Cambridge University Press

978-0-521-11365-6 - An Introduction to Property Theory

Gregory S. Alexander and Eduardo M. Peñalver
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An Introduction to Property Theory

This book surveys the leading modern theories of property – Lockean, libertarian,
­utilitarian/law-and-economics, personhood, Kantian, and human flourishing – and then
applies those theories to concrete contexts in which property issues have been espe-
cially controversial. These include redistribution, the right to exclude, regulatory tak-
ings, eminent domain, and intellectual property. The book highlights the Aristotelian
human flourishing theory of property, providing the most comprehensive and accessible
introduction to that theory to date. The book’s goal is neither to cover every conceivable
theory nor to discuss every possible facet of the theories covered. Instead, it aims to make
the major property theories comprehensible to beginners, without sacrificing accuracy
or sophistication. The book will be of particular interest to students seeking an accessible
introduction to contemporary theories of property, but even specialists will benefit from
the book’s lucid descriptions of contemporary debates.

Gregory S. Alexander is a nationally renowned expert in property and trusts and estates
and the A. Robert Noll Professor of Law at Cornell University. Following his gradua­
tion from Northwestern University School of Law, he clerked for the Honorable George
Edwards of the U.S. Court of Appeals for the Sixth Circuit. Alexander is the winner of
the American Publishers Association’s 1997 Best Book of the Year in Law award for his
work Commodity and Propriety. More recent books include The Global Debate over
Constitutional Property: Lessons for American Takings Jurisprudence and Property and
Community (with Eduardo M. Peñalver). He is co-author of the most widely used prop-
erty casebook in the United States (with James Krier and Michael Schill). His articles
have appeared in such journals as the Columbia Law Review, the Stanford Law Review,
the Michigan Law Review, and the Cornell Law Review.

Eduardo M. Peñalver is a professor of law at Cornell University. Upon graduating from

Yale Law School, he clerked for the Honorable Guido Calabresi of the U.S. Court of
Appeals for the Second Circuit and for Justice John Paul Stevens of the U.S. Supreme
Court. His research interests focus on property and land use, as well as law and reli-
gion. He is the author of numerous books and articles on property and land use law,
and his work has appeared in several leading law journals. His book Property Outlaws
(co-authored with Sonia Katyal) explores the role of disobedience in the evolution of
property law.

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978-0-521-11365-6 - An Introduction to Property Theory
Gregory S. Alexander and Eduardo M. Peñalver
Frontmatter
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Cambridge University Press
978-0-521-11365-6 - An Introduction to Property Theory
Gregory S. Alexander and Eduardo M. Peñalver
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CAMBRIDGE INTRODUCTIONS TO PHILOSOPHY AND LAW

Brian H. Bix
University of Minnesota
William A. Edmundson
Georgia State University

This introductory series of books provides concise studies of the philosophical foundations
of law, of perennial topics in the philosophy of law, and of important and opposing
schools of thought. The series is aimed principally at students in philosophy, law, and
political science.

Normative Jurisprudence: An Introduction, by Robin West

Objectivity and the Rule of Law, by Matthew Kramer
An Introduction to Rights, Second Edition, by William A. Edmundson
Demystifying Legal Reasoning, by Larry Alexander and Emily Sherwin
Crime and Culpability: A Theory of Criminal Law, by Larry Alexander,
Kimberly Kessler Ferzan, and Stephen J. Morse
Contract Law, by Brian H. Bix

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Cambridge University Press
978-0-521-11365-6 - An Introduction to Property Theory
Gregory S. Alexander and Eduardo M. Peñalver
Frontmatter
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© in this web service Cambridge University Press www.cambridge.org

Cambridge University Press
978-0-521-11365-6 - An Introduction to Property Theory
Gregory S. Alexander and Eduardo M. Peñalver
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An Introduction to Property Theory

Gregory S. Alexander
Cornell University, School of Law

Eduardo M. Peñalver
Cornell University, School of Law

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Cambridge University Press
978-0-521-11365-6 - An Introduction to Property Theory
Gregory S. Alexander and Eduardo M. Peñalver
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cambridge university press

Cambridge, New York, Melbourne, Madrid, Cape Town,
Singapore, São Paulo, Delhi, Mexico City

Cambridge University Press

32 Avenue of the Americas, New York, ny 10013-2473, usa
www.cambridge.org
Information on this title: www.cambridge.org/9780521130608

© Gregory S. Alexander and Eduardo M. Peñalver 2012

This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.

First published 2012

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication data

Alexander, Gregory S., 1948–
An Introduction to Property Theory / Gregory S. Alexander, Eduardo M. Peñalver.
pages cm. – (Cambridge introductions to philosophy and law)
Includes bibliographical references and index.
isbn 978-0-521-11365-6 (hardback) – isbn 978-0-521-13060-8 (paperback)
1. Property. 2. Property–Philosophy. 3. Right of property.
I. Peñalver, Eduardo Moisés, 1973– II. Title.
k720.a44 2012
346.04–dc23    2011049203

isbn 978-0-521-11365-6 Hardback

isbn 978-0-521-13060-8 Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external
or third-party Internet Web sites referred to in this publication and does not guarantee that any
content on such Web sites is, or will remain, accurate or appropriate.

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Cambridge University Press
978-0-521-11365-6 - An Introduction to Property Theory
Gregory S. Alexander and Eduardo M. Peñalver
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G.S.A. – To the memory of Robert D. Evans, Esq., mentor, confidant, friend.

E.M.P. – To Mami.

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Gregory S. Alexander and Eduardo M. Peñalver
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Contents

Preface page xi

Introduction 1

Part I

1. Utilitarian Property Theories 11

2. Locke and Libertarian Theories of Property 35

3. Hegelian Property Theory 57

4. Kantian Property Theory 70

5. Property and Human Flourishing 80

Part II

6. Government Redistribution of Resources 105

7. The Right to Exclude and Its Limits 130

8. Eminent Domain and Regulatory Takings 156

9. Intellectual Property 183

Conclusion 204

References 215
Index 227

ix

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Preface

Property theory has undergone something of a renaissance of interest within the

legal academy over the past several years. The field has become the site of major
disputes concerning both the conceptual nature of ownership and its normative
underpinnings. In part, this revival of interest reflects broader social, political, and
economic developments. These include controversies surrounding the govern-
ment’s use of its eminent domain power, debates over the state’s power to regulate
and tax owners, and the dramatic increase in the economic importance of intel-
lectual property assets. Within these arguments, people have (at times implicitly)
relied upon divergent understandings of the normative foundations and meanings
of ownership.
Property theory can be a daunting topic. For students encountering the subject
for the first time, the classic texts in the field are often incomprehensible and the
arguments inaccessibly abstract. A common reaction when students are introduced
to these sources during the first-year property course is, why bother? There is very
good reason to bother. Theory matters. At the base of every single property debate
are competing theories of property – different understandings of what private prop-
erty is, why we have it, and what its proper limitations are. In these disputes, theory
as such may not be explicitly articulated, but it is always near the foundation of the
disagreement.
Our aim in this book is to survey the leading theories of private property in
Western (primarily Anglo American) legal thought. Our goal in this respect is nei-
ther to cover every conceivable theory nor to discuss every facet of the theories we
do include. Instead, we hope to make the major property theories comprehensible,
without sacrificing accuracy or sophistication.
The book’s second goal is normative. Among the theories we survey is the human
flourishing theory, commonly associated with Aristotle. We believe that this theory,
whose counterpart in moral philosophy is enjoying a revival of interest, offers an
attractive alternative to the currently dominant legal property theory, utilitarianism,

xi

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xii Preface

and its cognate, law-and-economics. Our treatment of that theory in both Parts I
and II reflects this commitment. However, we have tried to avoid placing too heavy
a thumb on the scale, in the hope that readers who are not attracted to the human
flourishing theory but who wish to know something about it will find our treatment
of it appealing.
This book is a collaboration in more than one way. Not only is it a collaboration
between the two of us, but also with a number of individuals who have helped
us in various ways. First, our colleagues at Cornell Law School, where we first
aired ­several of these chapters, helped us in more than one way. To them we are
immensely grateful for their support and constructive criticism. We count ourselves
extremely fortunate to be members of a faculty that is at once intellectually demand-
ing of its members and genuinely collegial. We are particularly grateful to Oskar
Liivak for helpful comments on Chapter 9. Second, colleagues at other institutions
where we presented various chapters have improved our efforts, whatever the merits
of the final product. These institutions include the Fordham Law School, where we
discussed themes developed in the book at a conference on “The Social Function of
Property” (thanks to Professors Sheila Foster and Daniel Bonilla, the co-organizers).
We also presented chapters of the manuscript at the University of Cape Town (par-
ticular thanks to Professor Hanri Mostert for inviting us), the UCLA Law School,
the University of Michigan Law School, the University of Chicago Law School, and
finally, at the University of Stellenbosch in South Africa, where we spent two weeks
teaching a group of graduate law students in Professor Andre van der Walt’s seminar
on property theory. We are deeply grateful to Professor van der Walt for his kind
invitation and invaluable comments and to his wonderful students and colleagues,
particularly Sue-Mari Maass. We also owe a debt of gratitude to Stewart Schwab,
the Allan R. Tessler Dean of Cornell Law School. His support has come in mul-
tiple forms, including generous financial support and intellectual encouragement.
Finally, we happily acknowledge as collaborators our respective administrative assis-
tants, Lyndsey Clark and Allen Czelusniak, and the superb staff at Cornell Law
Library. We thank them all.

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