WHEATON COLLEGE GRADUATE SCHOOL
The Land is Mine:
A Theological Approach to
Property Rights and Development
A Thesis Submitted To The Faculty Of The Graduate School in Partial
Fulfillment Of The Requirements For The Degree Of Master Of Arts
Department of Biblical and Theological Studies
by
Ryan Juskus
Wheaton, IL
May 2013
ii
The Land is Mine:
A Theological Approach to
Property Rights and Development
by
Ryan Juskus
Approved:
________________________________
Dr. Jeffrey W. Barbeau, First Reader
_______________________
Date
________________________________
Dr. Sandra F. Joireman, Second Reader
_______________________
Date
iii
Disclaimer
The views expressed in this thesis are those of the student and do not
necessarily express the views of the Wheaton College Graduate School.
iv
WHEATON COLLEGE
Wheaton, Illinois
Date _______________ 2013
The Land is Mine:
A Theological Approach to
Property Rights and Development
Wheaton College
Department of Biblical and Theological Studies
Master of Arts Degree
Permission is herewith granted to Wheaton College to make copies of the above title, at
its discretion, upon the request of individuals or institutions at their expense.
____________________________
Signature of Author
Extensive quotation or further reproduction of this material by persons or agencies other
than Wheaton College may not be made without the expressed permission of the writer.
v
For my wife, Kendra, and my son, Langdon,
who have both inspired and supported me
since our first hours together.
vi
Abstract
Global trends in urbanization, population growth, and consumption have put acute
pressures on land, resulting in land-related challenges that directly impact the wellbeing
of poor and vulnerable communities in the United States and across the globe. The
institution of property, by allocating power among a society, produces and reproduces a
pattern of relations among landholders, other human beings, and the non-human world in
accordance with a normative idea of what ought to characterize social, ecological, and
psychological relations. In this thesis, I evaluate a number of contemporary theories of
property through the lens of the theological virtues of faith, hope, and love, which I
contend are central to a theocentric understanding of human flourishing. I argue that the
dominant, individual interest-based theories of property are inadequate to advance human
flourishing based on this criteria. I construct a theocentric stewardship theory of property
that is guided by the narrative of God-human relations rendered by Christian Scripture
and theology and oriented toward God’s will to make human beings fully alive. A
stewardship theory that integrates the theological virtues of faith, hope, and love includes
the flourishing of the poor and vulnerable within the idea of property and reorients
property institutions to their benefit. The thesis concludes with an application of this
theory in critique of two property rights programs that aim to alleviate poverty and
injustice in the United States and in the developing world.
vii
Table of Contents
Introduction
1
Chapter 1:
Foundations for a Moral Theory of Property
16
Chapter 2:
Contemporary Property Theories
42
Chapter 3:
Property and Human Flourishing
78
Conclusion:
Property Rights and Development
in Theocentric Perspective
Bibliography
127
142
viii
Introduction
“Gloria Dei vivens homo”
Irenaeus of Lyon1
Property is a defining feature of modernity and an essential element of modern
social relations, determining the lines along which power falls. But modern approaches to
property that confer rights in a pattern that privileges individual interests above common
goals have failed to resolve contemporary challenges of poverty and injustice. Christian
theology can help re-envision property as stewardship: an instrument for human
flourishing, understood theologically as being “fully alive” in relation to God and all else.
In the pursuit of justice and development, then, an understanding of property must
include within its scope and purpose the substantive and common good of all human
beings’ flourishing, elevating this common good above individual interests. As a
theological framework for evaluating and reforming property arrangements in the world
today, a theocentric stewardship approach to property gives special attention to the
flourishing of the most vulnerable and poor on the margins of society. I argue in this
thesis that a property theory of theocentric stewardship ought to borrow from
1
Irenaeus of Lyon, Against Heresies, 4.20.7, quoted and translated by David Kelsey as “The glory
of God is human beings made fully alive,” in “On Human Flourishing: A Theocentric Perspective” (paper,
Yale Center for Faith and Culture, Yale Divinity School, New Haven, CT, May 23-24, 2008), 1-2.
1
contemporary proprietary wisdom and theologically reorient property’s purpose and
function in light of God’s will to make human beings fully alive.
Notions of property depend on conceptions of legal rights and human needs. In
his short story “How Much Land Does a Man Need?,”2 Leo Tolstoy explores the tension
between human interests and human needs as they relate to land rights. How much land
and what set of property rights are sufficient for human needs? Where is the line between
need and greed? What might result from a property system motivated by appetite rather
than need?
The protagonist of Tolstoy’s story is Pahom, a peasant with an unquenchable
desire for more: more land security, more land to own, more ownership rights, and better
fertility. One day he thinks, “If I had plenty of land, I shouldn’t fear the Devil himself!”
To which the Devil, overhearing Pahom’s boasting, responds with a plan: “I’ll give you
land enough; and by means of that land I will get you into my power” (266). A short time
later, Pahom purchases property in two different communes. Dissatisfied with the
constraints and frustrations of owning land within a system of communally shared
property rights, Pahom journeys across the country to enter into an arrangement whereby
he can purchase secure, private title to land from a tribal chief. That chief makes the
following bargain with Pahom: “As much as you can go round on your feet in a day is
yours, and the price is one thousand roubles a day . . . . But there is one condition: If you
don’t return on the same day to the spot whence you started, your money is lost” (276).
The next day Pahom attempts to cover as much territory as he can before the sun
goes down, only to discover late in the day that his appetite for land exceeds his physical
2
Leo Tolstoy, “How Much Land Does a Man Need?,” in Walk in the Light and Twenty-Three
Tales, trans. Louise and Aylmer Maude (Farmington, PA: The Plough Publishing House, 1998), 265-282.
Citations in the text.
2
capacities. Exhausted, parched, weak, and full of fear as he struggles to return to his
starting point by sunset, Pahom exclaims, “There is plenty of land . . . but will God let me
live on it? I have lost my life, I have lost my life!” (281). With a final burst of energy he
reaches the spot just as the sun sets and his legs give way. “He has gained much land!”
exclaims the chief (282). But going to help him up Pahom’s servant finds him dead. The
servant digs him a grave to lie in: “Six feet from his head to his heels was all he needed”
(282).
The backdrop of Pahom’s ill-fated journey is rural community life. It was
sufficient to meet his needs, but it never satisfied his appetite for independence from the
constraints of living in community. The consequence of following his unquenchable,
disordered desire for more land, security, fertility, and ownership rights was his selfdestruction. Tolstoy’s story exemplifies how property lies at a critical intersection:
between individuals and communities, between need and greed, and between human
desires and their consequences.
“Property stands so squarely at the intersection between the individual and
community because systems of property are always the creation of some community.”3
Property is a socio-legal construct that functions to distribute powers (rights) among
society in relation to land, and in so doing, creates a pattern of social and ecological
relations both to and through the land. Because it deals with power and its social
distribution, property can be used to satisfy human desires—interests, preferences—
rather than human needs and the requirements of human dignity. Those desires are, in a
theological sense, disordered (meaning, in the Augustinian tradition, that human loves are
3
Gregory Alexander and Eduardo Peñalver, “Properties of Community,” Cornell Law Faculty
Publications 81 (2009): 128, http://scholarship.law.cornell.edu/lsrp_papers/81
3
misdirected away from God, their proper object) and distorted as a consequence of
human sin.4 As with Tolstoy’s Pahom, there may be unintended consequences of trusting
human desires to properly guide individuals toward a good and full life. Pursuing
individual interests, to the neglect of a substantive and common good, may instead lead to
destruction.
The view, integral to interest-based property theories, that a free market
transforms self-interest into a common good of mutual benefit is a false myth.5 A
common good will not result from each person pursuing self-interest. Property systems
that privilege individual interests over a substantive and common good must confront the
reality that individual preferences are not a sufficient compass for either a full life or a
good society. Interest-based property systems lack resources to balance the consequences
of individual interest-seeking against a normative vision of moral and social relations.
Property’s morality lies in how people use it to distribute power, to pattern social
relations, and to value and hold land in conformity with a normative vision. The
dominant normative vision behind interest-based property systems has led to a pattern of
using property to empower owners, to establish a commercial form of social relations, to
value land as a commodity of exchange, and to hold land as a private possession. Its
scope and its applicability to diverse cultural contexts are limited.
4
Augustine, On Christian Doctrine, trans. D. W. Robertson, Jr. (New York: Bobbs-Merrill Co.,
1958), 1.26.27-1.29.30 [22-25]. James K.A. Smith articulates an Augustinian anthropology of “desiring
animals” in conversation with phenomenology in Desiring the Kingdom: Worship, Worldview, and
Cultural Formation (Grand Rapids: Baker Academic, 2009), 46-63. Following Smith, I make no
substantive distinction between love and desire when referring to that toward which human affections are
ultimately aimed. I also refer to interests and preferences as penultimate desires shaped by an individual’s
ultimate desire.
5
See, for instance, Jedediah Purdy, The Meaning of Property: Freedom, Community, and the
Legal Imagination (New Haven: Yale University Press, 2010); and Deirdre McCloskey, “Avarice,
Prudence, and the Bourgeois Virtues,” in Having: Property and Possession in Religious and Social Life,
eds. William Schweiker and Charles Mathewes (Grand Rapids: William B. Eerdmans, 2004).
4
The consequences of interest-based property systems cast a shadow over their
ability to alleviate poverty and counter injustice. There is evidence to suggest that they
could be part of the problem. One recent example is called “land grabbing.” The
International Land Coalition (ILC), in their report “Land Rights and the Rush for Land,”
found that between 2000 and 2010 wealthy nations have “grabbed” 203 million hectares
(over eight times the size of the United Kingdom) of some of the best land available to
secure access to food, biofuels, and resources for extraction. Africa is the prime target,
with Asia not far behind.6
The ILC study finds that this global land rush, driven by a combination of
“population growth and growing consumption by a global minority,” negatively and
disproportionately impacts the poor and vulnerable through dispossession, a lack of
compensation, loss of commonly held lands, gender discrimination, and ecological
degradation.7 The rural poor are being dispossessed, as in the case of Ethiopia, where
300,000 hectares of land that had comprised grazing lands for local pastoralists were
leased to one Indian investor.8 Due to the inability to feed livestock on common grazing
land, the pastoralists experienced a sudden 20–35% fall in the price of livestock, and not
one of them was compensated.9 Many groups are also losing rights to their communal
lands, as in the case of Peru, where, of the 75 million hectares that make up the Peruvian
Amazon region, 53 million hectares are covered by oil and mining exploration
concessions to foreign companies. Most of these are areas for which indigenous
6
Ward Anseeuw, Liz Alden Wily, Lorenzo Cotula, and Michael Taylor, “Land Rights and the
Rush for Land: Findings of the Global Commercial Pressures on Land Research Project,” The International
Land Coalition, 2012, 4-5.
7
Ibid.
8
Ibid., 35.
9
Ibid., 41.
5
communities already possess land title.10 The lack of compensation for land grabs is
made even worse by the fact that jobs, often promoted as an incentive for communities to
hand over land, either are not created or do not last more than just a few years. What is
more, many of these “jobs” turn into forced labor, as in the case of oil palm schemes that
hold laborers in bondage through unpayable debts to oil palm companies.11
Among those groups negatively impacted, women across the globe are
disproportionately vulnerable due to four factors: systematic discrimination from
property rights, a lack of political voice, relative income poverty vis-à-vis men, and
physical vulnerability that puts them at risk of violence.12 In addition to these social
impacts, land grabbing has resulted in a permanent loss of biodiversity and destruction of
ecosystems, as in the case of Indonesian Borneo, which lost 1.871 million hectares of
forest every year between 2000 and 2005 to logging and oil palm plantations.13 On the
impact of land grabbing the ILC study concludes that “the allocation of large land areas
to outside investors can always be assumed to mean the dispossession of local land users,
and their exclusion from resources that are critically important to their livelihoods.”14
Part of the challenge, according to the ILC report, “is to stop dispossession and
land allocations that do not serve a genuine public interest.”15 Otherwise stated, when it
has not been counterbalanced by a pursuit of common good, property that serves
individual interests—for security, access to resources, and consumption—has led to
dispossession of the poor, indigenous marginalization, further gender discrimination, and
10
Ibid., 36. See also “Americas: Governments Prioritize Profits Over Indigenous Peoples’ Rights,”
Amnesty International, August 8, 2012, http://www.amnesty.org/en/news/americas-governments-prioritizeprofit-over-indigenous-peoples-rights-2012-08-08
11
Anseeuw, et al., “Land Rights,” 42.
12
Ibid., 44.
13
Ibid., 45.
14
Ibid., 46.
15
Ibid., 3 (emphasis mine).
6
ecological degradation. While land grabbing is not the focus of this thesis, it is one
symptom of what I argue is a more basic problem that affects both wealthy and
developing countries. What perhaps most sets neo-colonial land grabbing apart from its
colonial predecessor, which was justified by the British as a civilizing mission, is that this
neo-colonialism is justified as an economic mission: land grabs increase economic
development and create jobs.16 The ILC report provides empirical data to expose this
economic mission as a false myth. Interest-seeking does not result in common good.
Whether in wealthy or developing countries, systems of property that privilege interestseeking behavior are not a solution to poverty and injustice; they are part of the problem.
Two development campaigns specifically seek to leverage property to combat
poverty by including populations that have largely been excluded from the benefits of
owning or controlling land. One is the formalization campaign in international
development. Formalization aims to bring the world’s increasingly large, poor, and
informal class into the economic mainstream by legally representing their property in title
so that it can be used to generate capital (and wealth). The second is shared equity
homeownership in American affordable housing and community development. Shared
equity is a restructuring of property rights that, by creating alternatives to the rentalownership binary, seeks to provide low-income households with benefits traditionally
associated with homeownership. It limits property ownership rights—that is, it shares
rights between owners and the community—in order to achieve housing affordability.
Both formalization and shared equity homeownership aim to include populations
that have been excluded from modern economic growth that stems, in large part, from
16
Lorenzo Cotula, “Analysis: Land Grab or Development Opportunity?,” BBC News, February 21,
2012, http://www.bbc.co.uk/news/world-africa-17099348
7
one’s access to property rights. In order to assess whether these campaigns use property
to promote the common good of human flourishing, I devote the bulk of this thesis to
evaluating common theories of property more generally and, in conversation with them,
developing a theocentric stewardship theory. Property scholar David Lametti asks, “To
what do we aspire with respect to our relationship with resources?”17 A theocentric
stewardship theory of property aspires to human flourishing, theocentrically construed.
In this thesis, I bring together Christian theology and property theory with the
hope of navigating the moral, social, and political challenges implicated by property. If
property functions to distribute power and to reflect a pattern of social relationships, then
navigating these challenges requires looking beyond property law to other disciplines for
guidance. As property scholar Jedediah Purdy says, property depends on a social vision
and “legal imagination,” an “image of common life in which the law is set,” that is
endogenous to the institution itself.18 A legal imagination shows how property rules
cohere with a larger social vision of how people ought to relate in a society. Property
scholars Gregory Alexander and Eduardo Peñalver add that “discussions of property
rights, from whatever perspective, necessarily reflect ideas about the proper domain and
limits of individual and community power.”19 The allocation of property rights within a
community are always navigated with reference—often implicit—to a larger moral and
social vision, a legal imagination within which they cohere.
I associate property theory with confessional Christian theology for two reasons.
First, secular reasoning is increasingly out of step with the religious makeup of those
17
David Lametti, “The Objects of Virtue,” in Property and Community, eds. Gregory S.
Alexander and Eduardo M. Peñalver (Oxford: Oxford University Press, 2010), 3.
18
Purdy, The Meaning of Property, 5.
19
Alexander and Peñalver, “Properties,” 128.
8
communities negatively impacted by changing property regimes.20 Christianity in
particular is increasingly centered in the developing world.21 Therefore, purely secular
accounts of property are bound to fail if they ignore the religious and cultural contexts in
which they are being implemented. The second reason comes from property theorist
Joseph William Singer, who writes, “By looking at religious traditions, we may deepen
our engagement with [the full range of our] values and find some inspiration on how to
negotiate tensions we face between the pursuit of profit and the pursuit of humanity.”22 In
short, confessional religious traditions offer resources for human flourishing more
broadly. I use “theocentric” language for two purposes: first, the ecumenical goal to
frame a stewardship theory that is applicable to multiple religious contexts; and second,
the confessional goal to signify the Trinitarian character of a uniquely Christian
approach.
The scope of this thesis is limited by the fact that property is an expansive area of
inquiry that touches on many moral and theological questions. I will not address a
number of questions that would be necessary for a comprehensive theory of property. For
example, this thesis is not an evaluation of forms of property: whether or not a private,
common, or public property system is most consistent with Christian theology.23 Neither
is this a study of a human right to property: whether or not property ought to be owned
20
See Peter L. Berger, ed., The Desecularization of the World: Resurgent Religion and World
Politics (Grand Rapids: W.B. Eerdmans, 1999).
21
See Philip Jenkins, The Next Christendom: The Coming of Global Christianity (New York:
Oxford University Press, 2002).
22
Joseph William Singer, The Edges of the Field: Lessons on the Obligations of Ownership
(Boston: Beacon Press, 2000), 41-42.
23
For an example of a well-argued theological defense of private property in the Catholic
tradition, see Paul Babie, “Two Voices of the Morality of Private Property,” Journal of Law and Religion
23, no. 1 (2007-2008): 271-308, http://www.jstor.org/stable/27639089; for an example of a theological
argument against private property in the Reformed tradition, see Ulrich Duchrow and Franz J.
Hinkelammert, Property for People Not for Profit: Alternatives to the Global Tyranny of Capital (London:
Zed, 2004).
9
by a few, by many, or by all human beings.24 This project also sets aside the complex
issue of the ownership of material things in a general way, in the sense that ownership
becomes a concept that must carry the weight of something as small as a pencil, as
abstract as intellectual creativity, as unwieldy as oxygen, or as large as the Pacific
Ocean.25 Lastly, it is also not a thesis about the biblical origin narrative of property:
whether there is in Scripture a narrative of how property first came about or how private
property emerged from some state of common property.26 Instead, a property theory of
theocentric stewardship ought to function as a foundation for addressing and clarifying
these related inquiries within Christian theology and praxis.
I develop a theocentric stewardship theory of property that is not tied to any one
model of property, but rather acts as a framework, or a measuring stick, for evaluating
and reforming property regimes. The danger in proposing one model of property is that
property is a fluid and evolving institution that changes along with a society’s values,
narratives, and moral vision. Therefore, a stewardship theory ought to be broad enough to
be applicable to a diversity of religious, cultural, and political contexts. A key contention
in this thesis is that all landowners are actually stewards of a particular moral and social
vision whether or not they acknowledge and articulate this vision, or whether it is so
deeply embedded in cultural practices as to remain unarticulated. If, at the level of vision
24
See “The Universal Declaration of Human Rights,” Article 17 (United Nations, 1948),
https://www.un.org/en/documents/udhr/. For a critical view of property as a human right, see C. René
Padilla, “La Biblia y los Derechos Humanos,” in Los Derechos Humanos y el Reino de Dios, 2nd ed. (Lima,
Peru: Ediciones Puma, 2010), 15-28.
25
Treating ownership in this general way overlooks the differences between these diverse objects
of value, including how they are uniquely treated and valued in common social and legal practice. See
Lametti, “Objects”; or Eduardo Peñalver, “Land Virtues”; Cornell Law Review 94, no. 4 (2009): 821-888.
For general treatments of ownership from a theological perspective, see Craig Blomberg, Neither Poverty
Nor Riches: A Biblical Theology of Possessions (Grand Rapids: W.B. Eerdmans, 1999).
26
See Peter Garnsey, Thinking About Property: From Antiquity to the Age of Revolution (New
York: Cambridge University Press, 2007).
10
and imagination, all landownership is stewardship, then theocentric stewardship is a
subset of stewardship theory in general.
Not only is all landownership more accurately understood as stewardship of a
moral and social vision, but all existing property practices fall short of some ideal of
absolute control over property. They all involve some level of tenancy or responsibility to
others. For example, a large portion of “homeownership” in the United States is made
possible through the legal instrument called a mortgage, which is not a form of absolute
ownership, but rather a combination of the economic function of tenancy and the
ideological function of ownership.27 An absolute ideal of “full-blooded ownership,” in
which an owner has total rights of exclusion, use, and disposal, “exists only as a
theoretical construct.”28 For this reason, it is futile to argue against absolute private
property or any other absolute form of ownership.29 To do so is to critique a fictive
category that exists only as an ideal.30 Until recently, the idea of full ownership was
conditioned in property law “by an overarching set of ethical imperatives emanating from
the Judaeo-Christian ethos dominating the Western world.”31 Thus if, in practice, all
property rights come with responsibilities, then all landowners are actually stewards.
Landholders’ rights have always been conditioned by a larger moral imagination
that sets the contours of a landholder’s responsibilities. In this way, it is not a question of
whether stewardship is preferable to ownership. Rather, if all landownership is a version
27
William Lucy and Catherine Mitchell, “Replacing Private Property: The Case for Stewardship,”
The Cambridge Law Journal 55, no. 3 (November 1966): 573, http://www.jstor.org/stable/4508253
28
David Lametti, “The Concept of Property: Relations Through Objects of Social Wealth,” The
University of Toronto Law Journal 53, no. 4 (Autumn 2003): 364, http://www.jstor.org/stable/3650892
29
Singer, Edges, 88.
30
For instance, even a monarch who claims absolute rights over his territory is limited by the everpresent possibility of losing his land to a competing power. Thus even the monarch’s property rights come
with the responsibility to create a political environment in which he can raise an army and defend his
territory from competing powers.
31
Ibid.
11
of stewardship—all property systems function to create or reproduce a particular pattern
of social, psychological, ecological, and theological relations—the appropriate question is
which social vision and which pattern of relations ought a property system create and
steward? I evaluate these patterns in light of the vision of shalom, a vision in which
God’s creation flourishes when human beings enjoy right relating with God, themselves,
others, and the rest of creation.
Property scholar Joseph William Singer declares that “property is an intensely
social institution.”32 I widen Singer’s thesis to argue that property is intensely relational.
Property sits at the intersection of a set of moral relations of which social relations are but
one part. Through the property construct, society produces and reproduces a pattern of
relationships between landholders and their neighbors, themselves, and their natural
environments. I refer to this set of relations as “property relations.” Because property
implicates one’s stance toward these moral relations, it also implicates a landholder’s
relation to God, as well. In this way, property is a relational institution that is, at the same
time, social, ecological, psychological, and theological. Or, more precisely, property is a
social institution that coheres with a legal imagination of how property ought to pattern
these property relations. A stewardship theory is theocentric insofar as the theological
angle of property normatively sets the other property relations in perspective. A
theocentric stewardship theory turns on the God-relation: how God relates to creation and
how creatures are to relate responsively to God. However, theocentric stewardship does
not exist in isolation from contemporary property theory. Rather, it should be developed
dialogically by reorienting contemporary proprietary wisdom along the theological angle
of property relations.
32
Singer, Edges, 3.
12
For Christians, the God-relation is the point of departure for thinking about
property because the same is also true for thinking about human flourishing, of being
fully alive to God in faith, hope, and love. A society’s usage of the property construct,
and therefore their pattern of property relations, can be taken as a sort of gauge that
measures their relating well (or failing to relate well) to God in faith, hope, and love.
Property as a measuring gauge was as true of Old Testament Israel as it is today.33 Since
property functions as a mediator of property relations, property is a sphere in which the
drama of being fully alive to God in faith, hope, and love takes shape in practices that
reflect faith, hope, and love to one’s neighbors and the rest of creation.
In the first chapter, I define a number of key terms and concepts. Among these are
property, property theory, and what I call a moral imagination. A moral imagination is an
expansion of Purdy’s “legal imagination”—a vision of common life in which property
law is set—to refer to a vision of cosmic life, or a worldview, in which property is set. I
use the American civil rights movement as an example of the interplay between property,
property theory, and moral imagination. During this time of great social change,
Americans negotiated race relations in large part through property laws and practices.
This chapter concludes with an outline of the formalization and shared equity campaigns,
highlighting the moral and theological questions that each implicates.
In the second chapter, I categorize and critique a number of contemporary
property theories. I provide a brief analysis of utilitarian, libertarian, identity formation,
humanitarian, and ecological theories of property in relation to Christian faith, hope, and
love. This analysis draws out the underlying value structure of each theory, as well as
33
Christopher J. H. Wright, Old Testament Ethics for the People of God (Downers Grove:
InterVarsity Press, 2004), 96.
13
their moral and social visions. Because I propose theocentric stewardship as a framework
for building upon and reforming contemporary proprietary wisdom, rather than replacing
it, I argue that a theory of theocentric stewardship shares the most conceptual space with
the ecological and humanitarian theories of property. They are both types of stewardship
theory, meaning that in addition to relations among persons and land, they include within
the property idea and institution relations to future generations, the socio-economically
vulnerable or marginalized, and the non-human creation. By expanding the moral
imagination to include these actors within property itself, they counterbalance the
dominant, interest-based economic and libertarian theories.
I devote the third chapter to a theocentric stewardship theory of property
constructed around theological understandings of human flourishing and stewardship,
which also implicates the idea of justice. A theocentric stewardship theory of property is
oriented toward human flourishing, theologically construed as being “fully alive” to God
(and others) in a triadic schema of faith, hope, and love. I begin the chapter with an
overview and analysis of the theory of property as human flourishing (PHF), a
contemporary approach that channels property’s purpose and functioning through a
matrix of virtue ethics. The “Statement of Progressive Property” is PHF theorists’
practical proposal for reforming property to be an instrument of human flourishing. As a
well-developed type of humanitarian stewardship theory, PHF provides the most
comprehensive moral approach to property in conversation with which I develop
theocentric stewardship. Where PHF falls short of a theological account is in its
dependence on Aristotelian virtue ethics. A theocentric stewardship model, in contrast,
orients property relations around the God-relation, which includes virtue and a robust
14
account of the link between justice and flourishing. The narrative in which theocentric
stewardship derives its telos is the narrative of theological-psychological-socialecological relations created by God, broken by human sin, reconciled in Christ, and
destined for shalom. This narrative forms a Christian moral imagination sufficient for a
theocentric theory of property.
Finally, in the concluding chapter, I return to the formalization and shared equity
homeownership property programs to critique them in light of a theocentric stewardship
theory of property directed at human flourishing, theologically construed. I also suggest
ways that theocentric stewardship could interact with non-dominant worldviews currently
gaining the attention of development theorists for their capacity to counterbalance
individualistic values.
15
Chapter 1: Foundations for a Moral Theory of
Property
In this first chapter, I define a number of key terms that are integral for
understanding a theocentric stewardship theory of property and its relation to human
flourishing. Because understandings of property and ownership can be easily confused or
erroneously equated, I distinguish the idea and institution of property from commonly
held ideas of ownership. Property is about much more than an owner’s rights; it includes,
among other things, responsibilities, the distribution of power in a society, and a set of
valued objects and social actors of which an owner is but one part. Property is not about
general binaries—private-public, ownership-rental, formal-informal. Rather, it is an
expansive realm of actors and relations, and an institution that functions to establish and
reflect a pattern of property relations. Therefore, I use a definition of property that is not
ontological, but functional. Property functions in particular ways by virtue of how
individuals and communities use it to mediate property relations.
The concern of property theory is how property functions instrumentally to
achieve some larger purpose(s). A focus on property’s use and purpose in a given society
serves to demonstrate that all property use is stewardship of a larger moral and social
16
vision. This larger vision of how people ought to relate to each other and with their
natural surroundings is the moral imagination with which property rules and customs
cohere and by which they acquire meaning in a society. The causes of property-related
disputes, as in the dispute over land grabbing, can be traced not only to property laws but
also to conflicting moral imaginations. The contemporary era of property rights in flux is,
in part, the result of conflict and negotiation between different moral and social visions.
In this way, property, property theory, and moral imagination are intertwined.
FUNCTIONAL PROPERTY
For the purposes of this thesis, the key idea behind property is its function: how
property is used in social practice. Property is a social construct that functions to allocate
rights to material resources, particularly scarce and valued resources.1 Hence the old way
of speaking of, for instance, “property in land.” One can also refer to “property relations,”
indicating that property functions to create or maintain a set of relations—between
owners, non-owners, land, or other objects—based on how a society allocates powers, or
rights, among the parties. In this way, property plays an allocative role with respect to
certain rights, or powers, over things. Allocation is the process of “determining
peacefully and reasonably predictably who is to have access to which resources for what
purposes and when.”2 In this way, private property is a subset, like communal or
collective property, of property in general. Distinctly private property provides a set of
“rules governing access to and control of material resources” that are “organized around
the idea that resources are on the whole separate objects each assigned and therefore
1
Gregory S. Alexander and Eduardo M. Peñalver, An Introduction to Property Theory, Cambridge
Introductions to Philosophy and Law (New York: Cambridge University Press, 2012), 6-7.
2
Jeremy Waldron, The Right to Private Property (Oxford, UK: Clarendon Press, 1988), 34-5.
17
belonging to some particular individual” or entity.3 Private property requires separability,
the process of determining where one thing ends and another begins. For this reason,
private property depends on the capacity to demarcate the boundaries of things before
rights over those things can be assigned to individuals or entities.
In addition to its allocative function, property also functions to mediate property
relations. For instance, because all forms of property are about allocating rights, property
involves owners and non-owners, rights and duties, individuals and communities, people
and things. “The tensions that inform property are the tensions inherent in social
relationships,” says Singer. “[Property] is about creating the ground rules for fair social
relationships.”4 By mediating property relations, the institution of property sets a pattern
of navigating social tensions. Any right that is allocated to an owner, for instance,
depends on all non-owners recognizing that right and their corresponding duty to respect
that right. Thus any right allocated to an owner simultaneously limits the rights of nonowners to the thing in question, and vice versa: rights assigned to non-owners limit the
rights of owners. Communities create and order these rights through law or other social
mechanisms, like culture and customary practice.5 It is important to recognize that
property is not strictly or even primarily negotiated through law. Most property practices
are communally regulated, unwritten products of culture.
Property laws emerge when socio-cultural, property-related values conflict, when
the tensions inherent in social relationships become conflicts. This is why Singer calls
3
Ibid.
Singer, Edges, 91.
5
Take, for instance, the line at the counter of a local coffee shop. This is an example of a
culturally enforced system of property rights. When one takes a position in line to order coffee, she
generally stands behind the person who arrived before her, expecting that one who arrives after her will
claim the spot behind her. Those who transgress this customary property right are likely to be corrected or
shamed. While this “rule” may not be written in legal code, it does not mean that it will not be efficiently
enforced! This is the idea behind cultural property systems.
4
18
property “an intensely social institution.”6 Laws function to resolve property practices
that become conflictual. Further clarifying this, Alexander and Peñalver add that
“systems of property are always the creation of some community.”7 If there is no
community, there is no property. Common wisdom is that in the world of Robinson
Crusoe there are no property rights simply because they play no role: rights are irrelevant
when there is nobody else there to recognize and respect them, or against which he needs
to assert his power over resources.8 As stated earlier, property is not only an intensely
social institution, but an intensely relational institution that mediates a pattern of property
relations. It has social origins, but a much wider moral reach.
I have thus far argued that property is a human creation that functions both to
allocate rights with respect to resources and to mediate a set of property relations. An
additional point is that while property is often thought of as primarily about an
individual’s relation to “things” (possessions), this is only part of the equation. Property
“is a relationship both to and through objects of social wealth.”9 Intrinsic to the
institution of property are two general sets of relations: relations between individuals and
objects, on the one hand, and relations among persons through those valued objects, on
the other.10 The institution of property creates and reflects a certain pattern of social
relations through the rights and duties that attach to a particular object of social value,
whether that object is land, oxygen, intellectual creativity, or a pencil. This definition—
6
Singer, Edges, 3.
Alexander and Peñalver, “Properties of Community,” 128.
8
Harold Demsetz, “Toward a Theory of Property Rights,” American Economic Review 57 (May
1967): 347, http://www.jstor.org/stable/1821637
9
Lametti, “Concept,” 329.
10
For instance, I can only speak of “my” pencil to the extent that “you” treat me in particular ways
that respect my rights to use, alienate, or exclude others from it. However, if I stab another person with it,
then I have exercised rights that I did not have with respect to my pencil. My victim had a right in that
pencil such that it would not be used as a weapon against her.
7
19
relations to and through objects of value—retains the intuitive sense that property is
about people’s relations to things, but it avoids any ontological definition of property in
order to focus on its functional role: how it is used to establish a pattern of relations by
allocating powers among the various parties in the property relation.
A functional definition of property also keeps in view the fact that different
people generally treat “things” differently based on what the object of social value is and
how its value is derived. For instance, one could reasonably argue that most Americans
would defend a plot of land more vigorously than they would a loaf of bread, mostly
because of the difference in exchange or personal value. If that bread, however, had
powers to cure cancer, the situation could conceivably be reversed. A second example of
valuation is an environmentally conscious community that gives greater legal protection
to wetlands than to strip malls. In this case, the wetlands have cultural or ecological
value. A third example is the conflict over “holy land” in the Middle East where the
land’s value is derived in part from religious sources. In short, valuation of particular
objects is a complex process, which is why general theories of ownership are limited. By
looking at how a society or a community values diverse objects differently and allocates
rights in different ways, it is possible to deduce its pattern of values, including how those
values attach to particular objects. One could also probe the various sources of those
values to gain an understanding of what the society considers important. General theories
of ownership confuse, rather than clarify, how various objects are treated differently in
social practice. Instead, a functional definition of property brings into view how a society
values objects and how it patterns its property relations through those objects.
20
The focus of this thesis is property in land because land and its role in society are
unique. No technology yet developed has completely severed the interdependent
relationship between human beings and the land. Human beings and human communities
depend on land for their livelihood and wellbeing. Additionally, land is finite. Unlike
intellectual property, for instance, land requires human beings to deal with limits. Land’s
finitude, combined with a rapidly growing human population, raises the problem of
scarcity. Simple supply-and-demand economics suggests that scarcity is a major factor in
how human beings value land. For instance, in the case of land grabbing, communities
negatively impacted are experiencing either population booms or increased foreign
interest from countries that are experiencing rapid population growth (for example, China
and India). In an age of abstraction and dematerialization, the concreteness of land—its
condition and social function—is both refreshing and frightening. For these and other
reasons, this thesis is specifically about “real property,” in common law parlance, or land
and the structures on it, such as houses. “Property,” then, as used in this thesis, refers to
property in land and buildings, or simply land. The focus is that allocation of rights with
respect to land, and the property relations implicated by holding, using, or living on land.
THE LIMITS OF OWNERSHIP
In the same way that general theories of ownership are of limited value, the word
“ownership” itself is problematic. First, what does it mean? The most common trinity of
powers, or “bundle of rights,” associated with “ownership” includes rights of exclusion,
use/control, and disposal/alienation. However, full, absolute conceptions of ownership
only exist in theory. In practice, nobody has every stick in the bundle of rights to the
21
degree that they have no obligations to the land, other right-holders, or the community.11
William Lucy and Catherine Mitchell sum up the problem:
The problem here is the contingent but undeniable truth about existing
Western societies that our rights of exclusion, control and alienation in
relation to land are severely constrained. Talk about private property in
land in these societies serves to obscure this point, blinding us to the
actuality of land holding.12
Ownership confuses the fact that all property systems impose limits on the rights of
owners to varying degrees. While I use the language of “owner” and “ownership” in this
thesis, it can only mean those limited rights that are allocated to people that are
commonly called “owners.”
Second, people hold land with many different sets of bundles of rights, many of
which are commonly called “ownership.”13 If all landholding includes some restriction on
the owner’s rights, or some different makeup of rights in the bundle, then what level of
power over land moves someone from the category of “non-owner” into the category of
“owner?”
Lastly, the language of “ownership” obscures the reality that what are really
involved are human relationships to and through land. “If property means ownership, and
if ownership means power without obligation,” according to Singer, “then we have
created a framework for thinking about property that privileges a certain form of life—
the life of the owner.”14 The language of ownership thus involves bias from the start.
However, in practice, owners’ rights do not trump all other rights. When rights conflict,
Americans, for instance, do not believe that property rights should automatically triumph
11
Lametti, “Concept,” 363-4.
Lucy and Mitchell, “Replacing Private Property,” 570.
13
Lametti, “Concept,” 363.
14
Joseph William Singer, Entitlement: The Paradoxes of Property (New Haven: Yale University
Press, 2000), 6.
12
22
over other civil rights or over social interests.15 Nuisance law is an example; it “grants
remedies when someone uses her property in a manner that causes unreasonable and
substantial harm to neighbors by interfering in their use and enjoyment of their own
property.”16 Through nuisance law, an owner’s rights are limited by the possibility of
harming her neighbors. In light of nuisance law’s intrinsic social dimensions, Singer
prefers to speak of “entitlement” rather than “ownership,” since entitlement better
communicates the fact that property rights are allocated, not morally deserved. In this
way, property rights differ from human rights in the sense that while property rights are
“granted,” human rights are “recognized.”17 In conclusion, “ownership” is an ambiguous
and misleading term. It is better to use terms that include property’s multiple functions,
such as “stewardship,” “entitlement,” “landholding,” or even just “property.” Ownership
must be understood as contingent.
PROPERTY THEORY
If property is a way of allocating powers over land, mediating property relations,
and valuing objects, and if it “impose[s] duties and vulnerabilities in a certain pattern,”18
then property implicates convictions about the kind of world that people would like to
inhabit. Whose power ought to be limited? Who ought to be empowered through
property? This is the scope of property theory. In State v. Shack, Chief Justice of the New
Jersey Supreme Court Joseph Weintraub said, “Property rights serve human values. They
15
Ibid., 9.
Ibid., 87-8.
17
Padilla, “La Biblia y los Derechos Humanos,” 19.
18
Singer, Entitlement, 138.
16
23
are recognized to that end, and are limited by it.”19 Likewise, according to Singer,
“Disputes over property use can be solved only by reference to human values, to a
normative framework.”20 Referencing values, according to Weintraub and Singer, means
invoking normative justification for adjusting property rights to conform to a larger
vision of moral relations. In their magisterial study, property scholars Gregory Alexander
and Eduardo Peñalver state that “If we define property as the category of legal doctrines
concerned with allocating rights to material resources,” then “we can understand a theory
of property as an attempt to provide a normative justification for allocating those rights in
a particular way.” A theory of property integrates law and socio-cultural practices with a
normative vision. Alexander and Peñalver continue,
At the most basic level, a theory of property would answer the question of
which human interests are relevant to the project of allocating property
rights. … Armed with a conception of the interest served by a system of
property, a theory of property would then aim to provide reasons for
allocating rights in a particular way.21
In short, a property theory addresses normativity regarding both the appropriate ends that
property ought to serve and the appropriate allocation of rights toward achieving those
ends. Theories of property address what pattern of relationships property ought to create,
and, conversely, what values ought to come into play to resolve property disputes.
Based on these understandings of property and theory, property is instrumental
and theory is aspirational. Whereas one could argue that the accumulation of property
has virtually become its own end in liberal modernity, it would be more accurate to say
that property accumulation is instrumental to achieve pleasure, power, freedom,
19
State v. Shack, 277 N.J., A.2d 369 (1971).
Singer, Entitlement, 37.
21
Alexander and Peñalver, Property Theory, 6-7.
20
24
wellbeing, or status.22 Wealth—the accumulation of property—has become a proxy for
one or another of these ends. Because wealth in liberal modernity is closely associated
with liberal values, such as freedom, conceiving of property apart from its wealthproducing function will challenge modern thinking.
Jedediah Purdy defends modern liberal property as the “keystone institution” of
an “economic image of society” that he describes as an “interest-driven system of mutual
benefit” best articulated by Adam Smith.23 A property system appropriate to a liberal
society emphasizes some form of freedom as both the means and ends of property. In this
sense, Purdy aims to reclaim the radical nature of modern liberal property and its ability
to integrate three “signal values of modern life” toward which all free persons aspire:
“choice without interference, a rich set of alternatives, and the subjective capacity to
identify and pursue interests and projects.”24 These three values, what he calls the plural
values of human freedom, make up modern liberal society’s notion of common good:
each pursuing freedom. When each pursues this tri-fold freedom—immunity, wealth, and
personality—everyone benefits. In a similar vein, economic historian Deirdre McCloskey
advocates a Smithian recovery of a virtue-based commercial society. Hers is a theological
translation of the same idea: “The deep structure of modern economics, viewed from
theology, is, so to speak, Augustinian. People are born in sin (that is, greed). By the grace
of God, and market forces, the sin is transformed into social good.”25 In short, liberal
property converts self-interest into common good. This does not happen automatically,
22
C. B. Macpherson, “Property as Means or End” in Theories of Property: Aristotle to the
Present, eds. Anthony Parel and Thomas Flanagan (Waterloo, ON: Calgary Institute for the Humanities,
Wilfred Laurier University Press, 1979), 8.
23
Purdy, Meaning of Property, 10-11.
24
Ibid.
25
Deirdre McCloskey, “Avarice, Prudence, and the Bourgeois Virtues,” in Having: Property and
Possession in Religious and Social Life, eds. William Schweiker and Charles Mathewes (Grand Rapids:
William B. Eerdmans, 2004), 313. The liturgical-sacramental imagery is not lost on the author!
25
however. According to McCloskey, liberal property-based markets depend on
“communities of virtue” in order to produce social good.26 For McCloskey, as for Purdy,
liberal property is caught up with a moral vision of commercial society and its formative
ability to “make virtuous citizens.”27 Both Purdy and McCloskey argue for liberal
property on grounds of its sociality. This sociality, however, is characterized by
commercial relations via the market.
The virtue of Purdy’s project is to demonstrate how modern property relations are
intertwined with a social imagination of commercial society.28 What is the common good
of modern liberal society? The maximization of human freedom to choose with whom
and how to relate in the market. While the picture of liberal society that Purdy and
McCloskey paint includes a pluralistic and nuanced understanding of freedom, will it
avoid Pahom’s fate? Can a property system built on self-interest, or what some call the
virtue of prudence,29 lead to a broadly common good? To summarize the argument thus
far, the institution of property is instrumental to other goods, such as freedom or wealth.
Property theory addresses which interests, values, or patterns of social relations ought to
guide the institution. This brief glance at the modern, liberal, economic view of society
also shows the interaction between property theory and a larger moral and social
imagination—in this case, a commercial society characterized by freedom.
26
Ibid., 324-25.
334.
28
Purdy, Meaning of Property, 16-17.
29
McCloskey, “Avarice,” 317-18.
27
26
A MORAL IMAGINATION
Underlying any property theory is not only a guiding image of how individuals
and communities ought to relate, what I refer to as a social vision, but also of how
individuals ought to stand in right relation to all else, whether land, others, God,
themselves, or the rest of creation. This is what I mean by a moral vision or imagination.
Whereas Purdy refers to a legal imagination as a vision of common life in which property
law is set, a moral imagination expands beyond social relations to encompass an entire
worldview in which property is set. Human beings understand themselves and their
purpose(s) in relation to a world and a narrative in which they perceive themselves to be
inhabiting.30 For individuals who see themselves as part of God’s “theodramatic” mission
to the world, according to Kevin Vanhoozer, Christian theology helps to discern a
number of questions: What kind of scene am I playing? In what kind of plot is my life
entangled? What act and scene of the drama of redemption am I playing? What is
happening? What is God doing? What should I say or do?31 For a property theory to be
“Christian” it will use as its reference point for right relations the “theodrama” of God’s
creating the world, reconciling all estranged creatures in Christ, and consummating
creation in the new creation. God’s people, the church, are here “to participate rightly in
God’s triune mission to the world.”32 Human vocation is caught up with God’s purpose
for creation as it is revealed in Scripture. Christians are a people defined by this narrative
and called to make its ends their ends.
30
James K. A. Smith, Imagining the Kingdom: How Worship Works (Grand Rapids: Baker
Academic, 2013), 108-110.
31
Kevin Vanhoozer, “A Drama-of-Redemption Model,” in Four Views on Moving Beyond the
Bible to Theology, eds. Stanley N. Gundry and Gary T. Meadors (Grand Rapids: Zondervan, 2009), 162.
32
Ibid., 163.
27
The role of theology in the theodrama is for Christians to understand themselves
in light of God’s story. “[B]y fostering deeper understanding of the drama of
redemption,” says Vanhoozer, theology “help[s] us to discern what new things we have
to say and do in order to be faithful to our canonical script and so move the same action
forward in different contexts.” In short, “Doctrine serves the project of faithful
improvisation.”33 The theodrama of redemption is the narrative that invites human
participation as improvisational actors toward a vision characterized by shalom. Shalom,
according to Nicholas Wolterstorff, “is the human being dwelling at peace in all his or
her relationships: with God, with self, with fellows, with nature.”34 Shalom is a
Scriptural, relational understanding of harmonious peace that acts as a guiding image of
creation’s wholeness and flourishing. This peace is not simply the absence of hostility or
simply a matter of being in right relationship. “Shalom at its highest is enjoyment in one’s
relationships.”35 Shalom is about how broken relations among and between God’s
creation community are ultimately to be restored to harmonious and delightful relation.
This is the relational image that ought to guide Christian thought and practices in relation
to property.
I use social vision and moral imagination in an interrelated sense—a social vision
being a subset of a larger moral vision—to refer to a combination of Purdy’s “legal
imagination” and what Charles Taylor calls a “social imaginary.” By social imaginary,
Taylor means “the ways people imagine their social existence, how they fit together with
others, how things go on between them and their fellows, the expectations that are
33
Ibid., 173.
Nicholas Wolterstorff, Until Justice and Peace Embrace: The Kuyper Lectures for 1981
Delivered at the Free University of Amsterdam (Grand Rapids: W.B. Eerdmans, 1983), 69.
35
Ibid.
34
28
normally met, and the deeper normative notions and images that underlie these
expectations.”36 Social imaginaries, often inarticulate and existing at a level below
recognition, function normatively in one’s life and directly relate to one’s practices in a
cyclical way. Taylor continues,
Our social imaginary incorporates some sense of how we all fit together in
carrying out the common practice. Such understanding is both factual and
normative; that is, we have a sense of how things usually go, but this is
interwoven with an idea of how they ought to go, of what missteps would
invalidate the practice.37
To speak of a social imaginary is to break down the dualism between theory and practice.
Rather, practices acquire meaning in relation to a social imaginary in which they fit.
However, these social imaginaries change over time in a process in which theories spawn
new practices and practices, in turn, shape new theories.38 I combine the normativity of
Taylor’s “social imaginary” with the legal aspects of Purdy’s “legal imagination” to refer
to a cosmic vision, or “moral imagination,” in which property rules are set. It is a “moral
imagination” because it refers to how a society perceives the moral order to be, and how
property relations are supposed to be.
In his proposal for an African political theology, Ugandan theologian Emmanuel
Katongole says that “all politics are about stories and imagination.” For this reason,
“Christian social ethics in Africa must shift its exclusive focus on strategies for fixing the
structures of democracy and development and get into the business of stories.”39 Good
governance and economic development may increase quality of life, but these strategies
are oriented by a narrative—of economic or political development—that could also
36
Charles Taylor, Modern Social Imaginaries (Durham, NC: Duke University Press, 2004), 23.
Ibid., 24.
38
Ibid., 29-30.
39
Emmanuel Katongole, The Sacrifice of Africa: A Political Theology for Africa (Grand Rapids:
W.B. Eerdmans, 2011), 2-3.
37
29
impede progress. In addition to technical solutions, Katongole argues, Africa needs a
“story that assumes the sacred value and dignity of Africa and Africans.”40 Over against a
narrative of nation-state politics, he concludes that a “Christian social imagination” is
Africa’s greatest hope.41
Generalizing Katongole’s proposal for Africa, it is not the wealthy and powerful,
but those whose dignity and value are most threatened—the vulnerable, marginalized,
and yet unborn—who need a social imagination and a story that assumes their sacred
value and dignity. In the words of John Paul Lederach, a moral imagination is “the
capacity to imagine something rooted in the challenges of the real world yet capable of
giving birth to that which does not yet exist.”42 A uniquely Christian moral imagination
ought to shape the direction, contours, and character of theodramatic improvisation in the
challenges of the real world. The theodrama, its sense-making function in Christian
practices, as well as the moral actors that it renders important, is what I mean by
Christian moral imagination and its correlative social vision.
A property theory informed by a Christian moral imagination, then, is structured
not by principles or values, but by a story of how the triune God relates to create all
things, reconcile estranged creatures, and consummate creation, calling the church to
faithful improvisation as it participates, through the power of the Spirit, in this
theodramatic mission. Any principles, doctrines, values, concepts, or virtues will be
secondary to and derivative from this theodrama. If, as stated above, a theory of property
renders a set of human interests and a pattern of allocating rights in accordance with
40
Ibid., 21.
See Emmanuel Katongole, A Future for Africa: Critical Essays in Christian Social Imagination
(Scranton, PA: University of Scranton Press, 2005).
42
John Paul Lederach, Moral Imagination: The Art and Soul of Building Peace (New York:
Oxford University Press, 2005), ix.
41
30
those interests, then this theodrama of redemption will include a pattern of valuation, use,
and relations rooted in the distinct ways God relates to God’s creatures and the ways
human beings relate responsively to God.43
AMERICAN CIVIL RIGHTS: PROPERTY, VALUES, AND VISION
The civil rights movement in the United States provides relevant examples of how
property functions and evolves to create and propagate a particular pattern of social
relations based on a social vision. Prior to civil rights legislation, the American sociolegal system allocated property rights that gave landowners the freedom to exclude
people from their property based on race. Jim Crow laws in the southern states, for
instance, were a de jure form of racial discrimination that allowed white business owners
to exclude blacks from their property. This exclusion held up in court. Early efforts to
reform the law were criticized for limiting freedom: “A law prohibiting such private
discrimination was at first criticized in prominent quarters as a violation of property
rights and as a hopeless, paternalistic effort to force people to interact against their
wishes.”44 There was a conflict between the rights of owners (to exclude) versus the
rights of non-owners (to equal treatment). At the root of this property conflict was, on the
one hand, an owner’s right to freely use her property as she saw fit, including her right to
exclude people based on race; and, on the other hand, the right of non-whites to access
and use property, particularly businesses, as did the white population. Through civil
43
For an exploration of how this narrative coheres with Old Testament Israel’s law and legal
system, see Wright, Old Testament Ethics, 281-326. OT law prioritizes human need over legal rights or
claims, generating greater moral urgency and weight for vulnerable and marginal peoples, including the
needs of the landless over against the legal property of landowners (Dt. 24:19-22).
44
Peñalver, “Land Virtues,” 60.
31
rights legislation, the government resolved this conflict by limiting an owner’s freedom
and elevating the value of racial equality.45
This example demonstrates that a property conflict in recent history was, at root, a
conflict of values. These values, however, were not static. It was a time of great social
change, when a wide range of actors, such as Martin Luther King, Jr., universities,
religious communities, cultural icons, and novelists were challenging existing social
values and reimagining or “dreaming up” new social visions. King’s “dream” was a
moral vision in which the social values of racial equality would matter more than the
values of individual freedom that, unchecked, had led to exclusion and race-based
segregation. King’s vision of “the Beloved Community” rested on the “willingness to see
the other as an extension of oneself,” and for this reason King rejected the subordination
of “human rights” to “the rights of property.”46 Social values were changing, and the
property system had to adjust to this new, compelling social vision and its values. The US
Congress acted in this changing context to limit owners’ rights and to give rights to nonowners, thereby aiming to achieve a pattern of social relations consonant with racial
equality.
During the same era, the northern states also generated patterns of unequal race
relations through de facto segregation, using exclusionary housing covenants and lending
practices, such as “redlining,” that effectively excluded blacks from owning or buying
homes in white neighborhoods and suburbs.47 Whether segregation was being upheld by
the law or by common practices, the lived experience for racial minorities was one of
45
See US Code 42 SS 2000a. Interestingly, the law only affected businesses and public spaces,
upholding homeowners’ exclusionary rights.
46
Martin Luther King, Jr., The Trumpet of Conscience, quoted in Singer, Edges, 58.
47
See Oliver L. Melvin and Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective
on Racial Inequality (New York: Routledge, 1995).
32
exclusion. In the case of redlining, banks played a significant role in generating and
maintaining racial segregation through their choices not to lend to households in lowincome, largely black and Hispanic neighborhoods. While occurring in largely the same
historical context of social change as the civil rights achievements against Jim Crow
laws, this form of segregation required a different response. The same value of racial
equality came into conflict with a bank’s freedom to choose or deny clients in its own
interest. In this case, “low-income” status became a proxy for race, but the result was the
same: effective exclusion of blacks from white neighborhoods and white suburbs.
Congress passed the Community Reinvestment Act in 1977 to encourage more equal
lending practices.48 If banks were going to accept federal deposit insurance, then they
would be required to comply with regulations mandating lending in low-income, racial
minority communities.
Exclusionary housing covenants are a third example. It was written into the deeds
of homes, or even entire subdivision communities, that racial or religious minorities were
prohibited from purchasing particular properties. Real estate developers, in particular,
produced many of these exclusionary covenants in order to better market homes to whites
by ensuring that certain neighborhoods would remain white. These covenants were
legally enforced until the United States Supreme Court finally ruled them
unconstitutional, after a number of rulings which upheld them, in 1948.49 In this case, the
private sector (real estate developers) responded to the individual preferences of society’s
economically powerful (whites), and cooperated with the courts and lawmakers in what
was a systemic form of racial segregation through property rights. The Jim Crow,
48
49
See US Code 12, Chapter 30, SS 2901.
See Shelley v. Kraemer, 334 U.S. 1 (1948).
33
redlining, and exclusionary covenant examples all demonstrate the interplay between
social values and property rights, whether practices of racial exclusion were explicitly
upheld by law or more subtly by business practices and individual preferences. In each
context, however, lawyers, legislators, activists, religious leaders, and others reformed
these unjust property practices to conform to a changing vision and its correlative values
of racial inclusivity.
The civil rights examples are pertinent not only because they demonstrate that
property rights are fluid, evolving as they reflect and reproduce a pattern of values
embedded in a larger social and moral vision, but also because they show that land
conflicts can act as a window into deeper conflicts of social values and moral visions.
Land conflicts, and the justifications employed in resolving them, indicate how human
beings navigate co-existence in a world of difference and scarcity. Additionally, while the
civil rights example shows that property laws and rules are only part of the overall
process of social change, rules may be a necessary step in a context of competing moral
and social visions. According to Peñalver, using law to limit or override the decisions of
owners can achieve three goals: (1) it can “protect those, such as the poor and future
generations, whose ability to flourish might be harmed by owners’ immoral decisions”;
(2) it can “constrain the behavior of nonvirtuous owners and, over time, teach them to act
virtuously of their own accord”; and (3) it can “clarify social obligations and to
coordinate collective virtuous actions.”50 The civil rights examples are largely an
instance of the second and third goals, constraining immoral behavior in order to effect
50
Peñalver, “Land Virtues,” 59-60 (emphasis mine).
34
changes in racial attitudes, and reducing the barriers for virtuous business owners to serve
racial minorities without fear of losing business due to social taboos.51
While it is necessary to engage cultural practices and beliefs beyond legal and
political avenues of social change, rules and laws are nevertheless concrete
manifestations of a society’s values and therefore its moral and social vision. That being
said, an important difference between many wealthy and developing countries is the
prevalence and effectiveness of enforcement mechanisms. Legal solutions only lead to
the social changes Peñalver notes in places where laws are enforced.52 This is why any
theory of property-based social change must also speak of property practices alongside
property laws. Cultural and political context matters in this regard.
SHARED EQUITY HOMEOWNERSHIP AND PROPERTY FORMALIZATION
Below is a brief overview of two property-based poverty alleviation campaigns:
shared equity homeownership and property formalization. First, shared equity
homeownership has gained momentum as a “third way” alternative to the dichotomous
housing options available on the American landscape, where residential property is
owned either publicly or privately, housing prices are either socially controlled or
market-driven, and residents are either renters or owners.53 Shared equity homeownership
is a diverse spectrum of housing rights arrangements that blurs the distinctions between
these polarities.
51
Ibid., 60-1.
See Sandra Joireman, Where There is No Government: Enforcing Property Rights in Common
Law Africa (New York: Oxford University Press, 2011).
53
John Emmeus Davis, “Shared Equity Homeownership: The Changing Landscape of ResaleRestricted, Owner-Occupied Housing,” National Housing Institute (Montclair, NJ: National Housing
Institute, 2006), 1.
52
35
Shared equity arrangements have in common three features: (1) the home is
occupied by its owner as residential property; (2) some portion of the home’s equity
remains with the home and passes to the next generation of low-income homeowner; and
(3) the rights, responsibilities, and benefits of the property are shared between the
homeowner and the larger community.54 In terms of property rights, shared equity
homeownership bundles the rights of shared equity homeowners differently than in
market-rate (fee simple) ownership. Perhaps most important is the restriction on a
property’s resale price in order to keep it affordable to lower-income buyers on a longterm basis. The limited rights are oftentimes justified on the basis, first, of the home’s
long-term affordability, and then also on the amount of stability, wealth, civic
involvement, and life improvement that shared equity homeownership can provide to
low-income households.55 In this way, shared equity promotes property’s social, political,
and personal functions in addition to its wealth-generating, economic one.
In brief, shared equity homeownership is meant to offer a number of the benefits
traditionally associated with fee simple homeownership in the United States, but at a
lower cost to buyers. The lower cost makes homeownership accessible to low-income
households in order to include them within the American owner, or middle, class. The
trade-off for this affordability is limited resale rights. In the United States,
homeownership is closely associated with the “American Dream,” a social vision in
which ownership is broadly dispersed among the population, thus forming the basis of
54
55
Ibid., 3.
Ibid., 6-11.
36
social mobility and opportunity regardless of one’s social class or circumstances of
birth.56
Shared equity homeownership is a creative response to affordability challenges in
recent decades. It puts some of the benefits associated with homeownership within reach
of low-income households. However, it raises a number of moral questions. For one, can
a homeownership model that limits an owner’s rights really provide the benefits
traditionally associated with full homeownership? Second, who are these programs
targeting and what unique moral dynamics emerge from this target population? For
instance, if its purpose is to include lower-income Americans in the “American Dream,”
then a substantial segment of the target population will be racial minorities. Given a
history in which racial minorities were legally and systemically excluded from
homeownership in many parts of the country until recent decades, and given that
homeownership is perhaps the defining feature of the middle class, then what are the
moral implications of limiting the asset-earning potential of racial minorities in what
could be seen as a “separate but equal” housing market? When a majority-white full
homeownership class is building market-rate equity while a largely racial-minority,
shared-equity-homeownership class is facing restricted resale prices, might this creative
form of ownership newly manifest and reproduce an unjust form of systemic racism and
classism?
The second movement that I critique with a theocentric stewardship theory of
property is the international development campaign called property formalization.
Formalization seeks to bring the enormous informal sector of many developing nations’
56
William M. Rohe and Harry L. Watson, “Introduction,” in Chasing the American Dream: New
Perspectives on Affordable Homeownership, eds. William M. Rohe and Harry L. Watson (Cornell, NY:
Cornell University Press, 2007), 3.
37
economies into the formal mechanisms of global, free-market capitalism through
formalizing property rights. By formalizing the existing assets of the informal sector,
property rights are fixed in a process of legal representation, allowing “dead assets” to be
transformed into wealth-producing capital. The immediate backdrop of the formalization
campaign is the major global population shift from rural areas to urban centers from the
post-World War II era on. Many of these new urban dwellers set up homes,
neighborhoods, and entirely new cities on unused private lands, public lands, or lands
with ambiguous title. Having no formal title to these properties, they inhabit the informal,
or extralegal, sector and participate in largely informal economies.
Peruvian economist Hernando de Soto is the property formalization campaign’s
most notable theorist. In brief, de Soto argues the following: capital is necessary to create
wealth; a legal property system is necessary to create capital; therefore, property is the
root of capitalism.57 “Property,” he says, is “a mediating device that captures and stores
most of the stuff required to make a market economy run.”58 And a market economy
formally governed by the rule of law is the pathway to peace and prosperity for the
excluded poor who increasingly inhabit the informal sector. Developing-world poverty,
according to de Soto, is not the result of cultural flaws, colonial legacies, or a lack of
Protestants or entrepreneurial spirit, but is a result of the developing world’s inability to
produce capital.59 The developing-world poor already have assets ($9.3 trillion in his
estimation).60 What they lack is the formal property system’s “representational process”
that allows assets to “lead an invisible, parallel life alongside their material existence”
57
Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails
Everywhere Else (New York: Basic Books, 2000), 63.
58
Ibid.
59
Ibid., 4-5.
60
Ibid., 35.
38
and generate capital.61 “They have houses but not titles; crops but not deeds; businesses
but not statutes of incorporation.”62 De Soto’s basic premise is that legal representation—
clearly defined property rights—converts dead assets into capital that can produce
economic benefits far beyond an asset’s limitations in local, informal, community
networks.63 Assets, most notably land, must be represented with titles in order to “draw
out capital from them.”64 Western nations, he argues, do this largely unawares through
“an implicit process buried in the intricacies of its formal property systems.”65 For this
reason, developing nations should engage in titling and other property formalization
campaigns in order for the poor to create capital, and therefore wealth, a net benefit for
all.
Property formalization is a complex, creative proposal for developing-world
poverty alleviation, or rather wealth creation, with widespread appeal among
international actors and institutions.66 De Soto paints a dignified image of the poor as
creative, hard-working entrepreneurs who have built cities on dust mounds outside Lima
and tidal marshes in Port-au-Prince. He also rejects cultural origins of poverty, works
against “legal apartheid,”67 institutionalizes equitable access to the means of capital
production, and appropriately critiques Western capitalists themselves for not
understanding their own histories and processes of wealth creation. De Soto’s version of
61
Ibid., 6.
Ibid., 7.
63
Ibid., 6.
64
Ibid., 7.
65
Ibid., 46.
66
Among the international actors promoting formalization are the United Nations, the World
Bank, the Economist, and Bill Clinton. See, for instance, Klaus Deininger, Land Policies for Growth and
Poverty Reduction: A World Bank Policy Research Report (New York: World Bank, 2003).
67
De Soto, Mystery, 223. By “legal apartheid,” de Soto refers to a situation in which the wealthy
have access to formal property (and its benefits) while the poor do not—a system he refers to as
“mercantilism,” not capitalism.
62
39
property formalization also serves an historical socio-political purpose: to win the hearts
and minds of Peru’s poor who, in a context of exclusive and monopolistic mercantilism,
were being recruited as revolutionary insurgents in a war against the state.68 In short, De
Soto aims to channel market prosperity toward the poor by including them in a legal
system that has excluded them from the processes of economic development.
Whereas de Soto creatively relates economic, social, and political goals,
formalization as it is translated into programs and policies implicates a number of moral
concerns. First, property’s capital-producing, wealth-generating function is generally
taken to be a core element of its social purpose. Second, in practice, formalization tends
to reflect an evolutionary bias toward privatization over other forms of property.69 Third,
formalization maintains a strict public-private dichotomy, privileging the laws of the state
over other forms of regulation, such as community, and thus makes property rights
dependent on a well-functioning, fair legal system. Fourth, formalization must account
for its historical failures—dispossession and social disintegration—in which cultural
values partly determined its results. Finally, formalization treats all objects as assets,
whether land, pencils, or oxygen, and reduces these diverse objects to a singular metric of
exchange value. All of these concerns share in common that formalization may have an
undeveloped understanding of poverty, human need, and human flourishing.
If formalization puts individual title into the hands of the poor, what unintended
consequences will result? Is it possible that formalizing property will make it easier for
wealthy individuals or corporate entities to legally acquire land from the poor under the
68
See new preface to Hernando de Soto, The Other Path: The Economic Answer to Terrorism,
With a New Preface by the Author (New York: Basic Books, 2002).
69
De Soto, to his credit, advocates formalization of common property practices—private or
otherwise.
40
pretense of “development?” In practice, does formalization reflect individualistic values
that might work against human flourishing? Is formalization too closely associated with
neoliberal ideology? If it can be severed from neoliberalism, can formalization be used as
a tool of stewardship? I suggest that formalization’s positive, long-term impact on the
poor and excluded can be strengthened by envisioning it anew in light of a Christian
moral imagination.
41
Chapter 2: Contemporary Property Theories
In this chapter, I describe and evaluate a number of property theories in order to
draw attention to at least three aspects: their moral assumptions about the human person,
their understanding of the individual’s relationship to communities, and the social vision
implied by each. I evaluate these property theories on the basis of Christian faith, hope,
and love. These theological virtues are integrally related to a theocentric account of
human flourishing. This approach will be elaborated in the third chapter, but in short,
faith has to do with relating faithfully to God, trusting God for one’s being and engaging
in faithful practices of loyalty to God’s creative project. Hope has to do with relating
hopefully to God, including engaging in hopeful practices rooted in the resurrection that
hold together the “already but not yet” character of God’s Kingdom. Love has to do with
relating lovingly to God as creatures who, while yet estranged sinners, have been
reconciled to God in Christ. This includes engaging in practices of loving solidarity with
fellow estranged-yet-reconciled creatures—that is, loving one’s neighbors as oneself.
Lastly, I outline the requirements of a stewardship theory of property, which will provide
the basis of a theocentric stewardship theory of property directed at human flourishing.
42
The advantage of critiquing the following property theories on the basis of
Christian faith, hope, and love is that this rubric integrally and cyclically relates theory
and practice: faith requires faithful practices, hope results in hopeful practices, and love
spawns loving practices. Humans are “liturgical animals” who, in some fundamental way,
construct their world and act within it on the basis of what they worship.1 Human
practices shape imaginations and imaginations shape actions in a cyclical process. Human
beings are partly formed into faith, hope, and love through practices that strengthen these
theological virtues. Therefore, the challenge is to conceive of how to faithfully,
hopefully, and lovingly use property for the glory and worship of God.
While I critique the dominant libertarian and utilitarian property theories, the
purpose is not to reject utilitarian economic analysis of property or the importance of
individual freedom from oppressive forms of community. The goal is to situate these
within a wider framework of stewardship in which they are but two tools among others in
the tool belt of moral and socio-political decision-making about property. Because landrelated challenges implicate the wellbeing of vulnerable and marginalized groups—
women, indigenous communities, the rural poor, future generations—decision-making
about property cannot be limited to calculations of net wealth or freedom of choice. The
capacity for these calculations to inform moral judgments for diverse and dynamic
societies is limited. They must be counterbalanced by more expansive social and
ecological values within a theory of stewardship.
Contemporary property policies, practices, and dispute resolutions are largely
based on one of two dominant property theories, or a fusion of them both. These are what
1
Smith, Imagining the Kingdom, 27.
43
Alexander and Peñalver call the utilitarian and libertarian theories of property.2 Both
reflect a limited and individualistic social vision and moral imagination. In the
development field they come together in the ideology of economic neoliberalism, which I
define as an interest-based theory that elevates the functioning of a spontaneous and free
market over other social or political goals.3 At risk of oversimplification, a wellfunctioning free market is taken to be the common good, an idea encapsulated in the
saying “a rising tide lifts all boats.” A free market society allows individuals to determine
what is good based on their own preferences and interests; it aims to maximize freedom
of individual choice and minimize public intervention. For neoliberals, political
institutions govern and administer policies that aid the market’s efficiency, and legal
institutions enforce the rules to protect equality before the law. Social problems, for
neoliberals, are best addressed through interest-based, market solutions.
UTILITARIAN THEORY OF PROPERTY
The first dominant approach is a utilitarian theory of property. As a utilitarian
theory, it is consequentialist in its moral reasoning, meaning that the moral assessment of
an institution such as property depends on whether it tends to maximize net utility, or
welfare, defined by some singular and calculable value such as wealth.4 Before
2
The following accounts of utilitarian, libertarian, and identity theories of property closely follow
Alexander and Peñalver’s categorization in Property Theory. While any classification of theories risks
simplifying positions and rounding out nuances, this categorization serves to reveal some of the values and
social visions at stake.
3
Economic neoliberalism generally refers to the work of Milton Friedman and his disciples; see
Capitalism and Freedom (Chicago: University Press, 1962). For a neoliberal approach to law, see Richard
Posner, Economic Analysis of Law (Boston: Little, Brown, 1972); Ronald Coase, “The Problem of Social
Cost,” Journal of Law and Economics 3 (October 1960): 1-44. Herein, I refer to economic neoliberalism
simply as neoliberalism.
4
Alexander and Peñalver, Property Theory, 11. Internationally, aggregate wealth is measured as
Gross Domestic Project (GDP). I use “utility” and “welfare” as interchangeable terms.
44
calculating it, utilitarians must first define “utility.” While the classic Benthamite
definition is pleasure and contemporary utilitarians tend to define utility as preference
satisfaction, a distinguishing feature of all utilitarian theory is that it bases moral
calculation on the subjective experiences of individual human beings.5 It aims at the
experientially satisfying life. In this sense, utilitarian theory is individualistic. With a
definition of utility in hand, utilitarians depend on their calculations of net utility for
socio-political decision-making. They give an immense amount of moral weight and trust
to empirical data and calculations, including the assumptions about human behavior
necessary to make such calculations.6 For utilitarians, property institutions should be
arranged in order to maximize net utility, a proxy for which is very often wealth.7 In
general, then, property institutions ought to maximize society’s aggregate wealth.
A key idea of utilitarianism is that property is instrumental to a more basic
good—that is, utility. However, whereas both Aristotle8 and Aquinas9 employed
utilitarian arguments for private property, both did so only within a larger moral
framework that itself was not utilitarian. The twentieth century’s proponents of a largely
utilitarian economic analysis of property make up the Law and Economics school of
thought.10 In order to make predictions about the various consequences of legal decisions,
legal economists employ conceptual tools, such as the rational-actor model of human
5
Ibid., 13.
Ibid., 15-17.
7
Ibid., 17.
8
Aristotle, Politics 2.5-6, trans. Benjamin Jowett (1994),
http://classics.mit.edu/Aristotle/politics.html
9
Thomas Aquinas, “Summa Theologica,” in The Summa Theologica of St. Thomas Aquinas,
Second and Revised Edition, trans. Fathers of the English Dominican Province (1920), II-II.66.2,
www.newadvent.org/summa/index.html
10
Alexander and Peñalver, Property Theory, 18. Richard Posner and Harold Demsetz are two of
the leading figures in Law and Economics. See Harold Demsetz, “Toward a Theory of Property Rights”; or
Property Rights: Cooperation, Conflict, and Law, eds. Terry L. Anderson and Fred S. McChesney
(Princeton: University Press, 2003).
6
45
behavior as well as game theory, including game theory’s anthropology of the utilitymaximizer.11 In its normative role, “legal economists generally argue that a social choice
is efficient to the extent that it maximizes net utility or welfare, and that a social choice is
good or better when it is more efficient than its alternatives.”12 For instance, property
formalization, which tends to emphasize property’s ability to make a market economy
run, is compatible with a broadly utilitarian theory of property.
While the utilitarian theory accurately describes a deeply subjective aspect of
human behavior in the pursuit of desire or preference satisfaction, it falls short of a
theological account of human beings. First, the self-interested, rational utility
maximizer—homo economicus—that utilitarians employ in order to make predictive
moral calculations is not so much inaccurate as it is insufficient. Carol Rose’s classic
exploration of economic property demonstrates that this homo economicus fails to
explain a large portion of economic behavior, not least of which is the cooperative
behavior that forms the basis of social contract theory.13 A theological rendering of this
idea, according to Frank Alexander, is that utilitarian economics treats human beings as
fallen without accounting for either their created goodness or their redemptive behavior.
Because “the self-interested person is not the paradigm for normative behavior,” he says
in relation to property, “[w]hat has been missing in our property law regimes is any sense
11
Alexander and Peñalver, Property Theory, 18. The rational actor model of human behavior is an
image of the human person as wanting more of a good rather than less—i.e., a utility-maximizer. It is used
to calculate utility. Game theory is a mathematical calculation of how rational actors will behave in a
context of competition.
12
Ibid., 18-19.
13
See Carol Rose, “Property as Storytelling: Perspectives from Game Theory, Narrative Theory,
Feminist Theory,” in Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership
(Boulder: Westview Press, 1994). Referring specifically to liberal modernity’s social contract narratives
she says, “A property regime, in short, presupposes a kind of character who is not predicted in the standard
story about property” (37). In short, a rational actor would not enter the kind of social contract assumed by
social contract theory.
46
of the normative relationships of humans to the land.”14 The problem is that human selfinterest is disordered and distorted as a consequence of human sin. In other words,
utilitarian economics confuses the descriptive and the normative, the fallen and the
redeemed, thus failing to distinguish between what the subject thinks will contribute to
her happiness and what might actually do so. When human beings read themselves in
light of the theodrama, they cannot say that the way things are now is how they should or
shall be. To do so is a failure of hope, a confusion of what is with what will be. In short,
homo economicus is too one-dimensional to encompass the complexity of human beings:
their desires, passions, diversities, and aspirations.
Second, strict utilitarian economics distorts the doctrine of creation on the sources
and processes of valuation—a failure of faith. It assumes that the value of things derives
solely from human beings (exchange value), not from any intrinsic value derived from a
created thing’s relation to God as creature. A thing’s market-based exchange value is
what matters for market-oriented analysis. However, cultural economist Arjo Klamer
distinguishes between economic, social, and cultural capital, arguing that economists
“developed an interest in the institution of private property . . . when they realized that
this institution might be a factor in the accumulation of economic capital.”15 Klamer
demonstrates that people commonly integrate social and cultural/religious values within
their property-related practices. However, these valuation processes are not factored into
utilitarian property theory. Klamer argues that including these spheres of value within a
14
Frank S. Alexander, “Property and Christian Theology,” in Christianity and Law: An
Introduction, eds. John Witte and Frank S. Alexander (Cambridge: University Press, 2008), 213-14.
15
Arjo Klamer, “Property and Possession: The Moral Economy of Ownership,” in Having:
Property and Possession in Religious and Social Life, eds. William Schweiker and Charles Mathewes
(Grand Rapids: W.B. Eerdmans Press, 2004), 343-46. In Klamer’s categories, cultural capital would
include religious capital/values.
47
theory of property would give a more accurate and dynamic moral framework.16
Valuation of objects is a complex process that exchange value does not exhaust. For this
reason alone, decision-makers should never reduce it to calculations of exchange value.
Third, since utilitarian economics has limited ability to conceive of moral action
apart from preference satisfaction or calculations of aggregate welfare, assessments of
what it is good to do are dependent on the accuracy, assumptions, methods, and outcomes
of cost-benefit calculations. Because the utilitarian approach to property is dependent on
empirical calculation for its moral decision-making, utilitarians must associate social
welfare with a measurable, unitary metric of utility maximization, most commonly
wealth. But does wealth really correlate with wellbeing? Equating wealth with wellbeing
conflicts with an understanding in which multiple and incommensurable social values
matter. For instance, a nation’s Gross Domestic Product (GDP) does not indicate its level
of equality or how its most vulnerable are faring.17 This inability of a purely utilitarian
theory to account for the vulnerable and marginalized is a failure of love, in particular
neighbor-love. Lastly, an extension of this failure of love is that utilitarian theory’s moral
import is rooted in individual preferences, an approach that cannot be synthesized with
normative Christian values such as justice, mercy, or love. To call these values
“preferences” is to misunderstand their centrality in the Christian life. Love, justice, and
mercy are not preferences, but imperatives consistent with God’s theodramatic mission to
creation. Christians do not “prefer” justice over injustice, but rather seek justice because
God is just, acts justly, and calls them to participate in Godly ways in theodramatic
16
Ibid., 352.
The Gini coefficient, however, does measure inequality, but its usage already assumes the
limitations of a purely utilitarian theory. Inequality has moral import only when equality is valued
alongside utility-maximization.
17
48
mission. Christian virtue is not only about an agent developing certain Christian
preferences, but is also about the recipients of an agent’s actions: have they been loved in
a neighborly, Christian way? The preference model fails to consider the robust wellbeing
and flourishing of others.
While a strictly utilitarian theory of property is insufficient, utilitarian economic
analysis contributes to a stewardship theory tools for assessing the impact of a property
law or practice. The consequences of social choices matter: whether or not they benefit
and empower the poor and marginal. In the next chapter I argue that Aquinas, reflecting
and influencing Western theological understandings of property, employed utilitarian
arguments within a larger moral theory. First, utilitarian economic analysis of property
has significant explanatory power: self-interest, or the virtue of prudence,18 is indeed a
powerful and complex motivator of human behavior. Incentives to maintain or improve
one’s property, for instance, can mean the difference between a property’s gaining value
and its losing value due to neglect. The shared equity homeownership model must
navigate this dynamic: attempting to balance incentives (equity accrual) and limits
(restricted resale price) that will nevertheless incentivize a homeowner to maintain a
property’s value (e.g., fixing the roof when it starts to leak).
Second, utilitarian economics shows that valuation is a dynamic process and that
all human choices are made in a finite world defined, at least in part, by scarcity. Pace
Kathryn Tanner, while social Trinitarian principles of “unconditional giving, universal
inclusion, and noncompetitive possession” may expand a limited “economic
18
McCloskey, “Avarice,” 317-20.
49
imagination,”19 they cannot replace the economic value-creating dynamics of scarcity
and finitude. There is a level of self-interest and prudence that ought to factor into an
understanding of property. The human condition is a paradox of scarcity and abundance,
of fallenness and redemption, of the Kingdom’s “already” and its “not yet.” McCloskey
provocatively sums up the tension: “theology cannot get along without the systematic
study of prudence; and economics cannot get along without the systematic study of
God.”20 The tension cannot be eliminated. In sum, the explanatory power of utilitarian
economic analysis need not be confined to utilitarian moral theory. Utilitarian analysis
can also be employed within a stewardship theory.
LIBERTARIAN THEORY OF PROPERTY
A libertarian theory of property is the second dominant paradigm in contemporary
property discourse.21 The ideal property arrangement for the libertarian is one that
maximizes an owner’s rights of exclusion, use, and disposal. Libertarian political theory,
like political liberalism, is generally grounded in a theory of natural rights stemming from
John Locke’s Two Treatises of Government. Locke wrote these treatises in large part to
counter a theological argument for absolute monarchical rule.22 Contrary to how Locke
has been appropriated by libertarians, however, his was not a natural law theory in
defense of private property, but rather of democratic self-government against the
backdrop of royal absolutism. “Locke’s theory of property is instrumental, but ultimately
19
Kathryn Tanner, “Economies of Grace,” in Having: Property and Possession in Religious and
Social Life, eds. William Schweiker and Charles Mathewes (Grand Rapids: W.B. Eerdmans Press, 2004),
370.
20
McCloskey, “Avarice,” 336.
21
Libertarian theory is the basis of the “ownership model” that I critiqued earlier.
22
Alexander and Peñalver, Property Theory, 35-36.
50
subservient, to this project of constructing a democratic political theory.”23 While
political libertarianism and political liberalism are both rooted in Locke, libertarians
invert this relationship between property and government. The distinction is important
because it demonstrates how Locke could coherently argue for both a strong right of
private property and its (state-sponsored) restriction in the interests of others.24 For
Locke, a common right to the earth’s resources to ensure one’s self-preservation is prior
to any private right of ownership. For human beings are God’s “property” and are
therefore obligated to preserve themselves25 and others.26
Libertarianism shares with Lockean liberalism the idea that the individual bears
natural rights prior to social life or social arrangements.27 In this sense, property rights
emerge from “moral desert,” rather than political society.28 As a theory of moral desert, it
requires a basis for justifying an individual’s appropriation of private property. For this
Locke develops a metaphysical labor theory: a person naturally owns her body, including
her labor, and appropriates something as exclusively her own from a state of nature when
she mixes her labor with it.29 Once individuals contract together and form civil
government, the state cannot transgress these property rights rooted in natural human
rights. Rather the state regulates and formalizes them through the consent of the
23
Ibid., 36.
John Locke, “Treatise on Government,” in John Locke Second Treatise of Government, ed. C.B.
McPherson (Indianapolis: Hackett Publishing, 1980), II.27,
http://oregonstate.edu/instruct/phl302/texts/locke/locke2/locke2nd-a.html
25
Ibid., II.6.16.
26
Ibid., I.86 and II.6.
27
Ibid., II.25-26. The US Constitution, II, for instance, refers to the “unalienable rights” that “all
men” are “endowed [with] by their creator,” chief among them “life, liberty, and the pursuit of happiness”
(emphasis mine).
28
Stephen Munzer, A Theory of Property (New York: Cambridge University Press, 1990), 255.
29
Locke, “Treatise,” II.27.
24
51
governed.30 Regardless of their basis of moral desert, contemporary libertarians continue
to promote the idea that strong private property (ownership) rights are a bulwark against
government, including regulation and redistribution.31
Lockean political liberalism and contemporary libertarianism part ways on the
nature of individual freedom and civil government. Contemporary liberal property
theorists, like Purdy, have a plural understanding of freedom and thus, like Locke, are
permissive of state-sponsored regulation and redistribution. For libertarians, however, the
individual’s freedom is primarily a freedom from interference by the state, or “negative
freedom.”32 The state’s purpose is in large part to protect natural rights, preeminently
negative freedom. This libertarian view is associated with an understanding of human
rights-as-immunities that protect the individual and his pursuit of his interests from the
interventions of collectivities, such as the state. Libertarians Robert Nozick and Richard
Epstein “favor a strictly negative community in which people merely owe one another
duties of noninterference.”33 For libertarians, property ownership rights function as a
buffer between the individual and the community, protecting a sphere in which owners
exercise their powers over property with as little external interference as possible.
According to Locke scholar Jeremy Waldron, this libertarian approach to property
is far from the theistic natural law rationale that grounds Locke’s theory. Locke’s natural
law rationale led him to recognize that a universal right to equality, or common good, is
30
Ibid., II.135, II.138.
Alexander and Peñalver, Property Theory, 53. For contemporary libertarian property see Robert
Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974); and Richard Epstein, Takings:
Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985).
Epstein recognizes the limits of a rights theory, but makes up for its ambiguities with elements of
utilitarianism.
32
See Isaiah Berlin, Four Essays on Liberty (New York: Oxford University Press, 1969).
33
Alexander and Peñalver, Property Theory, 53.
31
52
prior to an individual’s private property right.34 Against libertarians, Waldron argues that
Locke is most accurately understood within the broad natural law tradition of Thomas
Aquinas.35 Locke, like Aquinas, is permissive of state-sponsored regulation and
redistribution.36 Alexander and Peñalver succinctly summarize the transformation of
Locke’s theological account into a libertarian one: “Having jettisoned Locke’s
assumption of original common ownership, his theistic natural law framework (with its
obligation of charity), and his majoritarian theory of consent,” contemporary libertarians
“have taken us very far from the circumstances that motivated Locke to write the Two
Treatises.” They continue,
Instead of a theory of limited private property rights in the service of an
argument for majoritarian government, twentieth-century Lockeans have
offered us a theory of limited majoritarian government in the service of
private property rights.37
While Locke is not commonly regarded for his theology, his theological justification for
private property is within a (albeit limited) conception of stewardship: individual
property owners have a God-given duty to preserve the lives of their fellow human
beings, particularly those in need.
The libertarian, rights-based political theory of property emphasizes the
importance of human freedom to any account of political society consistent with human
dignity. However, it tends to put significant weight on the basic human right to negative
freedom, and its anthropological corollary, the autonomous individual. If homo
economicus is self-interested, the libertarian rights-bearing subject is self-directed. The
34
Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Locke’s Political
Thought (Cambridge: University Press, 2002), 151.
35
Ibid., 95.
36
Alexander and Peñalver, Property Theory, 55.
37
Ibid., 55-56.
53
emphasis is on protection of one’s property rights, one’s person, and one’s freedom to
self-direct. It is a defensive posture of the individual against interference from the
community. Libertarian political theory first falls short of a theological account of human
freedom. Theologically understood, the proper ends of being human are not a matter of
human choice. “[W]e do not have our end in ourselves,” says Oliver O’Donovan, “so that
the possibility of meaningful self-movement, directed to a purpose fit for us, depends on
God’s engagement with us.”38 Human freedom and God’s will are to be reconciled by an
encounter with God’s authority—whether through Scripture, creation, angels, or other
means—to make human beings truly free. A theological notion of human freedom is a
freedom to love God and neighbors in accordance with God’s will. Thus a libertarian
theory of property is a failure of love, of loving solidarity with other estranged, yet
reconciled creatures.
Second, libertarian theory privileges a form of property ownership that allocates
as many rights to owners as possible. It therefore tends toward an ideal of absolute
property ownership, an “ownership model.”39 Such a conception has been nearly
universally rejected in Western Christian thought since the patristic era. Filipino scholar
Charles Avila has in view this kind of “absolutist and exclusivist Roman-law conception
of private property” when he concludes his study of the patristic consensus on ownership:
The Herculean task of patristic thought was to confront the established
ownership concept and stand it on its head. From being an instrument of
exclusion and separation it was to become one of inclusion and
community building. Instead of an unlimited and absolute power it was to
be a limited one, related to genuine human values. Instead of being
38
Oliver O’Donovan, “The Moral Authority of Scripture,” in Scripture’s Doctrine and Theology’s
Bible: How the New Testament Shapes Christian Dogmatics, ed. Markus N. A. Bockmuehl and Alan J.
Torrance (Grand Rapids: Baker Academic, 2008), 165.
39
Singer, Entitlement, 3.
54
considered an end in itself it was to be considered a means to certain
ends.40
Christian thinkers from Augustine to Locke consistently found absolute conceptions of
ownership to be out of bounds. The ownership model effectively rejects the doctrine of
creation, including God’s ultimate ownership of all things. In this sense, libertarian
theory is a failure of faith. Property law “allocates burdens of persuasion,” and in the
ownership model “we tend to expect nonowners to have to justify their claims to place
limits on the powers of the owner,” when it should just as often be the reverse: owners
ought to justify their uses of property that limit the freedom, wellbeing, or flourishing of
non-owners.41 The ownership model places the burdens of persuasion on the community
to justify limiting an owner’s rights. At the very least, a libertarian theory lacks resources
for a robust social responsibility manifested in political and legal institutions. At worst,
the theory lacks conceptual tools to constrain or compensate for the negative effects of
distorted human interests and their corollaries, injustice and suffering.
Third, a libertarian political theory of property is closely associated with a view of
human rights as immunities against the interference of others, or more positively stated as
the freedom to be a fully self-determining agent. It is an interest-based theory, meaning
that individuals need immunities in order to pursue their own interests.42 Yet Wolterstorff
has convincingly argued that apart from a theistic account of natural or inherent human
rights, there can be no logical justification for rights that human beings have by virtue of
40
Charles Avila, Ownership: Early Christian Teaching (Maryknoll, NY: Orbis Books, 1983), 144.
Singer, Entitlement, 94.
42
Paul Weithman, “Nicholas Wolterstorff’s Justice: Rights and Wrongs: An Introduction,”
Journal of Religious Ethics 37, no. 2 (2009): 185, doi: 10.1111/j.1467-9795.2009.00381.x
41
55
their inherent worth.43 If there is no coherent basis for natural human rights apart from a
theistic one, then the contemporary libertarian project of severing Locke’s account of presocial property rights from his theological narrative is untenable. What would ground a
theory of moral desert to justify the appropriation of private property? What is more, this
libertarian rights theory is socially atomistic and leads to a politics of “possessive
individualism.”44 Contrary to the thinking of many contemporary political theologians,
however, this does not mean that Christians ought to reject the language of rights.45
Wolterstorff carves a reforming path between rights-as-immunities, on the one hand, and
the total rejection of rights, on the other, insisting that “rights are claims to the good of
being treated in certain ways. Rights are normative social relationships” the reference
point of which is the shalom of God’s Kingdom.46 In contrast to a libertarian account of
rights in which individuals are free to decide and pursue their subjective good,47
Wolterstorff argues that one can only have rights in relation to substantive good(s).48
Justice cannot be purely procedural. It must eventually account for what is substantively
good. In its failure to ground a substantive good, libertarian theory is a failure of hope.
In its lack of resources to guard another’s wellbeing, libertarian theory is a failure
of love. Libertarians may be virtuous and loving individuals, but they lack resources for a
43
41.
See Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton: University Press, 2008), 323-
44
See C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke
(Oxford: Clarendon Press, 1962).
45
Joan Lockwood O’Donovan, Oliver O’Donovan, and Stanley Hauerwas oppose all human rights
talk, particularly because of its association with a possessive form of individualism. They disagree with
Wolterstorff that the language can be rescued from its libertarian anthropology and its atomistic social
ontology. See, for instance, Oliver O’Donovan and Joan Lockwood O’Donovan, Bonds of Imperfection:
Christian Politics, Past and Present (Grand Rapids: W. B. Eerdmans, 2004); Oliver O’Donovan, “The
Language of Rights and Conceptual History,” Journal of Religious Ethics 37, no. 2 (2009): 193-207,
doi: 10.1111/j.1467-9795.2009.00382.x; Stanley Hauerwas, Resident Aliens: Life in the Christian Colony
(Nashville: Abingdon Press, 1989), 43.
46
Wolterstorff, Justice, 263 (emphasis mine).
47
Weithman, “Nicholas Wolterstorff,” 185.
48
Wolterstorff, Justice, 261.
56
social form of justice. What the language of rights “brings to speech” is not the “agentdimension” of virtue and obligation, but the “recipient-dimension” of the victim, the one
who receives an agent’s action.49 Without the recipient-dimension, justice is incomplete.
There can be no human flourishing when the focus is only on how well one is living
(virtue), but only also if one asks how others’ lives are going.50 This is loving solidarity:
human rights are not primarily about protecting oneself, but about protecting the
vulnerable—the “orphans and widows.”51
While its shortcomings are multiple, a libertarian, freedom-based approach to
property can contribute insights to a stewardship theory. First, freedom is indeed a
necessary component of human flourishing. The freedom to obey the will of God in
social and political life allows for engagement in practices of loving solidarity between
neighbors, in faithful practices of loyalty to God’s creative mission, and in practices
rooted in the “already but not yet” hope of the resurrection. Second, protecting a
minimum degree of human freedom is one crucial way to avoid tyranny and oppression
by powerful political or economic regimes. Third, an appropriate level of ownership
power—rights of exclusion, use, and disposal—over one’s property is intuitive. Limiting
them too much could work against property’s ability to motivate industry and production.
Lastly, freedom from coercion respects the subject’s moral agency and dignity.
49
Nicholas Wolterstorff, “Modern Protestant Developments in Human Rights,” in Christianity
and Human Rights: An Introduction, eds. John Witte, Jr. and Frank S. Alexander (New York: Cambridge
University Press, 2010), 171.
50
Wolterstorff, Justice, 145.
51
For an account of how property laws in Scripture exist for the poor and vulnerable see Patrick
Miller, “Property and Possession in Light of the Ten Commandments,” in Having: Property and
Possession in Religious and Social Life, eds. William Schweiker and Charles Mathewes (Grand Rapids:
William B. Eerdmans, 2004), 17-50.
57
DEVELOPMENT AND THE DOMINANT PROPERTY THEORIES
In this account, the utilitarian and libertarian theories of property overlap in that
they are both interest-based theories of property with individualistic moral reasoning.
They both inform neoliberal ideology to varying degrees. However, it is important to
distinguish between utilitarianism and libertarianism because they are unique moral
theories, and because property disputes reveal value conflicts, and value conflicts are
often related to conflicting moral theories.52 While utilitarian and libertarian theories
overlap significantly—that is, they are both individual interest-based—their patterns of
social values can differ, as can their typical processes of moral reasoning (e.g.,
consequentialism vs. natural rights).53 A stewardship approach, however, can better
situate the values of human freedom and economic welfare within a larger framework in
which human rights (as normative-social-relationships) form the ground floor of shalom
and economic welfare is measured alongside other indicators of wellbeing.
The utilitarian and libertarian theories do not exhaust contemporary moral
theories of property. However, they are the most powerful theories shaping property
rights at the global level today.54 African development scholars have critiqued property
formalization for its close association with neoliberal ideology.55 In addition, the
empirical research indicates that formalization has fallen short of achieving good
52
Joseph William Singer, “Property and Social Relations: From Title to Entitlement,” in Property
and Values: Alternatives to Public and Private Ownership, ed. Charles Geisler and Gail Daneker
(Washington, DC: Island Press, 2000), 7.
53
For instance, land grabbing can be justified on grounds that it increases aggregate wealth
(utilitarianism) or that it maximizes an investor’s freedom to purchase land (libertarianism).
54
See, for instance, Deininger, Land Policies; John Williamson, Latin American Adjustment: How
Much Has Happened? (Washington, DC: Institute for International Economics, 1990); the work of the
Hoover Institution of Stanford University; or “free market environmentalism” in Terry L. Anderson and
Donald R. Leal, Free Market Environmentalism, Revised Edition (New York: Palgrave: 2001).
55
See Celestine Nyamu Musembi. “De Soto and Land Relations in Rural Africa: Breathing Life
into Dead Theories about Property Rights,” Third World Quarterly 28, no. 8 (2007): 1457-1478,
http://www.jstor.org/stable/20455012; and Ambreena Manji. The Politics of Land Reform in Africa (New
York: Zed Books, 2006).
58
outcomes, such as women’s wellbeing and empowerment or broad-based property
ownership.56 Third, legal solutions are insufficient when enforcement mechanisms are
absent or inadequate.57 Lastly, critics point to the historical failures of a legal
development approach both in Africa and among Native Americans.58
Whereas proponents of a legal development approach generally thought that
putting in place the right property institutions would catalyze capitalistic activity, they
failed to consider the extent to which property institutions acquire meaning in light of the
property theories and moral imaginations that underlie them. Legal anthropologist
Ambreena Manji says that what de Soto presents as a “technical fix” to poverty is a
project whose “ideological nature remains unexposed.”59 Private property institutions, for
instance, will not have the same economic function that they do in post-Enlightenment
societies so long as the theories underlying these institutions are at odds with cultural
understandings of how moral agents ought to relate. This point gains further clarity when
one considers the forty-seven-year-long “allotment” campaign in the United States: under
the pretext of economic development, the US government took lands out of Native
American community control and converted them into the individual control of Native
American households through titling. Allotment ended in dispossession, fragmentation,
and worse socio-economic conditions in Native American communities than had existed
before.60 Given the failures of the legal-instrumentalist property rights paradigm in recent
history, why has it regained normative force in international development? Manji
56
Ibid.
See Joireman, Where There is No Government.
58
Manji, Land Reform, 16; Ezra Rosser, “Anticipating de Soto: Allotment of Indian Reservations
and the Dangers of Land-Titling,” in Hernando de Soto and Property in a Market Economy, ed. D.
Benjamin Barros (Burlington, VT: Ashgate, 2010), 61-81.
59
Manji, Land Reform, 19.
60
Rosser, “Anticipating de Soto,” 66-69.
57
59
concludes that even though instrumentalist views of legal development fell out of favor
decades ago, “economic and political neo-liberalism have now provided the necessary
conditions for a new law and development.”61 What explains the renewed interest in an
approach to property formalization that is tied to privatization and commercialization is
not its historical record, which is questionable, but the fact that it finds fertile ground in a
context of neoliberalism. Neoliberalism adds theoretical fuel to a fire that was nearly
extinguished years ago.
IDENTITY THEORY OF PROPERTY
One alternative to the utilitarian and libertarian theories is the identity, or
personality, theory of property that includes the psychological angle of property relations
within the idea of property. In this theory, property is integral to the development of
individual personality or community identity.62 What does property do? It forms personal
identity; it fuels self-development.63 The identity approach emphasizes property’s
personality-forming role, elevating it above utilitarian wealth-creating or libertarian
freedom-protecting functions. In so doing, it highlights an aspect of property largely
overlooked by the dominant theories: the significance of particular places for individual
and community identity. In this sense, property functions in relation to individual human
61
Manji, Land Reform, 16.
See Georg W. F. Hegel, Hegel’s Philosophy of Right, trans. T. M. Knox (Oxford: Clarendon
Press, 1952); or, for a contemporary version of an identity theory indebted to Hegel, see Margaret Jane
Radin, “Property and Personhood,” Stanford Law Review 34 (1982): 957-1015.
63
Alexander and Peñalver, Property Theory, 68.
62
60
beings becoming members of ethical communities, thus forming the foundation for their
socialization with others.64
With roots in Hegelian theory, an identity approach both provides a justification
for limiting or requiring private property rights based on the idea of self-development and
establishes a constitutive relationship between property, identity, and community. It is a
“via media between extreme rights theories and rights-denying collectivist theories,
dissolving the apparent antagonism between individual rights and community goals.”65
Margaret Jane Radin integrates this approach with social psychology to argue that
property laws ought to be structured in such a way that those objects of property that
more integrally constitute personal identity ought to receive greater protection.66
Identity theory gets beyond merely the exchange value of things to better
encapsulate the fact that individuals and societies value different “things” differently, in
part because of how those objects come to constitute identity. Things can have personal
value. Land is likely to have more identity-constituting power than, for instance, a pencil
or one’s place in line at a coffee shop. And therefore property in land ought to entail a
unique allocation of rights consistent with its identity-shaping power. Whereas utilitarian
theory can turn just about anything into a commodity, identity theory injects the idea of
incommensurability. For instance, the loss of a homeland cannot be compensated for by
64
Peter Stillman, “Property, Freedom, and Individuality in Hegel’s and Marx’s Political Thought,”
in Nomos XXII: Property, ed. J. Roland Pennock and John W. Chapman (New York: New York University
Press, 1980), 143.
65
Alexander and Peñalver, Property Theory, 65.
66
Radin, “Property and Personhood.”
61
money because the value of each is incommensurable.67 Identity theory rejects the idea
that all objects can be reduced to a singular, monetary exchange value.
In Old Testament theology, Walter Brueggemann’s classic study of the land’s
significance for OT Israel engages property from an identity perspective: how the
particular land of Canaan, including its promise, possession, and loss, constitutes Israel’s
identity and faith.68 It is in this way that Israel’s status in relation to the land—
anticipating, holding, or remembering—is so integrally tied to its faith, or lack of it. The
exilic prophets voice the land’s loss as a loss of hope.69 “Life without the land was
scarcely life as God’s people at all.”70 The land of Canaan had identity-shaping power for
OT Israel, and land continues to have this power today. This identity approach renders
how “personality is constituted in large measure by the reciprocal rights and duties
existing between oneself and others,” and how those rights and duties define oneself “in
relation to others vis-à-vis scarce resources.”71 In short, the identity approach to property
contributes to an understanding of the formative role that property plays in human
becoming in relation to land, as well as to others through the land.
While the identity approach adds a psychological, formative function to the idea
and institution of property, it is insufficient on its own. For one, it fails to account for the
fluidity of meanings that property acquires in changing contexts, such as post-conflict
67
For instance, in the case of Israel and Palestine, even if the state of Israel compensated
Palestinians for their lost land, many Palestinians would likely still feel that something had been
irretrievably lost.
68
See Walter Brueggemann, The Land: Place as Gift, Promise, and Challenge in Biblical Faith,
nd
2 ed. (Minneapolis: Augsburg Fortress Press, 2002).
69
Ez. 37:11.
70
Wright, Old Testament Ethics, 82.
71
Alexander and Peñalver, Property Theory, 68.
62
situations.72 Second, like the utilitarian approach, it also lacks an understanding of land’s
intrinsic value, apart from its capacity to form identity. It is myopically anthropocentric.
Third, in its articulated forms, most notably in Radin’s work, the identity theory focuses
largely on self-development rather than on the character of social relations established
and constituted by property. A wider understanding would give equal weight to
property’s role in forming communities of character and healthy ecologies. Even so, it
should be evident how this theory could be used in support of, for instance, protecting
indigenous territories from extractive industries. Indigenous identities are at least partly
constituted by their relation to particular places. Threatening the health of those places is
also a psychological threat to indigenous identity.
A stewardship approach can incorporate property’s identity-forming power, its
ability to shape human becoming, as one meaning among others that property acquires in
its social use. In relation to the property formalization project, one of de Soto’s primary
arguments for formal, over informal, property arrangements is that informal arrangements
are dependent on local knowledge and trust. In contrast, formal property is “fixed” by
legal contracts and can thus be freed to generate capital beyond the constraints of small
communities and the limits of their social networks.73 But if what Singer says is accurate,
that “property cannot exist without trust,”74 can social trust be replaced by legal contracts
without a net loss? In relation to shared equity homeownership, since the barriers to
owning property are reduced, there is increased opportunity for low-income families to
remain, if they choose, in neighborhoods experiencing improvements in safety,
72
See Sandra Joireman and Jason Brown, “Property: Human Right or Commodity?”, Journal of
Human Rights 12.2 (2013): 165-179,doi: 10.1080/14754835.2013.784662
73
De Soto, Mystery, 46-48.
74
Singer, Entitlement, 17.
63
education, and other social goods. Shared equity gives low-income families the choice to
remain in places that have formed their identities.
Identity theory contributes to stewardship an understanding of how particular
places relate to individual and community identity. Human relations to land shape human
identity: who one is becoming. Stewards ought to aim to relate to land in ways that shape
them into people who are fully alive in faith, hope, and love by exercising these
theological virtues that, like muscles, are strengthened the more they are used. By
engaging in faithful, hopeful, and loving property-related practices, stewards contribute
to human flourishing: their own and others’.
TOWARD A THEORY OF LAND STEWARDSHIP
The three theories explored above are, to varying degrees, individualistic. The
identity theory perhaps better incorporates sociality within a theory of property, but it,
too, is generally geared toward self-development and experiential satisfaction. A fourth
category is what I call a stewardship theory of property, meaning that it includes moral
responsibility or obligation within the idea of property itself. Stewardship theory readjusts
the burdens of persuasion more equally among landowners and non-owners, allocating
rights to owners in accordance with owners’ duties to others, or even to the natural
environment. There are two sub-types of stewardship theory: those grounded in
humanitarian values and those grounded in ecological values. Both stewardship models
share in common that they expand the moral community—meaning those moral actors to
whom duties are owed—to include relations that transcend the individual within their
moral reasoning. In stewardship theory, property institutions relate human beings in
64
particular ways to these other moral actors, whether they be the poor, future generations,
ancestors, watersheds, or other non-human creatures.
A humanitarian stewardship theory generally expands the moral community to
encompass the wellbeing of all human beings both now and in the future.75 With a focus
on all human beings, it thus recognizes the moral value of those most likely to be left out
of moral reasoning: among them the poor, the vulnerable, the voiceless, and the unborn.
In contrast to stewardship’s theological origins, recent stewardship scholarship
secularizes the concept with humanitarian theories of responsibility: “The original
concept has been enlarged to incorporate the notion that man’s [sic] responsibility as
custodian of the natural environment is not necessarily a duty owed to God but to the
wider human community, perhaps including future generations.”76 The distinction is
important for it is about what is owed to other human beings by virtue of their being
human beings. This approach, like the three already examined, still only values the
natural environment for its instrumental relation to meeting human needs.
Property scholars William Lucy and Catherine Mitchell have outlined the
contours of a humanitarian stewardship theory of property, including what such a theory
requires. In short, a stewardship theory requires that any degree of a landholder’s control
over resources “be exercised with due regard to the interests that other persons, apart
from the holder or steward, may have in the resource.” In contrast to the ownership
rights—exclusion, use, disposal—commonly associated with private property ownership
75
Contemporary examples of a humanitarian theory of property are Lucy and Mitchell,
“Replacing Private Property;” and Peñalver, “Land Virtues.” The property as human flourishing theory that
I address below is also a form of humanitarian theory.
76
Lucy and Mitchell, “Replacing Private Property,” 583.
65
“[t]he hallmark of stewardship is land holding subject to responsibilities of careful use.”77
Stewardship shifts moral attention from forms of property to its uses. According to Lucy
and Mitchell, the anthropology of the steward is the exact mirror of the libertarian rightsbearer: “The steward is, in essence, a duty-bearer.”78
Being a duty-bearer, however, does not mean that stewards have no rights. The
legal category of trusteeship is an example. Trustees have nominal ownership of a trust
property and yet have control over it. However, the trustee holds the property on behalf
of a beneficiary who is entitled to the property’s benefits. Similarly, “an abstract account
of stewardship maintains that the holder, or steward, has some control and rights over the
resource, but that control must in the main be exercised for the benefit of specific
others.”79 Stewardship theory is other-focused. This does not mean, however, that a
stewardship theory requires heroic altruism on the part of landholders. Trustees, for
instance, receive some reward for their stewardship. It is a question of how much reward
is fair or appropriate to both the trustee and the beneficiary of her trusteeship. In this way,
stewardship incorporates the utilitarian idea of incentives, but conditions those incentives
by motivating other-interested, in addition to self-interested, behavior.
Before continuing this analysis of humanitarian-based stewardship theory, it is
instructive to probe the historical development of trusteeship as a legal category. The
language of trusteeship and property held in trust is not incidental. Social relations—
property relations in particular—cannot exist without trust.80 The language of trusteeship
comes from a European legal tradition deeply shaped by a Judaeo-Christian imagination.
77
Ibid., 584 (emphasis mine).
Ibid.
79
Ibid.
80
Singer, Entitlement, 135.
78
66
A few historical examples demonstrate the connection. In European history, church
property was the first to be held in trust. This type of trusteeship in church property was a
result of the fourteenth-century controversy between early Franciscans and Pope John
XXII over the meaning of Christian dominium—that is, ownership or stewardship.81
Trusteeship was how Franciscans “reconciled their rejection of individual private
ownership” in favor of “a trust relationship in which property was held by the order, or
the church, for the use and benefit of others, yet at all times belonging ultimately to
God.”82 Regardless of the lasting value of medieval forms of land tenure, the legal
category of trusteeship was developed as a legally viable way to separate property’s
holding from its use, as well as to recognize responsibilities stemming from the land’s
ultimate ownership by God.
In a different context, Indian nationalist and activist Mahatma Gandhi drew from
this Christian history when he advocated an alternative to the modern duality between
private and state ownership in the 1930s and 1940s:
Those who own money now are asked to behave like trustees holding their
riches on behalf of the poor . . . . You may say that trusteeship is a legal
fiction. But if people meditate over it constantly and try to act up to it,
then life on earth would be governed far more by love than it is at present .
. . . [I]f we strive for it, we shall be able to go further in realizing a state of
equality on earth than by any other method.83
Gandhi’s hope for Indian society was, in part, to be materialized through the Christian
concept of trusteeship grounded in human equality and with reference to a society bound
together by love.
81
Garnsey, Thinking About Property, 98-106.
Frank Alexander, “Property,” 216.
83
Gandhi, “Extract from an Interview with Nirmal Kumar Bose [9/10 November 1934],” in The
Penguin Gandhi Reader, ed. Rudrangshu Mukherjee (New York: Penguin Group, 1996), 241.
82
67
Lastly, aspects of modern mortgage law owe their existence to Christian
trusteeship. In medieval England, a dynamic developed in which people sought help from
church authorities in the face of what they saw as unfair and uncharitable decisions by the
common law courts. The “chancery courts” that developed out of this dynamic came to
recognize that non-owners might have “equitable rights” in an owner’s property such that
the court could “order the ‘legal owner’ to refrain from using the property in a manner
inconsistent with the rights of the equitable owner.”84 This was legal recognition that
property uses involved obligation to others. The chancery courts manifested trusteeship
by recognizing and enforcing a system in which property rights (and responsibilities)
were allocated in accordance with what they took to be Christian social values. The
reason for mentioning these three examples is to demonstrate that stewardship is not
wishful thinking. In the form of trusteeship, stewardship has precedent in legal and social
history, and, in Gandhi’s case, it has been offered as an alternative to modern models. In
short, the principles of stewardship are already incorporated into common legal and
social practices.85
Stewardship, as a way of holding property for the benefit of others, has precedent
in various historical and religious contexts. However, a full stewardship theory must
answer a number of justificatory questions: stewardship on behalf of whom and for what
purpose? Lucy and Mitchell are correct in raising these two justificatory questions: How
are those others to whom duties are owed to be identified? And on what basis are those
duties owed?86 These questions demonstrate the need for a moral theory to provide the
substantive ends of stewardship’s instrumentality. Lucy and Mitchell argue that a moral
84
Singer, Entitlement, 101.
Frank Alexander, “Property,” 216.
86
Lucy and Mitchell, “Replacing Private Property,” 584.
85
68
theory compatible with a stewardship approach will have to include at least three
features: (1) it must be altruistic; (2) it must account for human needs; and (3) it must
have an ecological sense of justice.
First, by altruism Lucy and Mitchell refer to a moral regard for others, a
“sensitivity to the needs and requirements of other persons who rely on land for their
welfare” to such a degree that it can counterbalance self-interest.87 “The duties of
stewardship may provide constraints within which the steward retains some rights to
develop the land, but these rights are restricted, and their exercise is always liable to be
overridden by the duties of stewardship.”88 There must be some sense in which otherregarding behavior is intrinsic to the idea of property. That other-regard will be legally
manifested in property responsibilities. The basis of “altruism” is neighbor-love and
practices of loving solidarity and communion with one’s neighbors. Altruistic neighborlove thus counterbalances the excesses of the individual interest-based theories explored
above and their limited understandings of self-interest.
Second, what Lucy and Mitchell mean by an account of human needs is that
which is necessary for human beings to do well, including survival, social interaction,
personal development, and other human goods.89 This is the question of human wellbeing
and human flourishing, of what makes up a full life. “Because it is the needs of others
that will trigger, and provide the basis for, some of the duties of the steward, the moral
foundation of stewardship must either rest upon an account of human needs or be
sensitive to such an account.”90 A robust theological anthropology renders an account of
87
Ibid., 596.
Ibid.
89
Ibid., 597.
90
Ibid.
88
69
human needs. Any theocentric account of human needs and human flourishing will
include one’s relating well to God and others. A regard for the whole-person needs of
others counterbalances the excesses of interest-based theories and their limited
conceptions of human welfare and freedom.
Third, by an ecological sense of justice Lucy and Mitchell mean recognition, on
the one hand, of the necessity of land to satisfy human needs and, on the other, the need
to pursue “land use measures designed to satisfy social and ecological criteria” before
“individual economic interest.”91 This is particularly a concern for the impact of land
scarcity, resource depletion, and environmental degradation on human beings. Lucy and
Mitchell recognize finitude and urge a prioritization of values in light of these given
limitations. Peñalver translates this ecological sense of justice into what he calls the land
virtue of “humility,” denoting “someone who is aware of his own limitations.” He adds
that “A concern with uncertainty points us toward the value of humility, which
encourages us to recognize the limits of our ability to weigh costs and benefits in our
decisions about land.”92 Where human beings are perhaps most limited is in calculating
the consequences of their decisions on future generations and on ecological health.
Theologically, the basis of such an ecological sense of justice—or an ecological sense of
humility—is the doctrine of creation, including human beings’ faithful practices of
loyalty to God’s creative project. An ecological sense of justice thus counterbalances the
excesses of the narrowly anthropocentric valuation processes of interest-based theories.
To sum up their contribution, Lucy and Mitchell have provided the contours of a
91
92
Ibid., 598.
Peñalver, “Land Virtues,” 75-6.
70
stewardship theory: it must account for other-regard, human flourishing, and ecological
health.
Lucy and Mitchell promote a secularized version of Christian stewardship. They
suppose that it is possible to make God irrelevant to the humanitarian pursuit of human
flourishing, what Charles Taylor calls an “exclusive humanism.”93 The problem is that an
exclusive humanism ultimately substitutes the glory and worship of God with the
flourishing of humanity. While one could join Irenaeus in saying that “the glory of God is
human beings made fully alive,”94 either to equate the two or to substitute human
flourishing for God’s glory is to err theologically. If it is true that “we become what we
worship,”95 then human beings will never grow into Christ-likeness so long as they
worship exclusively human ends, aiming to achieve them with exclusively human
powers. Human flourishing is caught up in the aspirations of God-relating. Another way
to say this is that human creatures do not know or do what is ultimately best for them, but
God does.
A humanitarian stewardship theory values non-human creatures and creation in
light of their worth to humanity, thus excluding the possibility of intrinsic value that
derives from a creature’s relation to God. Theologically speaking, the non-human
creation has intrinsic value apart from its capacity to satisfy human needs. This is not to
say that land is sacred, but to say that “it is the relationships, Godward and humanward,
of which property is a function, which are alone sacred.”96 The land matters because God
93
Charles Taylor, A Secular Age (Cambridge, MA: Belknap Press of Harvard University Press,
2007), 244-5, 571.
94
This is David Kelsey’s translation of “Gloria Dei vivens homo” in “Human Flourishing,” 1-2.
95
See G. K. Beale, We Become What We Worship: A Biblical Theology of Idolatry (Downers
Grove: InterVarsity Press, 2008).
96
Christopher J. H. Wright, God’s People in God’s Land: Family, Land, and Property in the Old
Testament (Grand Rapids: InterVarsity Press, 2004), 140-41.
71
relates to it to create and sustain it. Human beings share this God-relating status with the
rest of creation. Given these shortcomings, however, humanitarian property helpfully
includes both human wellbeing and the moral significance of future generations within a
dynamic property ethic that is moving toward a theocentric account. It also includes
space for ecological values, even if those values still ultimately derive from the land’s
capacity to meet human needs. A theocentric stewardship theory can morally encompass
the flourishing of all human beings without losing sight of either the ultimate ends of
humanity or the intrinsic value of the non-human creation.
Stewardship is an idea that expands along with its moral community, to which I
now add all biological life. Ecologists respond to the question What matters? by
referencing a dynamic set of relations that tie human communities closely together with
the rest of the biological community. An ecological stewardship theory of property, in
contrast to humanitarian property, expands the moral community to encompass biological
life, whether grasses and soils or buffalo and macaws. Ecological property is built upon
the ecological principle that all life is related, that the biological community is composed
of a web of relationships that disallows any strict boundary-setting between members.
For this reason, it resists one of the foundational requirements of private property: that
things be “separable” from the rest of biological life and therefore able to be treated as
objects or commodities to which property rights attach.97 If rights over land are allocated
to an owner, then does that include oil deposits under the land, the air above it, or the
squirrels who live on it? For this reason, it is challenging for an ecologist to discern
where to draw the line between land and the rest of biological life. Ecology does not
97
Lametti, “Concept,” 351-52; Aldo Leopold, “Land Ethic,” in A Sand County Almanac (New
York: Ballantine Books/Oxford University Press, 1966), 251; Eric T. Freyfogle, The Land We Share:
Private Property and the Common Good (Washington, DC: Island Press, 2003), 7.
72
allow the neat distinctions even between humans and humus, since human bodies are
composed of biological material in process. Humans and soil are morally distinct, but
humans cannot continue being human without the soil. In ecology, the relations matter
because they make known the health of the system, of the whole biological community.
As a science, ecology has its descriptive and its prescriptive powers. It can
describe how biological life relates, but it can also render a normative account of healthy
biological relations. Aldo Leopold defines health as “the capacity of the land for selfrenewal.”98 Normative ecology is perhaps best articulated by Leopold in his essay “Land
Ethic”: “A thing is right when it tends to preserve the integrity, stability, and beauty of
the biotic community. It is wrong when it tends otherwise.”99 For Leopold, a “land ethic
simply enlarges the boundaries of the community to include soils, waters, plants, and
animals, or collectively: the land.”100 A land ethic also reorients anthropology by
“chang[ing] the role of Homo sapiens from conqueror of the land-community to plain
member and citizen of it. It implies respect for his fellow-members, and also respect for
the community as such.”101 Property scholar Eric Freyfogle describes Leopold’s project
as a vision “in which landowners owed distinct responsibilities to sustain not just their
social communities but their natural communities as well.”102 Leopold insists that the
common good is best served by nurturing the land’s ecological health. The land
community’s health, in this sense, acts as a barometer of the health of its members,
including its human members.
98
Leopold, “Land Ethic,” 258.
Ibid., 262.
100
Ibid., 239.
101
Ibid., 240.
102
Freyfogle, Land, 139.
99
73
Ecological property is an underutilized approach with significant insight and
conceptual commonality with a theocentric paradigm: both are concerned with relations
among all creatures. According to biblical theologian Richard Bauckham, Leopold’s
image of a biotic community is important because “it models the kind of commonality
and interdependence of humans and all other creatures that the Hebrew Bible
recognizes.” The difference, however, is that “the community the Bible envisages is a
theocentric community of creatures.”103 The difference matters when it comes to
interpreting biological phenomena. Freyfogle’s corpus on American environmental law is
a sustained reflection and outworking of Leopold’s land ethic in relation to property law
today.104 Freyfogle seeks to reclaim the public’s interest (and rights) in private land in
order “to tailor the rights and responsibilities of ownership so as to protect the land’s
natural functioning.”105 Freyfogle believes that reorienting property law in accordance
with a “biocentric narrative” will lead to the changes necessary for a healthier property
system.106
A significant part of the challenge for ecological property theorists is to account
for both human exceptionalism, even if in a chastened sense, and the fallen human
condition. On what basis can one argue, for instance, that a human being has more value
(and therefore deserves more protection) than a tree? In relation to human fallenness,
evolutionary biology can render an understanding of sin’s consequences (e.g., unhealthy
ecological relations), but it is unable to account for how entrenched human sin is.
103
Richard Bauckham, The Bible and Ecology: Rediscovering the Community of Creation (Waco:
Baylor University Press, 2010), 88.
104
See Freyfogle, Land; “Owning the Land: Four Contemporary Narratives,” Florida State
University Journal of Land Use and Environmental Law (1998),
http://www.law.fsu.edu/journals/landuse/Vol132/Frey.htm; Idem, On Private Property: Finding Common
Ground on the Ownership of Land (Boston: Beacon Press, 2007).
105
Freyfogle, Land, 8 (emphasis mine).
106
Freyfogle, “Owning the Land,” 3.
74
Leopold’s hope lies in a social evolutionary process toward attitudinal change and
Freyfogle’s in a biocentric narrative,107 but, according to the doctrine of sin, neither
ecology-friendly attitudes nor ecology-friendly narratives will ultimately reverse human
beings’ solipsistic propensities. In other words, no amount of storytelling will reverse the
consequences of sin. God’s redemptive work alone can do this. Human sin goes deeper
than the science of ecology can probe. Whereas ecology provides resources for the what
and the how of biological relationships, it must look beyond itself for the why of
ecological problems and solutions. In brief, ecology contributes to theological
stewardship theory an understanding of relational systems and healthy communities.
The writer Wendell Berry takes Leopold’s idea of the land community and
theologically reorients it. For Berry, like Leopold, the measure of successful land use is
the health of the local land community:
If we speak of a healthy community, we cannot be speaking of a
community that is merely human. We are talking about a neighborhood of
humans in a place, plus the place itself: its soil, its water, its air, and all the
families and tribes of the nonhuman creatures that belong to it. If the place
is well preserved, if its entire membership, natural and human, is present
in it, and if the human economy is in practical harmony with the nature of
the place, then the community is healthy.108
Health is about a “practical harmony” among people and land that can be achieved
through an economy that properly relates the members. However, unlike Leopold, Berry
situates this practical harmony within God’s creation community. He continues,
“Community, then, is an indispensable term in any discussion of the connection between
people and land. A healthy community is a form that includes all the local things that are
connected by the larger, ultimately mysterious form of the Creation. All neighbors are
107
Leopold, “Land Ethic,” 263.
Wendell Berry, Sex, Economy, Freedom, and Community (New York: Pantheon Books, 1992),
14 (emphasis mine).
108
75
included.”109 For Berry, creation is the neighborhood and all creatures are one’s
neighbors. Berry’s “practical harmony” refers to the shalom characteristic of a flourishing
community.
INSIGHTS FOR THEOCENTRIC STEWARDSHIP
I have categorized in this chapter a number of property theories and a few key
elements of their moral reasoning. These are by no means complete pictures and neither
do they exhaust existing theories of property. This survey is meant to render each
theory’s unique strengths and challenges in relation to constructing a theocentric theory
of land stewardship. The utilitarian approach provides insight into human behavior in
contexts of scarcity, including the capacity of self-interest to translate into industrious
behavior that can increase wealth, broadly defined. In other words, economics provides
insight into choice-making that is not limited to legal-political solutions or the threat of
coercive enforcement. The libertarian approach provides insight into the freedom that
human dignity requires. Human freedom is a constitutive element of human flourishing in
a world in which community always involves the possibility of tyranny and oppression.
To always counter immoral property practices with regulations that outlaw those
practices is to have a limited understanding of law: regulations can just as often stifle
human agency and flourishing. The identity approach contributes insight into how land
relations form individual and community identities. It thus has a basis for cultural
diversity within property rights. There is no singular, transcultural model of property that
will achieve healthy social relationships in all cultures. The goal, instead, ought to be a
109
Ibid., 15 (emphasis mine).
76
framework that can promote moral relations in whatever way they are uniquely
manifested in diverse cultures and contexts.
Stewardship theory provides the best foundation for a theocentric theory of
property. Stewardship provides conceptual resources and practical models for
incorporating and evaluating the moral import of actors that transcend immediate
individual experience, as well as a basis for incorporating property responsibilities along
with rights. By imagining a wider set of moral property relations, stewardship internalizes
within the idea of property the consequences of property uses on the wellbeing or
suffering of others, whether those others are future generations, the poor, or non-human
creatures. Stewardship theory brings into view a relational community of living creatures
who are at their fullest when they enjoy right relation to one another. In the following
chapter, I elaborate a relational approach to human flourishing to ground a theory of
theocentric stewardship.
77
Chapter 3: Property and Human Flourishing
Having critiqued a number of property theories in contemporary scholarship and
practice, in this chapter I expand on the significance of the theological angle of property
relations for theocentric stewardship. My reference point is the theory of property as
human flourishing, a comprehensive stewardship theory built on virtue ethics. I reorient
this theory to be thoroughly theocentric. A robust account of what David Kelsey calls the
“God-relation” is what makes a theory of land stewardship distinctly theocentric.1 How
God relates to human beings and how human beings relate responsively to God forms the
basis of a theocentric stewardship theory directed toward the flourishing of God’s
creatures, particularly the poor and vulnerable.
The theological virtues of faith, hope, and love are essential elements of a
theocentric stewardship theory built on an understanding of the common good and human
flourishing. Any proposal that fails to meet the aspirations of the theological virtues falls
short of relating responsively to God (and others) with faithful, hopeful, and loving
1
Kelsey, “Human Flourishing,” 12, 19. “God-relation” refers to two sets of relations: God’s
relating to human beings and human beings’ relating responsively to God. It connotes both directions. I use
“God” to refer specifically to the Triune God of Scripture, but it is open to referring generically to the
divine subject of other faiths, as well.
78
practices. In the words of Miroslav Volf, “For this, in the end, is what the Christian faith
as a prophetic religion is all about—being an instrument of God for the sake of human
flourishing, in this life and the next.”2 If human flourishing is the goal, then Christians
ought to engage broadly with others who are thinking deeply about the good, full, and
flourishing life.
PROPERTY AS HUMAN FLOURISHING
American property law scholars committed to reforming property as an
instrument of human flourishing released “A Statement of Progressive Property” in
2009.3 I take this Statement as a unifying platform for a practical proposal for property as
human flourishing (herein referred to as PHF). The Statement makes five basic
observations and points. First, “Property operates as both an idea and an institution.”
Because the common idea of property as individual control over valued resources is
“inadequate as the sole basis for resolving property conflicts or for designing property
institutions,” so it is necessary to “look to the underlying human values that property
serves and the social relationships it shapes and reflects” (1).
Second, “Property implicates plural and incommensurable values.” These include
individual interests, social interests, and interests in governing social relations with
dignity and respect (2.1). These values are not to be confused with personal preferences,
but are moral obligations that ought to be included within property rights allocations and
2
Miroslav Volf, A Public Faith: How Followers of Christ Should Serve the Common Good (Grand
Rapids: Brazos Press, 2011), 5.
3
Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer, and Laura S. Underkuffler, “A
Statement of Progressive Property,” Cornell Law Faculty Publications 11 (2009),
http://scholarship.law.cornell.edu/facpub/11. Citations in text. While not a signatory to the Statement, I also
include David Lametti among this group of scholars in light of his scholarship on property and virtue; see
Lametti, “Concept;” “Objects.”
79
judgments (2.2). Some of the cardinal values promoted by property include “life and
human flourishing, the protection of physical security, the ability to acquire knowledge
and make choices, and the freedom to live one’s life on one’s own terms,” among other
aspects of individual and social wellbeing (2.3). Pursuing these values implicates moral
and political concepts of justice and virtue, particularly humility, in relation to the effects
of property rights on others, including future generations, and on the non-human world
(2.4). These plural values implicated by property are what the Statement calls
“incommensurable,” meaning that they relate to “qualitatively distinct aspects of human
experience” that “cannot be adequately understood or analyzed through a single metric,”
such as aggregate wealth (2.5).
Third, “Choices about property entitlements are unavoidable, and, despite the
incommensurability of values, rational choice remains possible through reasoned
deliberations.” This deliberation ought to resist calculative reasoning in favor of “critical
judgment, tradition, experience, and discernment” (3). This is important because, fourth,
“Property confers power” by allocating “scarce resources that are necessary for human
life, development, and dignity.” The “equal value of each human being” requires property
laws that promote the ability of each person “to obtain the material resources necessary
for full social and political participation” (4). Lastly, “Property enables and shapes
community life.” Property law can render community relationships “either exploitative
and humiliating or liberating and ennobling. Property law should establish the framework
for a kind of social life appropriate to a free and democratic society” (5).
The Statement provides a practical proposal to reform property law and practice
toward a stewardship approach in that it includes rights and responsibilities within the
80
idea of property itself. Property, according to the statement, is an idea and an institution
that, in conferring power and shaping community life, implicates a plurality of values that
cannot be reduced to a single metric, but instead requires deliberation and judgment. It is
broadly applicable and not tied to any particular moral theory. While not explicit in the
Statement, the values motivating this particular group of legal scholars is in large
measure shaped by Judaeo-Christian history and thought.4 Singer’s work on moral
property is perhaps most explicitly tied to his Jewish faith and theological tradition.5
Peñalver, Alexander, and Lametti all self-identify within the broad tradition of
Aristotelian-Thomistic virtue theory, distinguishing theirs from Singer’s more theological
approach.6 The theoretical framework proposed by Peñalver, Alexander, and Lametti is
the most sustained and well-developed modern PHF theory, meeting the stewardship
criteria set out by Lucy and Mitchell—other-regarding, account of human flourishing,
ecological sense of justice—by referencing virtue ethics. A brief outline of their PHF
theory and the role of virtue theory in meeting the moral demands of a stewardship
account of property will lay the final groundwork for a theocentric stewardship theory of
property.
The Aristotelian notion that the good life is characterized by happiness
(eudaimonia), or flourishing, is the foundation of modern PHF theory’s substantive
conception of justice and virtue.7 Virtue theory is an agent-centered approach to
determining right action. PHF theorists take virtue theory to be a broad enough moral
framework to include within its vision “the value of personhood, the demands of liberty,
4
Singer self-identifies as Jewish, and Peñalver as Catholic.
See Singer, Edges.
6
Lametti, “Objects,” 35.
7
Alexander and Peñalver, “Properties of Community,” 129; Idem, Property Theory, 81.
5
81
and the important goal of enhanced social welfare.”8 In this way, it includes values from
the utilitarian, libertarian, and identity approaches. Being agent-centered means that it is
about duty, responsibility, and moral obligation more than it is a rights-based theory of
justice. Virtues are “acquired, stable dispositions to engage in certain characteristic
modes of behavior conducive to human flourishing.”9 The fact that these dispositions are
acquired entails a process of education in virtue through “cultivation, nurturing and
support from families, friends, and communities.”10 Human beings are taken to be social
and political animals, so there can be no pre-social, rights-bearing individuals, as in
libertarian theory. Virtue is formed by and in communities of virtue. The particular virtue
of justice, in virtue theory, is neither procedural nor rights-based, but centers on an
agent’s active participation in the community’s political life to improve the wellbeing of
her fellow citizens.11 This approach to justice is what sets it apart from both deontological
liberalism/libertarianism, on the one hand, and consequentialist utilitarianism, on the
other. Virtue theory leans away from talk about rules, for an action is considered virtuous
when it is the sort of action a virtuous person would undertake. Virtue theorists prefer to
speak of wisdom: virtuous persons seek to acquire practical wisdom and good judgment
in order to act virtuously in a given context. 12
In relation to property, a virtue theory adopts an instrumental view of property
rights as subordinate to and in service of the more basic common good of human
flourishing. For Aristotle this meant that private landownership was to support virtuous
8
Peñalver, “Land Virtues,” 50.
Alexander and Peñalver, Property Theory, 82.
10
Ibid.
11
Ibid., 82-83.
12
Peñalver, “Land Virtues,” 52. According to Vanhoozer (“A Drama-of-Redemption Model,”
173), this is the task of “improvisation”: developing judgment to know how to carry the theodrama forward
in new contexts.
9
82
citizenship, and was thus limited to citizens, while for Aquinas it meant universal
“integral human fulfillment,” a society defined by friendship and neighbor-love.13
Aristotle’s phrase “private in possession, common in use” is a metaphor for balancing the
multiple values related to property, subordinating property’s ownership to its use and
telos in achieving the common good.14 What Aristotle means by “common in use,”
however, is ambiguous and has to do with a people’s notion of “the good life.” Lametti
argues that Aquinas’s medieval clarification of this Aristotelian phrase gave it a more
explicit teleology (Christian eschatology) and code of conduct (charity). In addition,
because of his enormous influence on later natural law tradition, Aquinas represents a
crucially “important juncture in the history of property theory.”15 Otherwise stated, by
reorienting Aristotelian thought on property and human flourishing along Christian
theology, Aquinas significantly shaped property thought in Western cultural history.
Aquinas distinguishes between God’s ownership power (over nature) and human
ownership power (over use).16 The distinction means that no human right, or positive law,
could be absolute because it is always subservient to divine law—that is, God’s ultimate
ownership. This means that a human right over the use of things is not to satisfy
preferences, but rather has a normative imperative associated with divine, natural law, to
hold things “for the community,” being ready and getting them ready to share with others
in their need.17 In keeping with the patristic tradition, Aquinas acknowledges that
property is, first of all, common to all human beings and to be held as common.18 What
13
Alexander and Peñalver, Property Theory, 84-85; John Finnis, Aquinas: Moral, Political, and
Legal Theory (Oxford: Oxford University Press, 1998), 115.
14
Lametti, “Objects,” 22.
15
Ibid., 24-25.
16
Thomas Aquinas, “Summa,” II-II.66.2.
17
Ibid.
18
Ibid.
83
he means by this, however, does not preclude meeting one’s own needs. John Finnis
explains the hierarchical ordering of Aquinas’s thought on property: first, “everything one
has is ‘held as common’ in the sense that it is morally available, as a matter of right and
justice, to anyone who needs it to survive”; and second, “one’s superflua [resources
leftover after meeting one’s needs] are all ‘held in common,’ in the sense that one has a
duty of justice to dispose of them for the benefit of the poor.”19 However, this primary
common right does not rule out the possibility of private possession; any human law of
private right must be subservient to, and cannot contradict, divine law.20
As in the modern PHF theory, Aquinas’s justifications for private property are
utilitarian, based “on the advantages which such appropriation is likely to bring to all
members of the community,”21 and are not rooted in any natural property right (as in
Locke). No such right exists, according to Aquinas; neither does he give any
metaphysical argument for private appropriation based on moral desert, like Locke’s
labor theory.22 Aquinas, in short, clearly emphasizes the moral primacy of common use
on theological grounds, while he is permissive of distinctly private possession on
utilitarian grounds. Aquinas theologically reorients the Aristotelian phrase “by making
common uses those which more explicitly follow Christian imperatives as taken from
revealed texts.” 23 A society characterized by friendship and neighbor-love is one that
supports the social and material preconditions for each member’s flourishing, and “the
flourishing of each depends on the existence of political communities promoting the
common good.” Because property exists “in order to promote human well-being,
19
Finnis, Aquinas, 191.
Aquinas, “Summa,” II-II.66.2.
21
Finnis, Aquinas, 190.
22
Ibid., 189.
23
Lametti, “Objects,” 31.
20
84
property rights are (for Aquinas) subordinate to the human goods that constitute human
flourishing.”24 At root, his theory of property is a relational one that binds together land
users, all neighbors, and God within a robust theological stewardship framework.
One major element that distinguishes my account from Aquinas’s is that Aquinas
does not include the moral value of the non-human world and the duty to care for it. This
is due primarily to the interpretive lens shaped by contemporary ecological concerns. For
Aquinas, “the virtuous use of property is a social duty, in service of the common good,
and…to God.”25 Private property is unjustified apart from its capacity to achieve the ends
of virtue and the common good. While Aquinas pre-dated the language of stewardship,
the concept is present in his theory: owners must care for the resources entrusted to
them.26
Alexander and Peñalver find in this tradition of property-directed-toward-human
flourishing the foundation for a modern, nonutilitarian theory of property that can
nevertheless incorporate a utilitarian concern for consequences and social welfare,
broadly understood.27 First, a major distinction—and what makes their PHF theory
modern—is that it retreats from the explicitly theological reasoning of Aquinas back to
Aristotle’s language of the common good as whatever it is that the polis understands the
good life to be. It regresses from Thomistic teleological clarity back to Aristotelian
ambiguity. In this project they rely on Amartya Sen’s and Martha Nussbaum’s
“capabilities approach” to human flourishing that measures human wellbeing by looking
at what people are able to be and do, using “objectively valuable” patterns of human
24
Alexander and Peñalver, Property Theory, 85-86.
Lametti, “Objects,” 33.
26
Ibid., 34.
27
Alexander and Peñalver, Property Theory, 87.
25
85
existence and interaction, called “functionings.”28 The capabilities approach is not about
aggregate welfare or preference satisfaction, but instead focuses on the real opportunities,
the “substantive freedoms” and choices that individuals have in a particular society.29
Alexander and Peñalver believe that societies, including their patterns of
allocating and defining property rights, can be judged on the basis of four basic,
incommensurable, and “uncontroversial” capabilities: life, freedom, practical reason, and
affiliation/sociality.30 A society that promotes these capabilities will, in turn, form
individuals with virtuous characteristics. On the one hand, it seems that Alexander and
Peñalver seek to maintain the moral urgency and duty of Christian virtues, particularly
neighbor-love and generosity, that Aquinas adds to virtue and the common good. On the
other hand, they leave the theological element behind in favor of a capabilities approach
to human flourishing, as if the kernel could be removed from the husk. Can the universal
moral duty of neighbor-love really be separated from a theological imagination? Can an
argument for self-limitation (in favor of another’s flourishing) rely on an account that is
ultimately about the individual’s self-development? After highlighting Aquinas’s more
robust theological account of common good, Lametti similarly advocates a return to
Aristotelian ambiguity. He prefers an approach that first looks at how a particular society
values a particular object, uses it, and distributes it, and then on this basis constructs
property norms around these social patterns.31 To make the normative clause “common in
28
Alexander and Peñalver, “Properties of Community,” 136.
See Martha C. Nussbaum, Creating Capabilities: The Human Development Approach
(Cambridge, MA: The Belknap Press of Harvard University Press, 2011); Amartya Sen, Development as
Freedom (New York: Anchor Books, 1999).
30
Alexander and Peñalver, “Properties of Community,” 137-38.
31
Lametti, “Objects,” 36-37.
29
86
use” dependent on actual social practices is a failure of hope, confusing the is with the
ought to be.
Second, for modern PHF theorists to orient their theory of property toward human
flourishing, they must give some account of what it means to be human. On this point
they also prefer an Aristotelian anthropology over a Thomistic one. Humans are rational
and social creatures dependent on others for their development as capable human
beings.32 The question is whether this is a sufficient account of being human. Humans are
indeed dependent creatures, but their dependency is not only on society for their identity;
they are also dependent on God. In addition to being rational and social creatures,
humans are also worshipping, liturgical creatures. While modern PHF theory’s
communitarian anthropology is an improvement over those of the dominant property
theories, it is ultimately a failure of faith. For it fails to account for the spiritual
aspirations of human beings, their dependency on God for identity, and their functional
anthropology as creatures who, in imaging God to the rest of creation, worship (or fail to
worship) God. It is a failure of faith in that it is a failure of trusting and depending on
God for one’s being, identity, and purpose.
A third critique of the modern PHF theory is related to the Thomistic notion of the
common good as a society characterized by neighborly friendship and neighbor-love. If
my flourishing is dependent on others and I therefore seek the flourishing of others for
what is ultimately an interest in my flourishing, then is it love? Or have Alexander and
Peñalver gone around the block only to return to self-interest by another name? If the
duty to love one’s neighbor as oneself is not theologically derived, then what basis do
modern PHF theorists propose? They prefer to write of a universal human “entitlement”
32
Alexander and Peñalver, Property Theory, 87, 90-91.
87
to flourish and to those things that are essential for human flourishing. They ground this
universal entitlement in human dignity.33 The key word is entitlement; for virtue theory is
highly suspect of the language of rights. Who, then, entitles all human beings to flourish?
The community entitles all human beings to flourish—has an obligation for their
flourishing—in order to avoid self-contradiction: “If an individual, as a rational moral
agent, values her own flourishing, then to avoid self-contradiction, she must appreciate
the value of others as well.”34 Because a commitment to develop one’s own capabilities is
derived from her being a rational moral agent,
rationality constrains each of us to acknowledge the right of every other
human being . . . to develop the same capabilities . . . . Because we value
the development of the capabilities of others just as we do our own, we are
obligated, under certain circumstances, to foster their development.35
In relation to social structures and natural environments: there is an obligation to
contribute to their vitality on the basis that these social and ecological structures
necessarily have a formative impact on human capabilities.36 This obligation includes
sharing one’s resources, limiting one’s (property) rights, and participating in community
life in ways that foster the flourishing of others. In a Thomistic turn, then, the social
image Alexander and Peñalver employ is of a well-functioning family, among which
some members have and give more while others need and receive more. What holds this
social institution together, they claim, is a “rough reciprocity” among its constituent
members.37 This familial social vision is not unlike Aquinas’s society of friends held
together by bonds of neighborly love.
33
Alexander and Peñalver, “Properties of Community,” 140-41.
Ibid., 141-42.
35
Ibid., 142.
36
Alexander and Peñalver, Property Theory, 92.
37
Ibid.
34
88
This third critique is not directed at Alexander and Peñalver’s social vision, but at
the way in which they ground other-obligation in a weak translation of the Christian
virtue of love. To think that rational consistency is a strong enough foundation to ground
other-regarding behavior, particularly when that entails self-limiting behavior, is naïve, at
best. More importantly, this assumption overlooks the consequences of human sin. The
Augustinian notion that human desires are disordered by humanity’s postlapsarian
condition entails recognition that human beings do not, in fact, care so much about
rational consistency as they do about that which they worship/desire.38 Human loves are
disordered and point toward something other than God, which is idolatry. This is to say
that no basis of other-regard (love) can overlook the consequences of sin: estrangement
from God, self, and others. Caring for others—to the point of self-sacrifice—in order to
be rationally consistent is a misunderstanding of love. What is more, the argument for
other-regard (and thus regard for social structures that form those others) on the basis of
one’s own flourishing is also a shallow translation of love: love always involves some
level of suffering and sacrifice.39 An emphasis on other-regard’s positive social aspect—
to support social structures that form virtuous individuals—cannot also overlook love’s
sacrifice and its vulnerability to loss. All love, and likewise all worship, involves
suffering and sacrifice. For these reasons, the modern PHF theory of property is a failure
of love.
In conclusion, a human flourishing theory of property built on virtue does not
account for an obligation thick enough to achieve the common good without the
theological virtues of faith, hope, and love. Love cannot be replaced by entitlement
38
Augustine, City of God, trans. Gerald Walsh, Demetrius Zema, Grace Monahan, and Daniel
Honan (New York: Image Books, 1958), 19.24-26 [478-80].
39
See Wolterstorff, Justice, 205, 207-226.
89
without remainder, just as faith cannot be replaced by community, and hope cannot be
replaced by social convention. The fact that a eudaimonistic virtue theory is agentoriented makes it insufficient to account for that which is due a person on account of her
worth. It ultimately fails to account for the recipient-dimension of justice. Eudaimonia is
literally “happiness,” but it refers to what ancient and more recent philosophers define as
the good life. The good life, for eudaimonists (virtue theorists), is the well-lived life.40
Eudaimonism brings to speech the agent-dimension of virtue (living well), but fails to
bring to speech the recipient-dimension (faring well).41
Eudaimonism’s failure emerges from the idea of being wronged. In a
eudaimonistic, agent-oriented approach it is not the recipient (the victim) of wrong
actions who is wronged, but some abstract moral order. Wrongs, for eudaimonists, are
failures to live up to the moral order, not failures to treat a human being in a way that he
ought to be treated by virtue of his being human.42 In the case at hand, the recipientdimension proposed by modern PHF theorists is based on an other-regard severed from
theology, and is thus unable ultimately to ground a theory of justice. According to
Wolterstorff, it took Augustine’s break with classical eudaimonism, on the basis of
Scripture’s moral vision, to make way for an account of the good life that would
incorporate all of the goods to which human beings have rights, including their living
well and their lives going well.43 Rights to life-goods, not as immunities but as normative
40
Wolterstorff, Justice, 149-50.
Some virtue theorists will account for human rights only in the sense that they are understood as
the reverse of obligations. However, a theory of rights rooted in obligations is eudaimonistic because its
other-regard is rooted in the agent’s obligation rather than the recipient’s worth as a human being.
42
Wolterstorff, Justice, 43. Wolterstorff also convincingly argues that forgiveness is not possible
when it is not human beings who are wronged. Moral orders do not forgive people for being wronged,
people do. Therefore justice and forgiveness both require a recipient-dimension.
43
Ibid., 145, 180-206. By “going well” I refer to the experience of being loved, being valued, and
having hope.
41
90
social relationships deriving from the moral vision of shalom, are simply what human
beings, by virtue of their worth in relation to God, require. Contemporary agent-oriented
virtue theories are no exception to Wolterstorff’s charge. The recent revival of virtue
theory is a welcome rebuff to interest-based theories of the good life as the experientially
satisfying life. However, eudaimonism cannot ground an understanding of human
flourishing and common good adequate to God’s theodramatic mission to creation or to
faithful improvisation within it. I now turn, therefore, to theological understandings of
stewardship and human flourishing with the goal of reviving and reworking PHF, in the
tradition of Aquinas, for a theory of theocentric stewardship.
BENDING PROPERTY IN FAITH, HOPE, AND LOVE
The utilitarian and libertarian theories of landownership both render an integral
function of property, whether that is to increase social welfare or to promote human
freedom, respectively. The identity theory emphasizes property’s psychological function:
to form identity and personality. Stewardship theory adds both a greater set of values
(human wellbeing, justice, health) and moral agents (people on the margins, future
generations, and non-human creatures). The modern PHF model is the most compelling
and comprehensive stewardship theory in contemporary property scholarship. It
integrates plural and incommensurable human values with an understanding of property
as an institution that reflects and serves virtue and the development of virtue. This
modern PHF framework overlaps with a theocentric stewardship model. However, its
reliance on Aristotelian virtue ethics, including its eudaimonistic account of human
flourishing as the well-lived life, distinguishes it from a theocentric account. Modern
91
PHF provides an adequate framework, but its moral theory lacks the grounding and
teleology for a theocentric account. It lacks, in short, an outworking of the God-relation:
the shape of human flourishing in light of how God relates to human beings and how
human beings relate responsively to God.
Property is enmeshed within and mediates a set of property relations: among
owners, other human beings (including the socio-economically marginal and future
generations), communities, and the non-human creation. In this sense, property implicates
human relations with all creaturely life. I take this to be the proper domain in which to
speak of “human wellbeing” as a metric of various kinds of health and healthy relations
among God’s creatures, including physical, emotional, psychological, ecological, social,
economic, political, and other measurable indicators of health.44 Whereas I take
flourishing to refer to the unquantifiable theological virtues, wellbeing refers to
measurable indicators of healthy creaturely life.
To the intensely relational institution of property the primary resource that
theology adds is an understanding of the God-relation that, for Christians, sets all other
property relations in perspective. This theological angle should not replace or reject the
other relations implicated by property, but rather put them in theodramatic perspective.
The implications of this God-human relation are the proper domain of “human
flourishing,” theocentrically construed. It is an outworking of Irenaeus’s apt phrase that
“the glory of God is human beings made fully alive.”45 What distinguishes “human
wellbeing” from “human flourishing,” on this account, is that one’s flourishing is not
dependent upon one’s wellbeing, even if wellbeing is closely associated with one’s being
44
See Kelsey, “Human Flourishing,” 8-15. The Human Development Index, the Gini coefficient,
the Gross National Happiness index, and other tools can quantify, measure, and compare wellbeing.
45
Kelsey, “Human Flourishing,” 2, 19-20.
92
“fully alive.” One whose life has not gone well can, by God’s grace, still be fully alive to
God and others in faith, hope, and love. Conversely, one whose wellbeing is secure,
whose human needs are met—psychological, physical, social, and other types of health—
can fail to flourish by relating inappropriately to God in malfunctions of faith, hope, or
love. However, too clearly severing flourishing from wellbeing is precarious. Whereas
wellbeing can be quantified and measured, flourishing refers to a subjective state of
enjoying being fully alive. The link between the two is that a person who flourishes is
one who, in relating appropriately, delightfully, and responsively to God, voluntarily
engages in practices that seek the wellbeing of others. By seeking another’s wellbeing,
the recipient can experience that she is loved, that her worth is inestimable, and that there
is reason to hope in spite of her circumstances.
A theocentric stewardship approach ought to be developed in conversation with
existing theories and paradigms. To that end, I borrow from and bend the wisdom of PHF
theory along the God-relation, including its implications for human flourishing. The Godrelation is the reference point for theocentric stewardship because it is also the reference
point for a theological account of human flourishing. No Christian approach to human
flourishing is complete without explicit reference to this most fundamental relation.
God’s relating to human creatures to create them, reconcile them when they are
estranged, and draw them toward eschatological consummation, and their relating
responsively to God in faith, hope, and love sets a foundation for the moral theory that
coheres with a theocentric stewardship theory of property.
93
I take this borrow-and-bend method of theological analysis from David Kelsey.46
Kelsey understands the history of theological anthropology as one in which Christians
conversed with their non-Christian host cultures to grapple with what it meant to be
human.47 To that end they borrowed and bent the anthropological wisdom of their day in
particular patterns:
What has Christian faith to add to Christianly borrowed anthropological
wisdom? . . . What Christians claim about humankind that nobody else
does is that the triune God relates to humankind, and to all else, to create
it, to draw it to eschatological consummation, and when it is estranged, to
reconcile it.48
What Christians add to borrowed wisdom is theocentricity, the unique ways in which the
God of Scripture relates to creation. Kelsey continues, “It is under the conceptual
pressure of claims about divine relating that borrowed anthropological conceptualities are
theologically bent.”49 A properly theological approach to property, then, will bend the
best contemporary wisdom along the theological angle, taking the status of property
relations as a barometer of faith, hope, and love, and then improvise with faithful,
hopeful, and loving property practices.
God relates to human beings (and the rest of God’s creation) in three ways that
accord with the theodrama: creating, drawing to eschatological consummation, and
reconciling estranged creatures. The manner in which these three ways of divine relating
cohere and the order in which they unfold is contested. Kelsey, fearing that in telling
46
I specifically borrow this method from Kelsey’s paper at the 2008 Consultation on “God’s
Power and Human Flourishing” at the Yale Center for Faith and Culture, in association with the Yale
Divinity School, on May 23-24, 2008. Kelsey also goes into much more detail in his magisterial work
Eccentric Existence: A Theological Anthropology (Louisville: Westminster John Knox Press, 2009).
47
David Kelsey, “Personal Bodies: A Theological Anthropological Proposal,” in Personal Identity
in Theological Perspective, eds. Richard Lints, Michael S. Horton, and Mark R. Talbot (Grand Rapids:
W.B. Eerdmans, 2006), 140-41.
48
Ibid., 142.
49
Ibid. (emphasis mine).
94
them as successive moments in a serial narrative they too often get confused and
distorted, prefers to speak of these as three distinguishable narratives, each with their own
logic, “braided together” and “resonating” with one another.50 They should be told
together “in ways that weave them inseparably together while honoring their different
and distinct narrative logics.”51 While Kelsey is right to caution overly unified (and
confused) versions of the theodrama, it is not necessary to speak of three distinct
narratives to take advantage of the theological insight that his schematic provides. It is
sufficient to speak of three complexly related yet, for the purpose of understanding,
distinguishable ways in which God relates. If the theodrama is taken as one whole,
complex narrative rendered by canonical Scripture, and if, for purposes of understanding,
the unique character of these three basic ways in which God relates are distinguished,
then the requisite complexity of divine relating has been included within a unified
narrative structure.52
I intend to avoid two poles. The first pole to avoid is to confuse and distort the
ways in which God relates to creation, as in, for instance, attributing salvific grace to
God’s creative relating or by making eschatological human ends (the glory of God)
dependent on a prior self-estrangement by sin. Rather, God actively and continually
relates to human beings (and the rest of creation) in all three ways: to create them, to
draw them to eschatological consummation, and to reconcile them when they are
estranged. The second pole I intend to avoid is to lose the (albeit complex) unity of
Scripture, God, and God’s theodramatic mission in a cacophony of diverse, conflicting,
50
Ibid., 143-44.
Ibid., 148.
52
Because language used to describe God is analogical in nature, implicit in the following is the
humility appropriate to a human creature stretching language to describe theology’s subject.
51
95
and ultimately incoherent voices. This is the danger of fragmentation, particularly
fragmentation of an understanding of the triune God and the perichoretic relations that
characterize the Godhead. Father, Son, and Spirit are at work in all three ways of relating,
but each way can be primarily attributable to the distinctive work of one person of the
Godhead.
By “God-relation” I refer to two basic ways in which human beings and God
relate: God relates to human beings and human beings relate responsively to God.53 The
language of relating connotes a level of being both “other than” and yet “intimately
involved with.”54 God relates to human beings in three ways—creating, drawing, and
reconciling—and human beings relate to God responsively, whether or not they intend it
as such, “in their exercise of all their powers.”55 In this sense, God’s relating is logically
prior to human responsive relating to God. Nothing human beings do will stop God’s
relating to them, but they do have something to do with how they exercise their Godgiven powers in relating responsively to God, even if those powers or capacities are
different for different people.56 What Kelsey calls “type A” human flourishing has to do
with God’s relating to human beings, while “type B” human flourishing has to do with
humans relating to God.57 The advantages of this relational schematic are multiple: to
highlight the active and ongoing dimension of God-human relations; to capture the
interrelationship between Christian doctrine and Christian improvisation; to hold together
both God’s actively willing human flourishing and humanity’s role in their own (and
53
Kelsey, “Human Flourishing,” 19.
Ibid., 22.
55
Ibid.
56
This avoids the problems associated with attempting to find some one or a few basic powers or
capacities that make human beings distinctly human. Ontological accounts of human being fall short of
casting a net wide enough to include those human beings who have limited capacities or powers.
57
Kelsey, “Human Flourishing,” 21.
54
96
others’) flourishing; and to conceptualize a distinctly Christian life as one defined by the
theological virtues of faith, hope, and love.
God’s relating to human creatures creatively is primarily the distinctive work
attributable to the Father, through the Son, and in the power of the Spirit. It deals
primarily with the doctrine of creation and has to do with a fundamental human need for
meaning and truth.58 In a “type A” sense, God is glorified simply in humans being
creatures to whom God relates creatively. This forms the basis of human beings’
unconditional value and human dignity, even when that dignity is not respected by
others.59 In the language of property, humans belong to God, their creator. In a “type B”
sense, human beings flourish by appropriately and responsively relating to God in faith
and in faithful practices, trusting God as the ground of their being and value, and being
loyal to God’s creative project.60 Loyalty to God’s creative project includes a
commitment to the wellbeing of God’s creatures. Creaturely status is the basis not only
for dignity and wellbeing, but also for valuation. In contrast to a utilitarian process of
valuation in which the value of a thing derives from what someone is willing to pay for it
in the market, a faithful valuation practice values things in relation to how they are used
in service to God’s creative project. This is the difference between exchange value and
use value, and it forms the basis of Aquinas’s economic teaching on the priority of use
value.61 Value is in how things are used toward God’s theodramatic mission. In relation
to identity, it may be accurate to say that property partly constitutes one’s identity, but it
58
James Davison Hunter, To Change the World: The Irony, Tragedy, and Possibility of
Christianity in the Late Modern World (New York: Oxford University Press, 2010), 262.
59
Kelsey, “Human Flourishing,” 25-26. This is also the basis upon which Wolterstorff constructs
his theocentric grounding of human rights in Justice, 342-61.
60
Kelsey, “Human Flourishing,” 26.
61
Christopher Franks, He Became Poor: The Poverty of Christ and Aquinas’s Economic Teaching
(Grand Rapids: W.B. Eerdmans, 2009), 28-29.
97
is also accurate to say that there is a degree of identity already basic in the notion of being
God’s creature. Thus individual or communal identity formation as in process, or open,
also ought to be grounded in the givenness of creaturely identity. Theological
anthropology is both given and open, established and in formation. It is at this level that a
number of Christian theologians’ attempts to replace the language of rights with some
notion of “nonproprietary community” of self-giving fails to adequately respect what
inestimable human worth, rooted in the doctrine of creation, deserves.62
God’s relating to human creatures to draw them to eschatological consummation
is primarily the distinctive work attributable to the Spirit, sent by the Father, with the
Son. This deals with the doctrine of eschatology and a fundamental human need for
purpose and beauty.63 It is a tension of the “already inaugurated” and the “not yet fully
actualized” of God’s kingly rule.64 Human beings are in process: they are moving toward
a telos. In a “type A” sense, humans flourish by virtue of the grace of being drawn toward
God’s Kingdom.65 This also means deep ambiguities in human experience that tend to
lead human beings toward resolving the tension. Humans tend toward two types of traps:
one is being triumphalist (failing to live in the “not yet”) or futurist (failing to live in the
“already”), and the other is rooting practices in optimism (“we have what we need to
change the world for better”) or presumption (“we are building the Kingdom”).66 In a
“type B” sense, human beings flourish by appropriately and responsively relating to God
62
See, for instance, Joan O’Donovan, “Natural Law and Perfect Community: Contributions of
Christian Platonism to Political Theory,” Modern Theology 14, no. 1 (January 1998): 19-42.
63
Hunter, To Change the World, 263.
64
Kelsey, “Human Flourishing,” 31-32.
65
Ibid., 32-33.
66
Ibid., 34.
98
in hope and in hopeful practices rooted in the resurrection, signaling God’s ultimate
power and rule even in spite of evidence to the contrary.67
Hopeful practices involve seeing and engaging existing power structures in light
of the power structure of God’s Kingdom, working to reform unjust and oppressive
structures, ending hostilities, and forming communities marked by Christian fellowship
and love.68 Failures of hope abound in the realm of property, among them the twentiethcentury’s warring ideologies—communism and capitalism—that promised to establish
peaceful human relations on earth. Economic neoliberalism may be a new form of
imperial ideology in which individual self-interest is supposedly transformed into
prosperity and growth for all. Placing one’s hope in any human construct, such as the
market, to establish peaceful human relations is a failure of Christian hope. In this age of
empiricism, another failure of hope is to fall into the trap of confusing the is with the
ought. I have argued that PHF theorists rely on a conception of the common good that
takes human conventional practices with respect to land to be normative. Property-related
practices rooted in the hope of the resurrection and the coming Kingdom cannot afford to
resolve the tension, but must live with it. In McCloskey’s words, “The mistake is to think
that the relevant mental experiment is that tomorrow, suddenly, without warning, we all
begin to follow Jesus in what we buy.”69 Could such a mental experiment be useful? Yes,
one can hope for this, but one cannot expect to bring about this state of affairs. This
means understanding and making room for self-interested human behavior within an
understanding of property relations, but doing so within a framework in which other
67
Ibid., 33.
Similar to Hunter’s “faithful presence” in To Change the World, the difference between hope
and optimism has to do with motivations (faithfulness vs. effectiveness) and with responses to failure
(perseverance vs. despair).
69
McCloskey, “Avarice,” 321.
68
99
values, such as love and justice, matter as well. McCloskey argues, for instance, that
commercial relations can actually further other-regarding behavior since one’s livelihood
is caught up in satisfying the needs and desires of others through trade.70 Theological
engagement with economics should not resolve the tension between is and ought.
Finally, God’s relating to human beings to reconcile them to God when they are
estranged from God is primarily the distinctive work attributable to the Son, sent by the
Father, in the power of the Spirit. This primarily deals with the doctrines of soteriology
and incarnation, as well as a fundamental human need for belonging, grace, mercy, and
justice.71 This way of God’s relating is specifically in the face of human rejection of God.
It is the concrete manifestation of God’s love in the incarnation, life, and death of Jesus to
reconcile humans to the Father, a status they have “in Christ.”72 In a “type A” sense,
humans flourish in that they are freed from the self-destructive consequences of sin:
estrangement from God, one another, and themselves.73 In a “type B” sense, humans
flourish by appropriately and responsively relating to God in love and loving practices.
Here, love is a reflection of God’s agape in a double love of both God and neighbor (in a
neighborly sort of love).74 The agapic love that humans are to reflect is “God’s
passionate desire to be in communion with human creatures in a solidarity with them as
one among them even when they are estranged from God, one another, and themselves,”
and even when this means solidarity in the consequences of their sin.75 Relating lovingly
to God and neighbors, then, ought to manifest this passion for communion in the midst of
70
Ibid., 316-17.
Hunter, To Change the World, 263.
72
Kelsey, “Human Flourishing,” 37.
73
Ibid., 38.
74
Ibid., 39. See also Lk. 10:25-37.
75
Ibid., 39-40.
71
100
a shared human predicament. Human worship and desire for God are enactments of love
to God. Enactments of neighbor-love include sustaining, strengthening, and consoling
fellow human creatures with whom one shares estrangements. This includes seeking
another’s wellbeing through justice. Because human love cannot reconcile others to God,
one loves neighbors as one in solidarity with them.76 There are a number of propertyrelated failures of love, including the failures of the individualistic theories to give other
human beings a proper place within a theory of property and within the allocation of land
rights. In a different direction, the modern PHF theorists fall short of translating
neighbor-love into the non-confessional language of a duty that is owed to one another in
light of each person’s social dependence for self-development.
The virtue of employing Kelsey’s schematic to a property-theory-directed-towardhuman-flourishing turns on what I take to be a primary cause of contemporary property’s
failings: the dominant theories that underlie property today are built on an insufficient
understanding of both what it means to be human and what it means to be “fully alive.”
Human flourishing, theologically construed, is about the ends of being human, which are
found in being “fully alive” to God and others in faith, hope, and love. The God-relation
is not an irrelevant factor in shaping human relations to the land and to all other creatures
through their relation to the land. While the modern PHF theory is an improvement over
the dominant paradigms, its commitment to virtue theory is its limitation. A theory of
property as human flourishing cannot excise what Aquinas calls the three “theological
virtues” of faith, hope, and love. They are “theological virtues” specifically because,
unlike the other virtues, their object is “God Himself, Who is the last end of all.”77 What
76
77
Ibid., 42.
Aquinas, “Summa,” II-I.62.2.
101
is unique to them alone as theological virtues is that they enable human beings to go
beyond their ordinary capacities (to achieve happiness/eudaimonia) and to be directed
toward a “supernatural end,” a “supernatural happiness.”78 Aquinas clarifies that faith,
hope, and love are virtues of a special sort: they have power to direct humans beyond the
realm of what they know and can achieve and into the realm of the things of God,
including the extraordinary happiness (flourishing) of divine communion.
In relating to God in faith, hope, and love—along with the implications of this
relating in faithful, hopeful, and loving practices—human beings participate in their own
flourishing at the same time as they participate in God’s theodramatic mission to creation.
One’s flourishing is thus caught up in helping others to flourish. Miroslav Volf asks when
it is that humans flourish. “We lead our lives well when we love God with our whole
being and when we love our neighbors as we (properly) love ourselves. Life goes well for
us when our basic needs are met and when we experience that we are loved by God and
by our neighbors.”79 Faithful, hopeful, and loving practices cannot achieve a neighbor’s
flourishing, but they will aim at such flourishing by seeking a neighbor’s wellbeing
(understood as having human needs met and having various types of health: social,
political, economic, cultural, psychological, spiritual, ecological, and emotional). For in
seeking a neighbor’s wellbeing she can experience that she is loved, that she is valuable,
and that there is reason to have hope in this life. To be loved in spite of estrangement, to
be valued simply for being one of God’s human creatures, and to be given reason to hope
in spite of circumstances is to be put on the path toward human flourishing. Experiencing
these things is constitutive of the flourishing life, theologically construed.
78
79
Aquinas, “Summa,” II-I.62.3.
Volf, Public Faith, 72.
102
Human beings cannot reconcile others to God, themselves, their neighbors, or
their natural environments, but they can participate in loving solidarity as fellow
estranged-yet-reconciled creatures. They cannot engage deeply entrenched and unjust
power structures out of an optimism that relies on results, but they can seek the
transformation of unjust structures that cause suffering in hope that God’s Kingdom is
indeed at hand. Humans cannot trust in human constructs, such as culture, law, or
academics, to lead them into better patterns of thought and valuation, but they can, with
creaturely humility, create forms of culture, law, and academics in loyalty to God’s
creative and life-affirming project. This is why the theological virtues are what Christians
have to add to contemporary wisdom on property as human flourishing. Human beings
are most “fully alive” when they relate to God in faith, hope, and love, and seek their
neighbors’ wellbeing in faithful, hopeful, and loving practices.
The differences between human flourishing and human wellbeing are important,
but ought never to be severed such that the theological virtues come to signify that it is
only one’s “soul” that matters, as if soul and body were separable parts. Human
flourishing assumes a more complex anthropology in which practices, beliefs, identity,
desires, and imagination are all bound up together and shaped by one another. One way
to state this is to say that humans are homo liturgicus (liturgical beings); that is, they are
“embodied, practicing creatures whose love/desire is aimed at something ultimate.” This
aiming of desire takes place through a process of formation. “We are what we love, and
our love is shaped, primed, and aimed by liturgical practices that take hold of our gut and
aim our heart to certain ends.”80 For this reason, it is not that one must first acquire faith,
hope, and love before she can engage in faithful, hopeful, and loving practices. Being
80
Smith, Desiring the Kingdom, 40.
103
liturgical animals means that, to some degree, her faith, hope, and love will only develop
and grow as she engages in faithful, hopeful, and loving practices. Human flourishing
involves exercising these theological virtues.
Wolterstorff makes a distinction that is of a similar sort as the one I have made
between wellbeing and flourishing. In distinguishing between justice and shalom, he says
that while they are not the same, they are intertwined. “In shalom, each person enjoys
justice, enjoys his or her rights. There is no shalom without justice. But shalom goes
beyond justice.” 81 Enjoyment of shalom is the subjective aspect that transcends justice.
What is more, the vision of shalom is, like human flourishing, about more than social
relationships. It is also about how social relationships are intertwined within an ethical,
responsible, and delightful community: “To dwell in shalom is to enjoy living before
God, to enjoy living in one’s physical surroundings, to enjoy living with one’s fellows, to
enjoy life with oneself.”82 Justice can set social relationships aright, but it cannot in itself
ensure that one enjoys her relationships. Enjoyment cannot be coerced, but is ultimately
caught up in spiritual enjoyment of communion with God. Justice, according to
Wolterstorff, is a minimum requirement for shalom. There can be no delight in a
community where human beings oppress one another.83 While I have argued that it would
be incorrect to say that there can be no flourishing where there is no wellbeing, wellbeing
is a measurable and achievable ground floor of human flourishing. Wellbeing is how
humans experience that they are loved and valued and that there is reason to hope.
Whereas one cannot achieve another’s flourishing, one can engage in practices that seek
81
Wolterstorff, Justice and Peace, 69.
Ibid., 70.
83
Ibid.
82
104
another’s whole-person wellbeing in the hope that the recipient will be drawn closer to a
fully alive relation to God in faith, hope, and love.84
A logical conclusion to draw from this theocentric account of human flourishing
is that, of the Aristotelian, Thomistic, and modern human flourishing theories of property
thus far explored, Aquinas’s is the only one in which property is meant to serve human
flourishing, theocentrically construed. To state it differently, a virtue theory is theocentric
only when the theological virtues of faith, hope, and love are taken to be constitutive of
the well-lived life. For Aquinas, this is how the Aristotelian phrase “private in possession,
common in use” is to be theologically bent. The Aristotelian and modern PHF theories of
property both aim to allocate property rights in accordance with a common good that
favors the development of virtue or human capabilities. In terms of the theological
account of human flourishing above, however, they are property theories in service of
wellbeing, not necessarily flourishing, for they do not aim at one’s restored relationship
with God. According to my criteria, Aquinas’s theory of property is a human flourishing
theory of property because it reorients the allocation of property rights in relation to
God’s purposes. Landowners are stewards: “each one is entrusted with the stewardship of
his own things, so that out of them he may come to the aid of those who are in need.”85
For instance, Aquinas holds so closely to the theological virtues that he even justifies
theft on the grounds that it meets a dire need.86 By enjoying right relation to God in faith,
hope, and love, human beings are fully alive also to themselves, to their neighbors
(through time), and to the non-human creation, seeking the wellbeing of their neighbors
and praying for their full life of faith, hope, and love.
84
These practices include the proclamation of the good news of the gospel.
Aquinas, “Summa,” II-I.62.7.
86
Ibid.
85
105
Each of the contemporary theories of property aim at some version of the good
life. Based on what the good life is taken to be, each theory justifies particular allocations
and patterns of property rights. Wolterstorff identifies three understandings of the good
life in historically Western thought.87 One is the conception of the good life as the
experientially satisfying life, which gained prominence during the modern era. This is the
conception that underlies both of the dominant, interest-based theories of property. The
second is the good life as the happy life (eudaimonism), which is the life that is lived
well. A well-lived life is a life that lives up to a standard; it is a virtuous life. The modern
PHF theory structures property around this eudaimonistic conception of the good life.
Regard for others is understood as an obligation of virtue. The third is what Wolterstorff
calls the good life as the flourishing life (eirenéism), which is the life that is both lived
well and goes well. The flourishing life is both the life that seeks to live well—by
developing virtues, including the theological virtues—as well as the life that experiences
being loved, being treated with dignity, and being given reason to hope.88
By this analysis, the modern PHF theory of Alexander, Peñalver, and Lametti is a
human wellbeing theory of property. Modern PHF aims to structure property
arrangements that allow all human beings to acquire the capabilities necessary for them
to develop virtues and live well. The theocentric model of property that I develop in this
thesis coheres with their practical project outlined in the Statement of Progressive
Property. What it adds to their project is the theological virtues of faith, hope, and love as
the basis of right relation to God and to God’s creatures. To PHF’s agent-dimension of
virtue I add the recipient-dimension of justice. In addition to structuring property to
87
88
relating.
Wolterstorff, Justice, 145.
By this account, the church can be an instrument of God’s creative, loving, and consummative
106
promote human capabilities and the development of virtue, a theocentric approach will
also structure property around a theory of social justice grounded in human rights as
normative social relationships, as well as a theory of ecological justice grounded in
normative ecological relationships. Having established the terms of dialogue, then, what
is unique to a theocentric theory of property is the goal toward which it is directed:
property stewards are the ones who either use (or fail to use) property relations in pursuit
of shalom.
THEOCENTRIC STEWARDSHIP
The link between human flourishing and property runs through the land steward.
Because property is an intensely relational institution, landholders actively relate to the
land and, through the land, to all other creatures, human and non-human. Therefore, the
normative question of how human beings ought to relate to the rest of creation is integral
to a theocentric stewardship theory of property. Stewardship is not, in the first instance, a
concept, but rather connotes an activity in which landholding is practiced and land rights
are allocated in legal or cultural ways. Stewardship emphasizes what property does by
how it is used. It is an instance in which an active relation to land implicates one in a
pattern of active relations with neighbors and with the non-human creation in ways that
reflect (or fail to reflect) faith, hope, and love.
There are three directions toward which to look for stewardship resources. One is
to history. This is perhaps why a large portion of contemporary theological engagement
with property tends to draw heavily from Augustine, Aquinas, and the Franciscans.89
89
See, for instance, the compilation Having: Property and Possession in Religious and Social
Life, eds. William Schweiker and Charles Mathewes (Grand Rapids: W.B. Eerdmans, 2004); Kelly S.
107
These highly influential thinkers grappled to theologically understand the ways that
human beings ought to relate to the non-human creation. The virtue of looking to
Christian history is to understand property relations prior to the ascendancy of interestbased property theories. A second direction is to look to the margins, particularly to
contexts with relatively little economic or political power, to understand other forms of
social arrangement.90 Informal or customary property arrangements can demonstrate how
various communities relate to and through the land in ways that include other values (e.g.
honor, family, patriarchy, identity) and moral actors (e.g., deities, ancestors, the land
itself) within the idea of property.91 Christians also have a third direction toward which to
look for resources: Scripture. What role did the land relation play in the faith of Israel?
How did their relation to land relate them to other Israelites, to non-Israelites, to widows
and orphans, to Yahweh?92 Due to the limitations of this thesis, and the conviction that it
is the interest-based paradigms historically associated with Euro-American modernity
that need critiquing, my engagement with stewardship is primarily with Western
Christian thought.
Johnson, The Fear of Beggars: Stewardship and Poverty in Christian Ethics (Grand Rapids: W.B.
Eerdmans, 2007); Andrew Lustig, “Property, Justice, and the Common Good.” Journal of Religious Ethics
21, no. 1 (1993): 185, accessed April 5, 2011, http://www.jstor.org/stable/40018149; Paul Babie. “Two
Voices.”
90
See, for instance, John Milbank, “Can a Gift Be Given?,” Modern Theology 11, no. 1 (January
1995): 119-61; or Stephen Webb, The Gifting God (Oxford: Oxford University Press, 1996). It is also no
coincidence that the New Agrarians have written from marginal corners of the United States—Wendell
Berry from Kentucky and Aldo Leopold from New Mexico.
91
See Property in Question: Value Transformation in the Global Economy, eds. Katherine
Verdery & Caroline Humphrey (New York: Berg, 2004); Land and the Politics of Belonging in West
Africa, eds. Richard Kuba and Carola Lentz (Boston: Brill, 2006). There is very little theological
engagement with non-Western property systems.
92
A number of Old Testament scholars have pursued this line of inquiry. See, for instance,
Christopher J. H. Wright, God’s People in God’s Land; Old Testament Ethics for the People of God;
Walter Brueggemann, The Land: Place as Gift, Promise, and Challenge in Biblical Faith; or Ellen F.
Davis, Scripture, Culture, and Agriculture: An Agrarian Reading of the Bible (New York: Cambridge
University Press, 2009).
108
The language of “stewardship” is a product of modernity, but the idea of holding
land on behalf of another and for the benefit of others is prevalent throughout Christian
history as an outworking of the word dominion in Genesis. Stewardship has been a way
to reconcile two realities: “the earth is the Lord’s”93 and yet “the earth he has given to
humankind.”94 Christopher Wright calls this a biblical theology of “divine gift” and
“divine ownership.”95 Land rights derive from God’s giving the earth to human beings,
while land responsibilities derive from God’s ownership of the earth. In a similar sense,
there is significant consensus in Christian thought around the idea that any sense of
human power over land—private or otherwise—is subordinate to a more primary sense of
God’s ultimate ownership.96 Whether Augustine’s distinction between “using” (uti) and
“enjoying” (frui) things,97 Aquinas’s distinction between “dominion over nature”
(dominium directum) and “dominion over use” (dominium utile),98 or the Franciscans’
distinction between “ownership rights” and “use rights,”99 human powers over things
have been understood to come under God’s ultimate ownership.
Because human powers over land have been understood in light of God’s ultimate
right, Christian thinking has tended to focus on the proper uses of property in accordance
with God’s will. The form in which property ought to be held—private, public,
common—has not enjoyed such wide consensus. Neither has the notion of what the
93
Ps. 24:1, but so also in Dt. 10:14 and Lev. 25:23.
Ps. 115:16, but also throughout the development of the promise to and covenant with Abraham
and his descendents.
95
Wright, Old Testament Ethics, 85-96.
96
See Garnsey, Thinking About Property.
97
Charles Mathewes, “On Using the World,” in Having: Property and Possession in Religious
and Social Life, eds. William Schweiker and Charles Mathewes (Grand Rapids: W.B. Eerdmans, 2004),
202. This Augustinian notion is also echoed by Aquinas. See Anthony Parel, “Aquinas’s Theory of
Property,” in Theories of Property: Aristotle to the Present, eds. Anthony Parel and Thomas Flanagan
(Waterloo, ON: Wilfrid Laurier University Press, 1979), 93.
98
Parel, “Aquinas’s Theory,” 96-97.
99
See Peter Garnsey, Thinking About Property; Joan and Oliver O’Donovan, Bonds of
Imperfection.
94
109
proper uses of property should be. Regardless of form and proper uses, human dominion
over land, theologically understood, has been seen as penultimate at best. This is why I
appropriate the language of stewardship to refer to human vocation in relation to the land
and to others through the land: land is both gift (i.e., it comes with rights) and trust (i.e. it
comes with responsibilities). Stewardship, unlike “ownership” as it is most commonly
used, includes rights and responsibilities within its very definition. A steward’s
responsibilities derive from the ultimate owner’s purposes for her possession. In contrast,
ownership emphasizes the owner’s relation to the thing possessed, including whatever
right or bundle of rights characterizes that relation. I have argued that the language of
ownership advantages owners, placing the burden of persuasion on any who would seek
to limit an owner’s rights. It misrepresents the fact that a system of ownership also
includes an element of responsibility: an owner’s rights are, in legal terminology, in rem,
that is, against all others.100 This means that an owner’s right to use his property for
growing corn, for instance, is a right that everyone else in the world is responsible to
respect. An ownership system, in other words, relies on the responsibility of non-owners
to recognize and respect an owner’s rights. In contrast, stewardship is a relation to the
land that includes within the idea of property a combination of rights and responsibilities.
Any rights that accrue to land stewards are limited or focalized by the responsibilities
associated with holding, using, valuing, and distributing land.
If property law allocates rights with respect to land, then a stewardship model will
have to conceive of a pattern by which to allocate these rights. Contrasted with an
ownership model, in Singer’s “entitlement” model of property, what the title holder gets
is not so much rights, but a bundle of property “entitlements.” These entitlements “cannot
100
Lametti, “Concept,” 337-38.
110
be defined without attending to their effects on others.”101 A stewardship theory can
usefully appropriate this “entitlement” model of allocating rights in a way that takes into
account their effects on others. And the effects that theocentric stewardship aims to
achieve are normative social and ecological relationships.
Because property law allocates burdens of persuasion in addition to rights, a
stewardship model will also have to conceive of a pattern by which to allocate the
burdens of persuasion. The burdens of persuasion in a stewardship model ought to be
placed on any entity that threatens normative social and ecological relationships. In this
sense, injustice is not necessarily illegal, but the burden of persuasion ought to be on the
party that is threatening or distorting normative social or ecological relations.
The language of stewardship, however, has been critiqued. Kelly Johnson doubts
the potential of stewardship to resolve property challenges. She argues that the language
arose after the failure of the Franciscans to coherently separate their use of goods from
the rights of ownership.102 In an effort to pursue Christological poverty, the Franciscans
sought to renounce every right over things. But they faced a contradiction: how could one
separate ownership from use when it comes to something like food, which, when
consumed, is used up? The idea of stewardship filled the gap in the wake of this failure to
fully separate use and ownership. At its worst, stewardship leaves “questions of legal
property rights to their own logic” and “reinterprets ownership from a spiritual side.”103
The stewardship ethic, Johnson argues, “arose among holders of substantial wealth and
power, and it has repeatedly been used to reinforce their property rights, even as it calls
101
Singer, Entitlement, 94.
Johnson, Beggars, 71.
103
Ibid. “Spiritual” here does not have the positive connotation with which I describe the
theological virtues. It is meant to denote a negation of material existence.
102
111
for generosity and responsibility.”104 Because of this history, stewardship “signifies a turn
from the material and political presence of the church as an economic community capable
of material sharing toward the church as a spiritual association of individual property
holders with primarily motivational rather than organizational impact.”105 Lastly,
stewardship shifts moral attention away from where one’s property came from and what
it is toward questions of how to use it. In this way, she sees it as “an authorization of lay
power and judgment in matters of wealth, without the interference of church leaders.”106
In other words, stewardship is inherently tied up in the excesses of liberal modernity,
including its social atomism, its individualistic locus of authority, and its drive for
individual autonomy. Johnson levels the case against stewardship as a failure of material,
social, and ethical thought—in short, a negation and failure of justice.
For Johnson, the language of stewardship is caught up in possessive individualism
and the socially atomistic language of individual rights. She shares the concern of Joan
and Oliver O’Donovan that individual rights and the “proprietary self”—an anthropology
in which one’s relation to oneself is a property relation, as in Locke—are two pillars of
modernity that both characterize and plague modern socio-political relations.107 The
proprietary self is the “‘economic anthropology’ of subjective rights.”108 In other words,
all things are (or can be) treated as property, including oneself. Human beings possess
themselves; rights are simply a way of protecting individual interests. For Johnson and
the O’Donovans, these keystone institutions of modernity—subjective rights, the
104
Ibid., 72.
Ibid., 73.
106
Ibid., 98-99.
107
Joan Lockwood O’Donovan, “Natural Law,” 20-22; Oliver O’Donovan, “The Language of
Rights,” 200.
108
Joan Lockwood O’Donovan, Bonds, 10.
105
112
proprietary self—flow from the same source as stewardship: atomistic political
liberalism. And political liberalism is a failed social ethic. Their critique of liberal
modernity, however, is warranted as a critique of liberalism’s excesses, or what I have
categorized as utilitarianism and libertarianism in this thesis.
Wolterstorff’s account of human-rights-as-normative-social-relationships—in
contrast to rights-as-immunities—survives the most ardent (and justified) critiques of
both a possessive account of rights and a proprietary anthropology. In a similar way,
stewardship, as I am developing it here, is not about an individual’s management of
property to the neglect of its social uses or its integral association with justice. My usage
of stewardship is not primarily about how individuals use their already-acquired wealth in
charitable or generous ways, as if stewardship was a virtue only available to the
wealthy.109 Consistent with the definition of property used in this thesis, my argument for
stewardship centers around the idea that property functions in ways that create and reflect
patterns of social, ecological, and psychological relations. Everyone participates, whether
owners or non-owners, rich or poor. These creational relations are put in theodramatic
perspective by the theological relation. Stewardship is not, contrary to its contemporary
usage in the realm of church finances, primarily about individuals and their charitable or
prudent management of resources. Stewardship is about using the property construct,
whether through law or cultural practice, in ways that establish normative social,
109
A common misunderstanding about stewardship is that it is only for those who already have
property. Property, as I have argued in this paper, is not about owning things. It is about a system of
allocating powers with respect to things. Everyone participates in this system, whether owners or nonowners. Non-owners participate to the extent that they refrain from interfering with another’s property.
Aquinas even justified theft (the non-participation of a non-owner) in cases of dire need. So it is not only
the wealthy who engage property or can be stewards. The whole society upholds property arrangements in
its common practices.
113
ecological, and psychological relationships coherent with a vision of shalom. In other
words, stewardship is about setting relations aright. It is all about justice.
A second critique of stewardship derives from New Testament scholar Richard
Bauckham’s work on a biblical theology of ecology. It concerns the place of humanity in
relation to the rest of creation. Bauckham does not reject the human vocation of
stewardship so much as put it in its proper place, as “a role within the larger sphere of
community relationships, which it does not exhaust.”110 Stewardship is problematic when
its emphasis is humanity’s distinction from the rest of creation, rather than its
commonality with the rest of creation. The genealogy of stewardship as an interpretation
of dominion in Genesis 1:26-28 is suspect. Since the patristic era, dominion was
interpreted through a Greek philosophical lens as “the right to make use of all creatures
for human ends,” even if this was also balanced by the more fundamental doctrine of
creation: that humans are God’s creatures alongside other creatures.111 This qualified
form of dominion became anthropocentric domination in early modernity, specifically
within Francis Bacon’s project of exercising scientific mastery over the natural world for
human use and benefit. This domination paradigm “saw no value in nature other than its
usefulness for practical human ends.”112 Dominion’s counterbalance in the doctrine of
creation was lost.
The language of stewardship, according to Bauckham, was proposed to counter
the Baconian domination paradigm in recognition of “ethical obligations arising from
nature’s intrinsic value as created by God for God’s glory, not merely for human
110
Richard Bauckham, Bible and Ecology, Preface.
Richard Bauckham, “Stewardship and Relationship,” in The Care of Creation: Focusing
Concern and Action ed. R. J. Berry (Downers Grove: InterVarsity Press, 2000), 100 (emphasis mine).
112
Ibid., 101.
111
114
benefit.”113 However, this seventeenth-century version of managerial stewardship still
assumed, with Bacon, that nature needed humanity to manage it for its own good and
improvement. Nature, unmanaged by human beings, is chaotic; it needs human control
over it to keep it in order. Bauckham rightly concludes that the human vocation of
dominion must be reconciled with human identity as “fellow creatures.” In addition, a
biblical understanding of rulership must derive not from earthly rulers, but from
Deuteronomy 17:14-20, which presents a model of kingship that subverts ordinary
notions of rulership.114 Human stewardship is not a role above the rest of the creation, but
a role within the community of creation. For human beings are dependent on the rest of
creation and their relationship to the rest is one of reciprocity. Thus stewardship “is a role
that we should exercise within the community and precisely as members of the
community relating to fellow members.”115 Within a property-as-stewardship paradigm,
then, intrinsic to the steward’s role is the notion that the moral order and the natural order
are intertwined. One cannot treat land poorly without treating other human beings
unjustly. Likewise, seeking normative social relationships to the neglect of normative
ecological relationships will lead to further suffering, as in the unfolding catastrophe of
human-induced climate change. Care for ecological health is not because of its
association with human health, but the two are certainly connected.116
If the language of stewardship is so problematic, why make it central to my
account of theocentric property? With stewardship, as with the language of rights, one
should not discard the language simply because some have used it poorly, or used it to
113
Ibid. (emphasis mine).
Ibid., 105.
115
Bauckham, Bible and Ecology, 90.
116
The Appalachian anti-mountain top removal slogan is apt: “What you do to the land you do to
the people.” See Kentuckians for the Commonwealth, http://www.kftc.org
114
115
uphold the power structures of the status quo.117 Rather, stewardship ought to be
understood in light of the uniquely biblical image of kingship as servant-kingship. Wright
sums it up when he writes, “Dominion (Genesis 1) exercised through servanthood
(Genesis 2) is the biblical balance for our ecological responsibility.”118 Distinctly
Christian stewardship takes a biblical model of kingship as normative—a model
ultimately manifested in Christ the King, whose suffering love led him to the cross for the
reconciliation of estranged creatures with God. If stewardship is not about participating to
right those creational relations that are distorted by unequal power relations, then it is not
servant-kingship; it is something else. Stewardship (a rendering of dominion) serves
God’s theodramatic mission to creation. Rightly relating to God in faith entails trusting
God as the source of all that is, seeing oneself both as unique in the community of
creation (as a steward) and in reciprocal fellowship with the rest of creation (as a fellow
creature). Faithful stewardship practices will recognize the intrinsic value of God’s
creatures apart from their exchange value and will seek an economics of “practical
harmony” with them. Stewards will value land (and their relationship to it through
property) for its ability to restore and set aright relationships within the community of
creation. Stewardship, in other words, advances shalom.
I distinguish between two layers of stewardship. One layer of stewardship is
caring responsibility for other creatures. I call this caretaking stewardship. The land
steward, in this first layer, is a caretaker of land and the people to whom she relates
through her property relation to the land. This is in keeping with the “community of
117
Human history would seem to indicate that powerful interests can use just about any discourse
to maintain the status quo, including that of virtue, justice, or neighbor-love.
118
Christopher J. H. Wright, “The Earth is the Lords: Biblical Foundations for Global Ecological
Ethics and Mission,” in Keeping God’s Earth: The Global Environment in Biblical Perspective, eds. Noah
J. Toly and Daniel I. Block (Downers Grove: InterVarsity Press, 2010), 232.
116
creation” understanding of stewardship as servant-kingship explored above. It includes
both an anthropology (the steward as caretaker) and an ethic (stewardship as caretaking).
I propose that a second layer of stewardship has to do with the moral and social vision
that members of a society enact through their property practices. I call this world-making
stewardship. In this second layer, the landholder (or the lawyer, the legislator, the judge,
or anyone else relating to land) stewards a vision that encompasses what the good life is,
what makes it good, and how a society ought to be shaped around achieving this good
life. The world, as the steward imagines it, is being enacted in concrete practices, which
in turn shape her imaginative understanding of the world, and vice versa. Being a
liturgical animal, her property practices aim her desire and shape the imaginative
horizons of her world. “For human action always has ontological implications: human
action always points to our functional conception of the way the world is.”119 In her
active relating to other people, to the non-human creation, and to herself through
property, the steward points toward and indwells some vision of what the world is and
ought to be like. She demonstrates, through her practices, what world she indwells and
what matters in that world. She engages in world-making stewardship.
The connection between caretaking stewardship and world-making stewardship,
as I conceive it, is similar to that between action and narrative. Actions cohere with a
narrative from which they derive meaning and directionality. In a similar way, caretaking
stewardship is an ethic that derives its directionality and purpose from the goals and
vision that it stewards. All land use is stewardship in the sense that property is used as an
instrument in service of individual or collective goals that are coherent with a moral and
119
J. Todd Billings, The Word of God for the People of God: An Entryway to the Theological
Interpretation of Scripture (Grand Rapids: W.B. Eerdmans, 2010), 13.
117
social vision. Another way to say this is that all land use involves world-making
stewardship: it is aimed at some explicit (or implicit) goal(s) and vision. For many, this
goal is unarticulated or implicit because, if for no other reason, it is taken to be so basic
that it remains unspoken.
I have explored the two most powerful responses to the question What ends
should property serve? One response is the pursuit of individual preference satisfaction,
or utility (measured as wealth), and the other is individual freedom, or autonomy
(measured in terms of liberties). Both envision the good life as the experientially
satisfying life. Their social vision is one of self-directed, self-interested individuals
deciding what interest(s) their land-related practices ought to serve. In fact, whether one’s
interests are moral or immoral is of little to no consequence, so long as they do not harm
another’s ability to pursue her interests. Neither utilitarians nor libertarians aim at human
flourishing, theologically construed. Neither has provided dynamic tools to conceive of a
broader common good beyond an ethic of non-interference.
The problem haunting those who pursue the experientially satisfying life is that
“actual preferences and actual desires cannot be determinative of the good life, since
preferences and desires are often disordered.”120 Neither a utilitarian nor a libertarian
theory of property renders a world-making stewardship in which caretaking stewardship
makes any sense. The obligation owed to others, in utilitarianism and libertarianism, is to
not interfere with their interest-pursuits. While it is true that individuals can decide that it
is in their best interest to participate in caretaking stewardship, they cannot conceive of
caretaking as anything but a preference. They cannot conceive of it as normative justice.
120
Nicholas Wolterstorff, “God’s Power and Human Flourishing” (paper, Yale Center for Faith
and Culture, Yale Divinity School, New Haven, CT, May 23-24, 2008), 13.
118
They also cannot take care of those people and lands that are systemically excluded,
marginalized, or violated by unjust land systems. Systemic forms of violence and
exclusion require systemic responses. Civil rights legislation in the United States was not
achieved by individuals, but by a movement driven by a new social vision. Caretaking
stewardship requires a world-making stewardship rooted in the vision of shalom. A
theocentric stewardship theory requires both layers: stewardship of land as stewardship
of shalom.
STEWARDSHIP AND JUSTICE
The close association between a theocentric stewardship theory of property and
the pursuit of justice is crucial, particularly in light of Johnson’s critique that the wealthy
employ the language of stewardship in order to avoid justice.121 I have thus far argued
that a theocentric stewardship theory is one that aims at human flourishing defined as
being fully alive by relating to God in faith, hope, and love, and by relating to neighbors
and the non-human creation through faithful, hopeful, and loving practices. Shalom
characterizes this vision of moral community. A theory of land stewardship for human
flourishing is incomplete without an account of justice.
Wolterstorff’s account of justice—as inherent rights grounded in worth and what
respect for human worth requires—provides a basis for relating justice to human
flourishing. Whereas eudaimonistic theories of flourishing fail to account for the
recipient-dimension of justice, an approach to flourishing that Wolterstorff calls
eirenéism (Greek for shalom) encompasses not only one’s living well (virtue), but also
121
Johnson, Beggars, 159.
119
one’s life going well (justice).122 For the eirenéist, having access to basic goods, such as
water and shelter, is not instrumental to flourishing (the development of virtue), but is
constitutive of it. Similarly, “having one’s rights honored is likewise constitutive of one’s
flourishing.” In this way, one’s flourishing “is constituted in good measure by the actions
and restraints from action of others”; it is “intrinsically social in a way that it is not for
the eudaimonist.”123 Justice, in this account, is deeply consonant with theocentric human
flourishing. By being treated in ways that respect one’s inherent worth—as one to whom
God relates in a form of “attachment-love”—a person can experience that they are valued
and loved as one of God’s creatures with whom God is bonded. 124 By treating a neighbor
in a way that respects his dignity, one engages in faithful and loving practices. By doing
so in a world that generally does not treat human beings in this way, one does so with
hope. Justice grounded in inherent human-rights-as-normative-social-relationships thus
provides a social ethic for a theory of stewardship-directed-toward-human-flourishing.
A form of justice rooted in the enjoyment of right social relationships and an
eiréneist theory of human flourishing—a life that is both lived well and goes well—
provides a basis for the social angle of theocentric stewardship. The other angle relevant
to stewardship is the human-environment relation, or the ecological angle. Ecological
justice is distinct from a social form of justice. For human beings are unique among
creatures. However, the same eiréneist framework applies. While justice does not exhaust
shalom, it is “the ground floor of shalom.”125 It is about righting relationships that have
been distorted or broken, including those relations between human beings and the rest of
122
Wolterstorff, Justice, 226.
Ibid.
124
Ibid., 189-90, 359-60.
125
Wolterstorff, “God’s Power,” 21.
123
120
the creation. For God relates creatively to all of God’s creatures and calls human beings
to engage in practices loyal to God’s creative project. The ecological property theory
explored earlier expands the moral community to encompass non-human creatures,
taking the health of the whole land community as the measurement of overall wellbeing.
However, whereas early modern forms of stewardship theory tended to emphasize the
uniqueness of human beings from the rest of creation, contemporary ecological
approaches can tend toward emphasizing their sameness as the rest of the biological
community. The risk of overcompensating for human uniqueness from the rest of the
biological community is the risk of confusing social and ecological justice. This,
however, is a failure of faith in the Creator in whose image human beings are made. Both
roles of the servant-king must be held together.
Stewards understand their relation to land as holding, valuing, using, or
distributing land in ways that trust in, hope in, and love God in part through practices that
aim at human flourishing, theologically construed. The ecological perspective adds to this
picture the flourishing of the non-human creation defined as the “capacity of the land for
self-renewal.”126 When human beings relate poorly to their biological communities, the
capacity of those communities for self-renewal is diminished. However, this does not
preclude human use of the earth’s resources. In Genesis, God gives every green plant for
food to the animals in the same way that God gives the task of responsible care of the
earth to human beings.127 The key is that it is God who gives: God sets the limits for
creaturely dominion.128 Land stewards respect and value the limits that God has set for
126
Leopold, “Land Ethic,” 258.
Gen. 1:28, 30.
128
Bauckham, Bible and Ecology, 28.
127
121
human beings in their relation to the land. They aim at an economy in “practical
harmony” with the natural environment.
An ecological awareness of limits is what much of the stewardship tradition lacks.
The idea that human beings could bring the rest of creation to its knees would have
seemed absurd until the modern era. While technology may forestall or offset some
impacts of human settlement on the land, any faith or hope in human technology to avert
long-term disaster is misdirected. To conclude, ecological justice consistent with
eirenéism is a commitment to normative ecological relationships by human beings
exercising stewardship as a role, not above the rest of creation, but within the community
of creation.
STEWARDING SHALOM IN FAITH, HOPE, AND LOVE
In this chapter I have demonstrated how a theocentric account of land stewardship
fits the criteria put forth by Lucy and Mitchell. If it is going to replace common
conceptions of ownership, a stewardship theory of property requires a tri-fold account of
other-regard, human needs/flourishing, and an ecological sense of justice. The modern
PHF theory advocates property’s role in forming virtuous individuals as well as
communities that support the development of virtuous individuals. While modern PHF
meets Lucy and Mitchell’s criteria of a stewardship theory of property, I have argued that
it is, in itself, insufficient for a theocentric stewardship theory. Its account of otherregard, based in either self-development or rational consistency, fails to ground the worth
of human beings as human beings, and thus fails to account for self-limitation in favor of
another’s good. In short, it has a weak social vision and a limited understanding of
122
neighbor-love. Its account of human flourishing, grounded in virtue, involves giving
human beings the capacities needed for a well-lived life. However, modern PHF makes
the meeting of human needs instrumental to human beings living well, rather than
constitutive of their flourishing. It does not factor in the theological virtues or the
experience of being valued, being loved, and having hope, which I take as constitutive of
human flourishing, theocentrically construed. Lastly, modern PHF’s ecological account
of justice is both limited and overly anthropocentric. Justice, for PHF, is about agents
participating in society to seek the flourishing of others. Therefore, one could flourish by
acquiring the virtue of justice, but fail to deliver justice to his oppressed neighbor. In this
case, since the recipient is not treated as one with inestimable worth, justice has not been
achieved. A virtue theory of justice fails to account for the recipient-dimension of justice
grounded in human worth. Modern PHF also falls short of an ecological sense of justice
in that the value of the natural world is derived from its ability to provide human beings
what they need in order to develop virtue and live well. For these reasons, I have argued
that the modern PHF theory falls short of a theocentric theory of property.
A theocentric stewardship theory of property meets the three criteria by bending
PHF along the God-relation. First, a theocentric account of human flourishing adds the
theological virtues of faith, hope, and love, as well as their correlative social and
ecological practices. Human flourishing has to do with being “fully alive” both in God’s
relating to human beings and in their relating responsively to God in faith, hope, and
love. Second, faith, hope, and love form the basis of Christian ethics—other-regard—as
Christians engage in practices loyal to God’s creative project, practices that anticipate
God’s coming Kingdom, and practices of loving solidarity with and to their neighbors.
123
Third, an ecological sense of justice is rooted in the delightful, moral community of
shalom and the theology of stewardship. Stewards not only exercise caretaking of
property, but they also engage in world-making by enacting, indwelling, and pointing
toward the shalom community in and through their practices.
Practices loyal to God’s creative project will include valuing all of life,
particularly human life, as God’s beloved creation. To that end, faithful practices of
valuation will resist valuing things simply for their exchange value, but also for their use
value, for how they can be used to love God and one’s neighbor. This does not prohibit
profit, but it does preclude profit that is detrimental to people and planet. Faith also
involves trust. It is wary of legal solutions to social or economic challenges that substitute
contractual relations for relations characterized by trust. Faithful practices also concretize
creaturely limits, choosing to limit humanity’s long-term impact on creation rather than
trust in technological solutions to the unfolding environmental catastrophe. Faithful
practices will aim at a “practical harmony” with the people, the land, and the rest of the
biological community in which people live.
Practices of loving solidarity will include seeking justice by upholding the rights
of human beings, particularly the vulnerable and marginalized. They will also include, at
times, limiting oneself and one’s desires for the benefit of others, including future
generations. Loving practices will pattern the allocation of property rights in ways that
meet human needs and empower a society’s vulnerable and marginalized. They will also
pattern the allocation of burdens of persuasion in ways that make owners account for
their practices that threaten normative social or ecological relationships. Loving
124
solidarity, in short, will be measured by whether its achievements are good news to the
poor, the disempowered, and the vulnerable.
Practices of hope in anticipation of God’s coming Kingdom will include
participation in political, economic, legal, and socio-cultural institutions in order to bend
them along the values of the new creation. However, these reforming practices will be
done in hope, not out of either triumphalism or futurism. Practices of hope may also
include creating alternative communities that experiment with practices rooted in the
hope of the resurrection, including property sharing, equal treatment, sustainable living,
and other radical alternatives to the society at large. However, these experiments will be
done in hope, not in order to successfully achieve broader social change. Hope is about
being in the process of transformation: from estrangement to enjoying communion with
God, oneself, one’s neighbors, and the natural environment in the moral community of
shalom. Hopeful practices aim to set relationships aright, even when all of the evidence is
that they are going in the opposite direction.
While the moral theory put forth by modern PHF scholars is limited, as a practical
proposal for arranging property rights in a society, the Statement of Progressive Property
is a document that theocentric land stewards should endorse. The Statement moves
contemporary property thinking and practices in the right direction, replacing the
standard ownership model with a model that seeks to balance the plurality of values
implicated by property. The Statement calls for an understanding of property as both an
idea and an institution. As an idea, property cannot solely be about exercising control
over things, since it allocates power and shapes the contours of community life. Property
ought to serve a common good. As an institution, it should pattern its allocation of rights
125
and the burdens of persuasion in a way that promotes the common good of human
flourishing. Among the plural and incommensurable values that property implicates are
freedom of choice and wealth creation. However, these are two among other values, such
as environmental values, justice, trust, physical security, and other aspects of individual
and social wellbeing. They are incommensurable in that one cannot substitute social trust,
for instance, with economic growth. When values inevitably compete and conflict with
one another, stewards must exercise discernment and judgment. As liturgical beings,
when human beings practice faith, hope, and love, they shape and aim their desires
toward enjoying right relationship with God, and, through this relationship, with
themselves, their neighbors, and the rest of creation. They learn to desire God’s shalom
and to seek it for their neighbors also. With this kind of Christian imagination stewards
engage in faithful improvisation, exercising discernment and judgment in the face of
conflicting values, as they participate in the theodrama of redemption.
126
Conclusion: Property Rights and Development
in Theocentric Perspective
In this concluding chapter, I return to the property formalization and shared equity
homeownership programs to assess them in light of a theocentric stewardship theory of
property that integrates human flourishing, a moral imagination characterized by shalom,
and the human vocation of stewardship.
Property, theologically construed, is an idea and an institution whose purpose and
function is to make human beings more fully alive to God in faith, hope, and love while
and by engaging in faithful, hopeful, and loving practices toward God, neighbors, and the
rest of God’s creation. Theocentric stewardship is a concrete manifestation of a moral
imagination shaped by the narrative of theological-psychological-social-ecological
relations created by God, destined for shalom, distorted by sin, and reconciled in Christ.
The ground floor of theocentric stewardship is a social and ecological form of justice:
socially, justice is the enjoyment of one’s rights, defined as normative social
relationships; ecologically, justice is the restoration of healthy human-environment
relationships that allow the non-human creation to renew itself. Stewardship, thus
understood, is not only a vocation of those who already possess land, but is for all who
127
belong to a society and participate in its patterns of property relations, whether as owners,
renters, squatters, or otherwise. For those who suffer because they do not have access to
land and what is constitutive of a full life, their exercise of stewardship may include
actions in pursuit of distributive justice or of redistributing property rights.
For those interested in pursuing a form of theocentric stewardship, the “Statement
of Progressive Property” is a good and multi-confessional common ground for reforming
property law to better promote human flourishing. It integrates interest-based values of
freedom and preference satisfaction within a larger framework in which multiple and
incommensurable values, such as sociality and health, carry equally valid weight. While
the makeup and prioritization of these values is open to further discussion, the Statement
rightly calls for the exercise of reasoned judgment in relation to social choices that resists
calculative reasoning and gives adequate weight to social and ecological values.
Reasoned judgment consonant with theocentric stewardship will prioritize the flourishing
of the poor and vulnerable. If the poor and vulnerable are not flourishing, then property
can be an instrument to facilitate their experiencing what their inherent dignity requires,
what loving communion is, and why there is reason to hope that things are moving
toward peace and wholeness.
Where is there to go from here? For a comprehensive theory of theocentric
stewardship, further work is necessary for engaging the breadth of property forms that
concretely enable and enact human flourishing. A theocentric stewardship theory can be
applied to private, public, or common property systems. It can also be usefully applied to
property-based environmental initiatives, such as cap-and-trade emissions initiatives or
the protection of endangered species.
128
Theocentric stewardship can also be explored further in relation to non-dominant
relational worldviews that are gaining increasing attention among development scholars
and sociologists. Understanding property in terms of human connection to the natural
environment, to ancestors and descendants, and/or to deity is arguably the standard model
throughout most of history and culture. At risk of oversimplification, these relational
worldviews have in common a moral imagination that counterbalances the individualistic
anthropologies of liberal modernity. In each, property acquires meaning in reference to a
larger moral-relational framework, and the health of the relations—social, ecological,
theological—is what matters.1
For one, the Andean concept of sumak kawsay, or buenvivir (good living),
incorporated in recent years into the constitutions of Bolivia and Ecuador, is one
alternative that is being explored by Latin American postdevelopment scholars interested
in relational understandings of healthy interactions: between humans and nature, between
individuals and community, and between economic and social goals.2 A second approach
that is rooted in American soil is the New Agrarian concept of the health of the “land
community,” briefly explored in the second chapter. New Agrarians call for a relationship
of practical harmony between economic, ecological, and social spheres.3 A third is built
on the Bantu philosophy of ubuntu, roughly meaning that “a person is a person through
1
This brief look at alternative relational worldviews is insufficient to address the nuances and
critiques of indigenous, customary, or informal property systems. In particular, property as a “politics of
belonging” involves exclusion as much as it does inclusion. In this sense, property’s ability to form
community identity can operate at the expense of those who are defined out of the community. See Kuba
and Lentz, Land and the Politics of Belonging in West Africa.
2
See, for instance, Pablo Davalos, “Reflections on Sumak Kawsay (Good Living) and Theories of
Development,” Agencia Latinoamericana de Información, October 12, 2009,
http://alainet.org/active/33609&lang=es; or Francois Houtart, “El Concepto de Sumak Kawsai (Buen Vivir)
y su Correspondencia con el Bien Común de la Humanidad,” ALAI, June 2, 2011,
http://alainet.org/active/47004&lang=es
3
See, for instance, Leopold, “Land Ethic;” Wendell Berry, Sex, Economy, Freedom, and
Community, or What Are People For? (New York: North Point Press, 1990). For an outworking of New
Agrarianism in American property law, see Freyfogle, Land.
129
other persons.”4 Ubuntu is a way of thinking about social interdependence, maximizing
those values that foster the development of persons in community. There are many
others, but each of these uniquely counterbalances the excesses of modern liberal
anthropology, its strong sense of the autonomous self, and its limited resources to address
social concerns and values.
Lastly, further work on theocentric stewardship could explore how this theory
interacts with a biblical theology of property, particularly in the Old Testament.5 Taking a
page from the legal scholar’s playbook, one could explore how land conflicts in ancient
Israel were resolved, or at least interpreted, in a way that is consistent with a stewardship
theory of property. While Scripture is not a bank of theories, such a theory could help to
shed light on the functioning of property and its purpose in Israel’s faith. The account of
Naboth’s vineyard in 1 Kings 21 is a paradigmatic example of a land conflict in which
two conflicting understandings of the purpose and role of property reveal a deeper
conflict of moral imaginations: Naboth portrayed as the faithful Israelite steward, on the
one side, and King Ahab and his wife Jezebel as the unfaithful, Canaanite landowners, on
the other. This account could serve as a window into the contest of narratives as it is
played out in the arena of Old Testament property rights.
Returning to the practical goal of this thesis, and with theocentric stewardship as a
gauge for normative property, I respond to the questions earlier raised about shared
equity homeownership and the property formalization campaign.
4
See, for instance, Thaddeus Metz, “Toward an African Moral Theory,” Journal of Political
Philosophy 15, no. 3 (September 2007): 321-341, doi: 10.1111/j.1467-9760.2007.00280.x; or Desmond
Tutu, No Future Without Forgiveness (New York: Random House, 1999).
5
For a good foundation for this kind of project, see Wright, Old Testament Ethics; and Davis,
Scripture, Culture, and Agriculture.
130
SHARED EQUITY HOMEOWNERSHIP
Shared equity homeownership is a hybrid way of bundling property rights on the
American residential housing landscape. American residential housing has been split
between ownership and rental housing, between public and private ownership, and
between market-driven and socially controlled housing prices. The poor have
traditionally lived in public, rental, and/or socially price-controlled housing, while the
middle class and wealthy have lived in market-driven, private, and ownership housing.
What significantly complicates this picture is the history of race relations in the United
States. In chapter two, I argued that housing policies enacted systemic forms of racial
exclusion during the civil rights era. The history goes deeper yet. From the Homestead
Acts to the GI Bill, blacks were systematically excluded from every landownershippromoting program by the United States Federal Government.6 These programs are what
formed the landowning middle class and, through inheritance, have solidified white
wealth in American history.
I showed how in the civil rights era a new social vision of racial equality
compelled widespread social and legal change through the work of activists, educators,
lawyers, writers, and others. While it is true that the income for black households has
increased since the civil rights era, the troubling reality is that the wealth gap between
black and white households has increased substantially. According to the Institute on
Assets and Social Policy, between 1984 and 2007, the wealth gap between white and
6
See Melvin and Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality;
and Thomas M. Shapiro, The Hidden Cost of Being African American: How Wealth Perpetuates Inequality
(New York: Oxford University Press, 2004).
131
black households grew fourfold.7 The gap is expanding exponentially in the wake of the
recent housing market crash, especially in light of the fact that racial minorities were
more likely to receive a high-cost, subprime mortgage from lenders, and therefore more
likely to experience foreclosure.8
Wealth is the difference between what one owns and what one owes. It is an
indicator of assets rather than income. What puts most Americans in the middle class is
their homeownership by virtue of the equity that generally accrues over time and through
the amortization of a mortgage. Putting the pieces together, if homeownership is arguably
the ticket to the middle class; if black households were systematically excluded from
owning homes for much of the nation’s history; and if the most recent housing boom
simply set black families up for failure; then what is the hope for low-income black
families to flourish through property?
This all too brief overview of American racial history and property relations
serves as background to the shared equity homeownership movement. Shared equity
provides an alternative between the dualities on the American housing landscape. Perhaps
its most significant effort is to lower the barriers—namely, affordability—of access to
homeownership housing, which is taken to be in the individual household’s interest. In
exchange for lowering the barriers, it limits the rights of ownership, most notably the
resale price. Shared equity seeks to preserve the affordability of the home in the long
7
This and the following analysis of the racial wealth gap is taken from Thomas M. Shapiro,
Tatjana Meschede, and Laura Sullivan, “The Racial Wealth Gap Increases Fourfold” (research and policy
brief, The Institute on Assets and Social Policy, The Heller School for Social Policy and Management,
Brandeis University, May, 2010), http://iasp.brandeis.edu
8
Ibid.
132
term, which is taken to be in the community’s interest, by restricting its resale price. In
this way, shared equity seeks a balance between individual and community interests.9
In American social and economic history, wealth matters for one’s wellbeing. It is
closely tied to education opportunities, tax benefits, and other public policies designed to
benefit middle and upper-income Americans. Empirical research on the benefits of shared
equity reveal the following: it increases housing stability and affordability for lowincome households, it has some potential to promote civic involvement, and there is some
indication that it leads to family and self-improvement.10 Therefore, I judge it to be a
welcome addition to the American residential housing landscape for those who are more
interested in these values than in building wealth. However, the question remains as to
whether shared equity homeowners can build wealth, or at least enough wealth to
maintain some level of opportunity consonant with middle and upper-income households.
Unfortunately, the research is lacking. However, in light of the history of American race
relations through property, justice would indicate a need to discern the long-term impact
of shared equity on black and other racial minority households. If shared equity programs
are not carefully structured and marketed, they could perpetuate a “separate but equal”
dynamic in which low-income black households get stuck in a parallel housing market,
building very small amounts of equity while their white neighbors’ wealth is growing
fourfold. This would be a tragic inversion of the beneficent intent of shared equity’s
architects.
In conclusion, shared equity homeownership is a welcome addition to the limited
options available to Americans choosing where and how to live. It innovatively
9
Davis, “Shared Equity,” 90.
Ibid., 89-114.
10
133
restructures the bundle of rights traditionally associated with homeownership in the
United States, valuing property for reasons other than its wealth-producing capacity. In
this way, it holds promise as one model of property stewardship in the American housing
landscape. Being still a fraction of the overall American housing landscape, and still in
the process of being refined and contextualized in various contexts, land stewards ought
to engage with shared equity homeownership to promote its benefits and minimize its
social costs.11 The social cost that needs to be most closely monitored is that to racial
minority households who are looking to build assets and wealth in order to increase social
and economic opportunities for themselves and their families. While shared equity may
not be the best option for these households, it is a good option for those interested in
housing security and stability, civic involvement, family or self-improvement, and
community investment. There ought to also be options for low-income households, in
addition to shared equity homeownership, that provide opportunities for building assets.
PROPERTY FORMALIZATION
What should be evident from the theoretical work thus far is that, in practice, the
property formalization campaign is closely associated with an economic neoliberal
ideology promoted in various ways through international financial and development
institutions since the late 1980s. John Williamson famously articulated what I consider a
neoliberal policy package promoted by international and development institutions that
included legal security for property rights along with other prescriptions for trade
11
For an example of a faith-inspired nonprofit affordable housing developer utilizing shared
equity homeownership models to benefit low-income black and Hispanic households in Washington, DC,
see Manna, Inc., www.mannadc.org
134
liberalization, deregulation, privatization of state enterprises, and fiscal discipline.12 One
economist, voicing the centrality of property to neoliberalism, even defines development
in terms of property rights: “from the free-market standpoint an undeveloped country is
one where property rights are not enforced.”13
Economic neoliberalism, what I define as an interest-based theory of social
relations as primarily market relations writ large, is ideologically tied to one particular
form of property: private property.14 It elevates privatization, liberalization, and
deregulation above public subsidy, state ownership, or central planning.15 Its conceptual
imagination revolves around the dichotomy between public (state) and private spheres,
leaving community out of the equation altogether. Neoliberalism does not have room for
insecure, communally regulated property tenure because, as de Soto has argued, insecure
property rights fail to produce capital, which is what creates wealth. Former chief
economic advisor to the British Treasury, Alan Budd, declared that “[w]hat Hernando de
Soto has done is to solve the mystery of poverty.”16 Has de Soto really solved poverty?
Or has he recast it in terms that cohere with a neoliberal understanding of social relations
and moral vision?
As with the shared equity homeownership movement, this appears to be a
question about wealth and how it is produced. What is different in this case, however, is
that formalization is being promoted in places as diverse as Peru, Kenya, and Indonesia.
12
See Williamson, Latin American Adjustment. A perjorative term, Williamson does not use
“neoliberalism.”
13
Enrico Colombatto, “Are Property Rights Relevant for Development Economics? On the
Dangers of Western Constructivism,” in The Elgar Companion to the Economics of Property Rights, ed.
Enrico Colombatto (Northampton, MA: Edward Elgar, 2004), 253.
14
This is because private property is thought to maximize individual opportunity and interestseeking.
15
The idea that the free market is somehow “unplanned” is false. Ambreena Manji is right to say
that “laissez-faire is always and everywhere planned” in Manji, Politics of Land Reform, 139.
16
Alan Budd, quoted in Manji, Politics of Land Reform, 139.
135
These are places that have not been steeped for centuries in utilitarian ideals of preference
satisfaction or libertarian ideals of individual freedom. The idea of valuing land for its
ability to generate capital and wealth is foreign to some contexts of the developing world,
or at least it is one function of property among others. African legal anthropologist
Celestine Nyamu Musembi, for instance, shows how the Atwii clan in Ghana has not
used property primarily for wealth creation, but as a way to fulfill social responsibilities.
[T]he commodity view of land promoted by . . . formalization competes
with a different social vision of property as primarily a means through
which social responsibilities are met; even though individual rights and
entitlements do matter, these are conceived of broadly in order to enable
the fulfillment of those social responsibilities.17
Formalization fails to conceive of property as an idea that includes social obligations and
values within itself. Formalization does not distinguish between different objects of social
value, such as land, pencils, or oxygen, but reduces them all to a singular metric of
exchange value.
Formalization is a technical solution to poverty, a legal fix that overlooks culture
and history. An example from American history is demonstrative. I have briefly
referenced an earlier iteration of formalization in American history: the fifty-year
“allotment” campaign to replace Native American communal land holdings with private
title for individual Native American households. According to Ezra Rosser, white
Americans who self-identified as “Friends of the Indian” spent almost twenty years
advocating for allotment based on their “messianic faith in the civilizing force of private
property.” They, like de Soto, theorized that private title would induce industrious
behavior and capital creation. “‘Giving’ Indians the gift of the fee simple form of
ownership, it was said, would open their eyes to the benefits of hard work, capitalism,
17
Musembi, “De Soto and Land Relations,” 1469.
136
and ultimately, through hardship, Christianity.”18 Private title was taken to be the key to
modernity and development for Native Americans. By privatizing communal lands and
giving title to individual Native American households, the allotment campaign engaged
in an early form of property formalization in a culture that did not share the same cultural
values as Euro-Americans, among them utility maximization, individual freedom, and
commercial relations. By the time the allotment program ended,
more than 60 percent of the 1887 tribal land base had been lost. Moreover,
though hailed as a way of lifting Indians out of poverty and bad conditions
found on reservations by providing them the ‘benefits’ of individual
landownership, Indians ended up being socially and economically worse
off rather than better off as a result of allotment.19
One is tempted to conclude, as Rosser does, that the motivation for giving individual title
to Native American households was not for their own good, but for the good of those
who wanted to purchase those properties and take them out of Native American hands. In
other words, it was a legal way to take choice land from Native Americans, and to do so
under the pretense of other-regard. Allotment’s veneer of legality and beneficence
cloaked its greedy and malevolent usage.
Not only did allotment result in land loss, worsening poverty, and dependence on
government support,20 it also failed to take into account the dynamic ways in which
Native American communities negotiated private and communal land rights through their
social practices. The language itself—“formalization”—betrays the campaign’s bias
against land rights that are “informal.” Rosser suggests that a more accurate way to
describe land holdings that are not fixed in a legal process of representation through
formal title is not “informal” title, but “community” title. That is, “if the title is not
18
Rosser, “Anticipating De Soto,” 71.
Ibid., 66.
20
Ibid., 73.
19
137
formally recognized, the purchaser is protected by and subject to the laws and norms of
the surrounding community, not necessarily the state.”21 For communities to properly
regulate property—that is, without reference to the laws of the state—what is required is
communication, trust, and self-organization.22 Nobel Prize-winning economist Elinor
Ostrom has shown empirically how communities already do and can continue to
efficiently and sustainably regulate and manage their own property systems—from
fisheries to grasslands—without reference to the state’s legal institutions.23 For these
reasons, formalization’s privileging of state laws over social practices in communities not
only discriminates against communal arrangements, but in the process it also substitutes
the ingredients of collective arrangements—communication, trust, self-organization—
with law. But can contractual relations replace community, or trust, relations without
remainder?
The last key critique of the formalization campaign is that it “presumes the
inevitability of transition to formal private ownership as the universal route to efficiently
functioning property systems.”24 It has a social evolutionary bias that privileges all things
capitalist over other forms of social arrangement, regardless of whether those other forms
promote human wellbeing and flourishing. Private ownership of land is taken to be good
for human beings because it incentivizes capital production. Musembi argues that this
linear understanding of history and development is not only a fiction of ideology, but also
inaccurately represents property arrangements, which are fluid and change over time. The
21
Ibid., 75.
See Elinor Ostrom, “Design Principles of Robust Property Rights Institutions: What Have We
Learned?” in Property Rights and Land Policies, eds. Gregory K. Ingram and Yu-hung Hong (Cambridge,
MA: Lincoln Institute of Land Policy, 2009), 25-51.
23
See Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action
(New York: Cambridge University Press, 1990).
24
Musembi, “De Soto and Land Relations,” 1462.
22
138
reality is one of “multi-tenure systems with different land uses calling for different
tenures.”25 This bias toward privatization has also led to further divisions within
households. Individual registration of property has tended to favor men as heads of
households, thus creating and perpetuating patterns of gender exclusion.26
In conclusion, property formalization that is closely associated with neoliberal
ideology does not cohere with theocentric property stewardship. Within a neoliberal
framework, it reduces poverty and wellbeing to indicators of wealth. In essence, it will
fail to alleviate poverty because its understanding of poverty—and thus flourishing—
remains undeveloped.27 It privileges private property over other forms of tenure, formal
title over community title, liberal anthropology over relational anthropology, property as
commodity over property as relationship, and the free market over other social,
ecological, or political values. This does not mean that land titling and property
formalization will not, under certain conditions, give asset-poor households an
opportunity to increase their opportunities and wellbeing. Neither does it mean that
informality and communal arrangements are somehow superior to formal property
systems. It does mean that formalization has found fertile and troubling soil in the
dominant theories of property and, unless it is recast as a tool of stewardship, it is
unlikely to model a form of property that stewards the vision of shalom, including human
flourishing, theologically construed.
For de Soto, the goals of property formalization are the prosperity of the
industrious poor and the peace of society. Apart from these broader values, formalization
can be reoriented by neoliberals such that property is a mediating institution whose
25
Ibid., 1464.
Ibid., 1472; Manji, Politics of Land Reform, 124.
27
Manji, Politics of Land Reform, 138.
26
139
primary function is to make a market economy run. For stewards, property is a mediating
institution whose function is to make people more fully alive. In order to be a stewardship
model, formalization must be severed from neoliberalism; its success ought to be
measured by how it establishes and reflects just, healthy, and enjoyable relations among
people. Some indicators of success would be not only the production of capital, but also
gender inclusivity, cultural empowerment, social trust, identity development, and
ecological health. A model of formalization that is oriented by stewardship theory would
include these values within its scope and purpose.
I end on a note of hope from Jonathan Lear’s Radical Hope.28 In his retelling of
the story of Plenty Coups, the great Crow leader who led his people through cultural
devastation and into a new reality of engagement with Euro-American government, Lear
plumbs the depths of a profound courage to hope. Plenty Coups envisioned anew his
people’s traditional symbols and virtues in a world in which they no longer made any
sense. In the face of cultural devastation, the Crow, like all Native American tribes of that
era, had three choices: to give up their symbols and virtues in defeat, to keep using them
in denial, or to re-envision them for a new and yet unknown era.29 Plenty Coups’ dreamvision was that the Crow would walk into their new reality with the courage to hope that
they would not only survive, but would thrive once again in their land. This would be
their future so long as they acquired the virtue of the chickadee, which listens to and
learns from the wisdom of others.30 Plenty Coups’ vision resonated with the Crow
people, who had faith that this was indeed a God-given vision of hope to flourish once
28
Jonathan Lear, Radical Hope: Ethics in the Face of Cultural Devastation (Cambridge, MA:
Harvard University Press, 2006).
29
Ibid., 36.
30
See ibid., 66-82.
140
again in their land. In light of this vision, and in contrast to the Sioux under Sitting Bull’s
leadership, the Crow engaged peacefully with Euro-American government.
The Crow were not spared from the allotment campaign that eventually reduced
Native American landholdings by sixty percent. However, Lear credits their courage to
hope in Plenty Coups’ God-given vision as the distinguishing factor that led to their
holding onto the vast majority of their land in this new era of private property.31 It is
likely that faith and hope saved them and their land from total devastation. It is not
coincidental that today the Crow are reacquiring land that was lost under allotment and
which is now being held in trust.32 Like the Crow, it will take courage to re-envision
property as an instrument of human flourishing in an era of distorted and unjust
relationships. By stewarding property in faith, with hope, and for love, human beings
may very well come to be more fully alive.
31
Ibid., 79, 137-39.
“From Removal to Recovery: Land Ownership in Indian Country,” The Message Runner, Indian
Land Tenure Foundation 4 (Fall 2009): 12, http://www.iltf.org/resources/publications
32
141
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