Virtue and Rights in American Property Law

Abstract

This paper contributes to a forthcoming theme issue on property and virtue theory. It is written as a response to "The Social-Obligation Norm in American Property Law," by Gregory Alexander, and "Land Virtues," by Eduardo Penalver.

The paper makes two claims of broader interest. First, contemporary virtue theory deserves respectful attention in property scholarship, not least because it shows the way for philosophical legal scholarship to avoid many standard criticisms of practical philosophy associated with Kantian deontological theories of morality. The paper describes a loose collection of "virtue-friendly" theories, which, from different metaethics, all stress greatly the importance of virtues and happiness in accounts of good ethical or political choices. Virtue-friendly theories anticipate and avoid many of the challenges that Kantian deontological accounts get from standard utilitarian accounts.

Second, the paper critiques an important claim made in both lead articles - that it is appropriate, in a significant range of cases, to use specific conceptions of virtue or flourishing as rules of decision in property law. This paper recounts why virtue theory can backfire when applied as directly to law and politics as it is in ethics. The term "virtue" automatically suggests that there exists a hierarchy of different forms of human excellence. But since most citizens are bad judges of the highest virtues, in practice virtue politics often end up fomenting civil strife. They encourage religious, ethnic, or ideological factions to use virtue rhetorical to acquire hegemonic status over and to subordinate other competing factions. These reasons explain why Enlightenment political philosophers who prized virtue and happiness philosophically still sought to displace classical and medieval virtue political theory. They sought to replace virtue political theory with liberalism - the political order in which the government admits it is competent to secure preservation but not to settle questions about virtue. They also sought to establish "property" as a dominant metaphor in and a substitute for "virtue" in politics.

Keywords: adverse possession, Aristotle, consequentialism, deontology, ethics, eudaimonism, Glaucon, Hume, Locke, nuisance, philosopher-king, Plato, property, Socrates, State v. Shack, trespass, utilitarianism