Property and Community

by Alexander, Gregory S.; Penalver, Eduardo M.

• ISBN13: 9780195391572
• ISBN10: 0195391578
• Format: Hardcover
• Copyright: 2010-01-21
• Publisher: Oxford University Press

Summary

Property and Community fills a major gap in the legal literature on property and its relationship to community. The essays included differ from past discussions, including those provided by law-and-economics, by providing richer accounts of community. By and large, prior discussions by property theorists treat communities as agglomerations of individuals and eschew substantive accounts of justice, favoring what Charles Taylor has called "procedural" conceptions. These perspectives on ownership obscure the possibility that the "community" might have a moral status that differs from neighboring owners or from non-owning individuals. This book examines a variety of social practices that implicate community in its relationship to property. These practices range from more obvious property-based communities like Israeli kibbutzim to surprising examples such as queues. Aspects of law and community in relationship to legal and social institutions both inside and outside of the United States are discussed. Alexander and Penalver seek to mediate the distance between abstract theory and mundane features of daily life to provide a rich, textured treatment of the relationship between law and community. Instead of defining community in abstractly theoretical terms, they approach the subject through the lens of concrete institutions and social practices. In doing so, they not only enrich our empirical understanding of the relationship between property and community but also provide important insights into the concept of community itself.

Author Biography

Gregory Alexander, a nationally renowned expert in property law, has taught at Cornell Law School since 1985. Alexander has been a Fellow at the Center for Advanced Study in the Behavioral Science, in Palo Alto, California and at the Max-Planck-Institute for Comparative and International Law, in Hamburg and Heidelberg, Germany. Mr. Alexander is a prolific and recognized writer, the winner of the American Publishers Association's 1997 Best Book of the Year in Law award for his work, Commodity and Propriety. His most recent book is The Global Debate Over Constitutional Property: Lessons for American Takings Jurisprudence.
Eduardo Penalver joined the Cornell faculty in 2006 after teaching from 2003-05 at Fordham Law School and spending 2005-06 as a visiting professor at Yale Law School. Professor Penalver received his B.A. from Cornell University and his law degree from Yale Law School. He was a Rhodes Scholar at Oxford and a law clerk for Supreme Court Justice John Paul Stevens. His research interests focus on property and land use, as well as law and religion. He is particularly interested in the ways property both fosters and reflects communal bonds.

Table of Contents

Acknowledgments	p. xi
Contributors	p. xii
Introduction	p. xvii
The Objects of Virtue	p. 1
Introduction	p. 1
Aristotle on "Private in Possession, Common in Use"	p. 5
Property in the Politics	p. 8
Property in Ethics	p. 15
Conclusion on Aristotle	p. 21
Aquinas on Private Property	p. 22
Thomas Aquinas on Property and Its Purposes	p. 24
Conclusion on Aquinas	p. 33
Back to the Future	p. 34
Reimagining Takings Law	p. 39
Introduction	p. 39
Avoiding the Extremes	p. 40
Against Strict Full Compensation	p. 40
Against No (or Almost No) Compensation	p. 43
Rethinking Takings	p. 47
Foundations	p. 48
The Nature of the Resource	p. 49
The Social Context	p. 50
Technique	p. 51
Concluding Remarks	p. 55
How Property Norms Construct the Externalities of Ownership	p. 57
Introduction	p. 57
Externalities, Harms, and Norms	p. 61
A Brief Intellectual History of Externalities	p. 66
How Norms Construct Ownership	p. 70
How Norms Construct Externalities	p. 74
Conclusions	p. 78
Property and Marginality	p. 81
Introduction	p. 81
Holmes and Decentering in Legal Thinking	p. 85
Noticing the Margins	p. 91
Exploring the Margins	p. 97
Conclusions	p. 100
Facts on the Ground	p. 107
Commons and Legality	p. 141
Introduction	p. 141
Contextualizing the Commons	p. 142
The Turn Towards Contextualization in Commons' Analysis	p. 142
The Economically-Oriented Perspective	p. 142
The Institutional Economic Approach	p. 144
A Dynamic Contextualized Analysis of Commons	p. 146
Commons and Legality	p. 149
Legality and the Theory of Commons	p. 149
Imposition of Law	p. 150
The Autonomy of the Commons	p. 152
Commons and Legal Environments	p. 153
The Dynamic Analysis of Legality and Commons	p. 154
Legality in the Kibbutz	p. 157
Looking at the Past	p. 158
Looking at the Present	p. 161
Conclusions	p. 163
Property in a Queue	p. 165
Introduction	p. 165
The Queue as a Medium of Power and Control	p. 166
The Normative Merits of the Queue	p. 168
The Basic Principles of the Queue	p. 169
Time and the Normative Code of the Queue	p. 170
Proprietary Connotations of the Queue	p. 172
Priority of Arrival	p. 173
Persistence of Presence	p. 174
The Property of the Queuer	p. 175
Semantic and Cultural Connotations of the Queue	p. 176
Proprietary Behavior within the Queue	p. 179
Reserving Places	p. 180
Trading Places	p. 181
Taking Places	p. 185
Conclusions	p. 188
Index	p. 197
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