property owners owe obligations to make sure that the communities to which they belong have at their disposal the resources requisite for their ability to perpetuate their flourishing-enabling conditions.Footnote 8
However, the “[o]bligations that property owners owe to other members of their communities vary according to the strength of the community connection,” argues Alexander (ibid., 95). Also, the moral obligations of property owners extend only to communities that promote the conditions allowing flourishing. Communities that suppress the conditions requisite for flourishing do not deserve support (ibid., 54).
This focus on the obligations entailed by owning property, is far-removed from the prevalent Hohfeldian view of property as a bundle of rights, privileges, powers, and immunities (Hohfeld Reference Hohfeld1917; see also Singer Reference Singer1982). Indeed, Alexander writes that “the responsibility dimension of private ownership has been sorely undertheorized in US law. Property theory has relegated the social obligations of owners to the margins, while individual rights, such as the right to exclude, have occupied the center stage” (Alexander Reference Alexander2018, 40). Also, as a matter of positive law, the Hohfeldian image is highly misleading, argues Alexander. The right to exclude itself, thought by many to be the most important twig in the so-called bundle of property rights,Footnote 9 is subject to many exceptions, both at common law and by virtue of statutory or constitutional provisions; property owners owe far more responsibilities to others than the conventional imagery of property rights suggests.
Alexander is the central contributor to what is known as “progressive property theory.” The prime ideal of this strand of scholarship is the advancement of human flourishing, and its principal goal is to find solutions to property-related problems that profoundly affect the lives of poor or powerless people (ibid., 312–20).
Alexander’s argument about the obligations of property owners to members of the communities to which they belong is also close in spirit to the argument made by the British New Liberals of the late nineteenth century and early twentieth century. Like Alexander, the New Liberals viewed ownership of property not only as the result of owners’ initiative, but also as the outcome of the social conditions and cultural heritage that allowed owners to make use of their entrepreneurial skills (Mautner Reference Mautner2018, chapter 1) Therefore, they saw taxation as the transfer to society of its due share in the wealth created within a social context. Additionally, like Alexander, the New Liberals realized that creation of life conditions that enhance flourishing requires resources. However, for them the government was the agency in charge of assuring citizens the life conditions enabling human flourishing, and the source of the resources requisite for that was the tax system, not, as it is for Alexander, ownership of property.Footnote 10
Alexander’s theory is in line with Samuel Scheffler’s theory of relationship-based responsibility. Human relationships to which people attach value or significance generate responsibilities, writes Scheffler. “It seems that whenever people value an interpersonal relationship they are apt to see it as a source of special duties or obligations” (Scheffler Reference Scheffler1997, 189–90). These responsibility-generating relationships may consist in the fact of being member of a certain kind of group, such as a community, argues Scheffler.Footnote 11
OBLIGATIONS TO PAST AND FUTURE COMMUNITIES
Alexander extends the obligations of property owners to members of past and future communities (Alexander 2018, chapter 4).
People have interests in having life-transcending projects carried through and realized after their deaths, writes Alexander. The dead are dependent on the living to honor the interest they have in seeing their life-transcending projects continued and realized beyond their lifetime. Creators transmit to their future counterparts the expectation that the designated recipients will accept the projects and exercise reasonable efforts to carry them forward in the best possible way. If creators knew that their projects would die with them, their lives would be significantly diminished. Past generations speak, as it were, to future generations. Those generations, in turn, speak back to the past by interpreting their projects from their own point of view.
Therefore, in line with his general view of humans as interdependent with each other for their flourishing,Footnote 12 Alexander holds that each generational community owes its predecessors the obligation to accept life-transcending projects transmitted to them by their forebears, and to make reasonable efforts to carry those projects forward into the future. These obligations are grounded on reciprocal dependency. Our obligations to both deceased and unborn members of the various communities that nurture the capabilities necessary for our flourishing derive from our and their dependency on each other, argues Alexander. Members of past generational communities are dependent on their successors for their projects to continue into the future, a matter that is constitutive of the project creators’ flourishing.
However, creators of life-transcending projects, in transmitting such projects to successive generational members, are under the moral obligation not to impose immoral, unreasonable, or foolish projects on their successors. In addition, the obligations regarding life-transcending projects are defeasible. Persons to whom life-transcending projects have been forwarded are free to reject projects that are immoral or that otherwise unreasonably burden them.
As to the obligations that members of a present-day generation owe to members of future generations, Alexander distinguishes between two types of obligations: general and specific obligations. The general obligation is to provide future generations with the basic resources that are necessary for them to be able to flourish. The overall range of opportunities open to successive generations should not be narrowed. Therefore, we are morally obligated not to consume the resources that we have received from past generations, argues Alexander. We are morally obligated to conserve them, maintain them, and improve them, where necessary. This obligation is general insofar as it is not project specific; its purpose is to enable future generations to flourish. The specific obligations are project-specific, that is, their purpose is to enable members of successive generational communities to whom particular life-transcending projects have been forwarded to be carried out. The future generational members to whom projects are transferred must be given the resources that are necessary to carry the projects forward in their intended ways.
PROPERTY OWNERS AS CITIZENS
“[P]rivate law addresses our interpersonal relationships as private individuals rather than as citizens of a democracy,” write Hanoch Dagan and Avihay Dorfman. “Our private obligations … are unencumbered … by the … public obligations of cocitizenship” (Dagan and Dorfman Reference Dagan and Dorfman2016, 1410, 1415; see also Reference Dagan and Dorfman2018). And Mary Ann Glendon cautions that “technically proper legal negations of responsibility can easily miseducate the public about what it means to be a citizen” (Glendon Reference Glendon1991, 104). I noted that under republican political theory citizens are expected to incur responsibility for the promotion of the common good of their political communities. Alexander’s theory, with its view of property owners as being under an obligation to act for the human flourishing of members of their communities, makes property owners close to citizens. Indeed, Joseph Singer, who shares Alexander’s view of property owners as bearers of social obligations, put forward a “property as citizenship” model, the essence of which is the idea that property owners are like “citizen[s] in a free and democratic society” (Singer 2006, 313). “The citizenship model seeks to confer freedom and equality on all persons, spreading rights to all, but it simultaneously places owners in the role of guardians of social order,” writes Singer (ibid., 330). Likewise, William H. Simon offers a model of property that expects property owners to “bear a relation of potential active participation in a group or community constituted by the property,” and calls it “social-republican property” (Simon Reference Simon1991, 1336).
APPLICATION OF THE IDEAL OF HUMAN FLOURISHING TO OTHER BRANCHES OF PRIVATE LAW?
In addition to offering a general theory of property and property law, Alexander sets forth complex and detailed discussions of particular doctrines of property law (e.g., the right to exclude, expropriation and eminent domain, the right to destroy buildings and art) in light of his understanding of property as a source of human flourishing. In many of these discussions Alexander successfully argues that the flourishing perspective not only can explain central property law doctrines and court holdings, but also that thinking about property law problems through the flourishing perspective may yield fruitful insights. His book therefore invites thinking about the doctrines of other branches of private law (e.g., contracts, torts, and restitution) from the perspective of the human flourishing ideal. In what follows I wish to offer two preliminary thoughts as to the combination of the ideal of human flourishing with contract law.
Flourishing-Enhancing Contracts
A unified theory of contracts is the creation of the nineteenth century. Before that, Anglo-American law did not recognize the category of “contract law.” Rather, it viewed contracts in terms of their particular types, such as sale of goods, mortgage, bailment, guarantee, etc. (Gilmore Reference Gilmore1974; Horwitz Reference Horwitz1977, chapter 6; Atiyah Reference Atiyah1979; Kreitner Reference Kreitner2007). However, thinking about numerous types of contracts within the framework of one, unified category stands in tension with the practical reason logic of the common law, which mandates thinking about legal problems in terms of narrow factual categories.Footnote 13 Contract law ameliorates this tension by preserving the former particular categories and adding new ones, if necessary (e.g., consumer contracts and government procurement contracts, the two great additions of the twentieth century).
Many contracts are made for the purpose of maximizing wealth, and often both parties to them are corporations. For these contracts, utilitarian theories, such as the ones offered by economic analysis of law, are suitable. However, there are many contracts that do not have much to do with wealth maximization. These are contracts to which one, and often both, of the parties is a natural person, and it is possible to think about these contracts in utilitarian terms as well. In addition, unlike contracts between corporations, it is possible to think about such contracts within the paradigm of autonomy.Footnote 14 However, I would like to suggest that the most compelling paradigm for thinking about such contracts is the human flourishing paradigm.
As a working example, let us take up the contract between a patient and her physician. (We may have in mind other types of contracts, as well, e.g., the contract between a client and a lawyer, a homeowner and an architect, a student and a tutor, or for the purchase of a home.)
Several things characterize these types of contracts:
First, one party (the patient, the client, the homebuyer, etc.) is interested in increasing her human flourishing. The other party too is interested in increasing her human flourishing. Of course, the doctor is interested in getting a fee for her knowledge, but is she not interested, maybe even more, in gaining emotional satisfaction from solving the health problem of the patient (not to say from saving the patient’s life)? Is the lawyer not interested in the emotional satisfaction that comes with solving her client’s legal problem? Is the architect not interested in the emotional satisfaction that comes with the knowledge that she has provided her client with a welfare-enhancing and aesthetic place of residence? And do all these sellers also not benefit from the experience of exercising and enhancing their professional skills? We know that very often people act on the basis of mixed motives, and these examples are all ones where the motivation of getting a fee comes together with human flourishing motivations.
Second, unlike contracts whose essence is exchange (the paradigm is contracts for the sale of market goods), the contracts discussed here are not zero-sum. The success of the patient is the success of the doctor, the success of the client is the success of the lawyer, etc. The parties do not divide a cake between them; they are working together for increasing the size of a shared cake.Footnote 15
Third, in contracts for the maximization of wealth, the values to which the parties are committed are irrelevant. The impersonality of market relations, i.e., the fact that the scope of what the parties need to reach agreement about is extremely narrow, is what enables the parties to create wealth-maximizing exchange transactions. As Elizabeth Anderson puts it, the impersonal norms governing market relations are the ones “suitable for regulating the interactions of strangers. Each party to a market transaction views his relation to the other as merely a means to the satisfaction of ends defined independent of the relationship and of the other party’s ends” (Anderson Reference Anderson1993, 145). It is the opposite with contracts aimed at human flourishing. The parties to such contracts are not “strangers,” and the basis of such contracts is the parties’ sharing of the same values (the importance of the patient’s health, the importance of the client’s legal rights, the welfare of the homebuyer, etc.).
We may think of the parties to such contracts as interested in defining and realizing their autonomy. However, the autonomy ideal is too general and too abstract for these contracts. We have to be specific and explicit in understanding that what the parties are really after when they enter such contracts is the enhancement of their human flourishing. This better understanding of these contracts may have far-reaching consequences in our interpretation of them and in our determination of the parties’ rights, duties, and remedies under them.
The Doctrine of Precontractual Misrepresentation by Nondisclosure
Under contract law, a party is sometime entitled to rescind her contract because of the failure of the other party to disclose to her, in the course of the contract-making process, a “material fact.” The question of when a party has a duty to disclose information is one of the most difficult questions in the law of contracts. However, one category of cases in which the courts impose such a duty is that of contracts for the sale of residential homes: the seller needs to disclose to the buyer material facts concerning the qualities of the home that may adversely affect the ability of the buyer to make use of it for normal residential purposes.Footnote 16 The reasoning that underlies this category of cases comes from Alexander’s discussion of the role of the home in the lives of persons: the home is a site for the realization of important flourishing-based interests, such as privacy, security, and associational autonomy, and the seller should know that these are the expectations of the buyer from the home she purchases. Therefore, the scope of the disclosure duty of the seller should be the scope of the purchaser’s expectation to flourish in their home. Again, we could have based this category of cases on the value of autonomy. However, autonomy is a value too general and too abstract in this context. We may gain better understanding of the buyer’s legitimate expectations of the home she purchases when we think about the home as a site of human flourishing.
Conclusion
Property and Human Flourishing makes three moves that run counter not only to mainstream American property theory, but also to some central tenets of American legal scholarship in general. First, whereas most American legal scholars self-evidently succumb to the discourse of rights, Alexander focuses on the obligations and responsibilities that property owners owe to the communities in which they are embedded. Second, the policy Alexander advocates is premised on the Aristotelian ideal of human flourishing. To the best of my knowledge, Alexander is the first American legal scholar to posit this ideal at the core of his theory; legal scholars in the United States usually endorse the ideals of autonomy and utility maximization. Third, in deviation from the atomist ontology assumed by most private law scholars and by many American legal scholars in general, Alexander’s departure point is a communitarian ontology. The result of these three moves is a thought-provoking and challenging work relevant not only in property theory but also in legal theory in general.
