Properties of Community

Gregory S. Alexander, Eduardo M. Peñalve


The relationship between individuals and communities — all manner of communities, but especially the state — is a central preoccupation of property theory. Even though the relationship between individuals and community stands at the conceptual center of property theory, the theories of community underlying discussions of property are frequently left implicit. The dominant approaches to property in Anglophone scholarship, utilitarian and classical liberal theories, treat communities as agglomerations of individuals. Moreover, they eschew substantive accounts of justice, favoring what Charles Taylor has called "procedural" conceptions. In this Article, we offer an ontological conception of community that views the individual and community as mutually dependent. In contrast with the two competing theories we describe, we favor a substantive conception of justice built around the notion of human flourishing. Although we are reluctant to embrace any particular label for our view, it is broadly Aristotelian in its framework. Once we have sketched the outlines of our theory, we will describe how our ontological theory might operate, using State v. Shack and a prominent South African property case as our central examples.

Full Text: