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Published online by Cambridge University Press: 06 February 2018
This article explores Aquinas’ views on property in the context of the revival of interest in Thomistic property thinking in the ‘human flourishing’ perspective on property. It highlights a broad coherence with the aims of human flourishing property theory, and progressive property theory more generally. At the same time, it argues that where property theorists use Aquinas’ views as direct authority for arguments concerning current property dilemmas, complex interpretative issues arise, which cast into sharp relief foundational questions concerning the balance between voluntary and legally compelled redistribution, and between public and private law measures, for progressive property theory.
1. See Smith, Henry E, “Exclusion versus Governance: Two Strategies for Delineating Property Rights” (2002) 31 CrossRefGoogle Scholar J Leg Stud S453, “Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law” (2009) 94 Cornell L Rev 959, and “Property as the Law of Things” (2012) 125 Harv L Rev 1691; Henry E Smith & Thomas Merrill, “The Morality of Property” (2007) 48 Wm & Mary L Rev 1849; Thomas Merrill, “Property and the Right to Exclude” (1998) 77 Neb L Rev 730.
2. The ‘progressive’ perspective on property is perhaps most overtly articulated in Gregory S Alexander, Eduardo M Peñalver, Joseph W Singer & Laura S Underkuffler, “A Statement of Progressive Property” (2009) 94 Cornell L Rev 743, but it is a wider school of thought encompassing more perspectives on property than those captured in the Statement. On progressive property generally, see Timothy M Mulvaney, “Progressive Property Moving Forward” (2014) 5 Cal L Rev Cir 349; Ezra Rosser, “The Ambition and Transformative Potential of Progressive Property” (2013) 101 Cal L Rev 107; John A Lovett, “Progressive Property in Action: The Land Reform (Scotland) Act 2003” (2011) 89 Neb L Rev 739.
3. There is overlap on some points between these perspectives, as well as scholars who are not easily classifiable in these terms. On the spectrum between these two perspectives are a variety of other property theories which may display some features of these perspectives. See JE Penner, The Idea of Property in Law (Oxford University Press, 2000); see also Larissa Katz, “Exclusion and Exclusivity in Property Law” (2008) 58 UTLJ 275; AJ van der Walt, Property in the Margins (Hart, 2009); Hanoch Dagan, Property: Values and Institutions (Oxford University Press, 2011); Avihay Dorfman, “Private Ownership” (2010) 16 Legal Theory 1 and “The Normativity of the Private Ownership Form” (2012) 75 MLR 981.
4. Jane Baron, “The Contested Commitments of Property” (2010) 61 Hastings LJ 917.
5. See Thomas W Merrill & Henry E Smith, “What Happened to Property in Law and Economics?” (2001) 111 Yale LJ 357; Henry E Smith, “Exclusion and Property Rules in the Law of Nuisance” (2004) 90 Va L Rev 965.
6. See Merrill & Smith, supra note 1.
7. See Henry E Smith, “Property and Property Rules” (2004) 79 NYU L Rev 1719; “Exclusion versus Governance: Two Strategies for Delineating Property Rights” (2002) 31 J LS S453; Thomas W Merrill & Henry E Smith, “The Property/Contract Interface” (2001) 101 Colum L Rev 773.
8. Joseph W Singer, “Property as the Law of Democracy” (2013) 63 Duke LJ 1287 at 1307.
9. As Baron puts it, from the perspective of progressive property theorists, “…we can never unreflectively apply even simple property rules, but must always ask whether the application of the rule in the particular circumstances presented actually furthers the values for which the rule purportedly stands.” Baron, supra note 4 at 948.
10. The core focus of this article is the work of Gregory Alexander & Eduardo Peñalver, who have in various works articulated ‘human flourishing’ theories of property rooted in the Aristotelian tradition: see Gregory S Alexander & Eduardo M Peñalver, “Properties of Community” (2009) 10 Theor Inq L 127. Lametti also somewhat more tentatively suggested the possibility of a theory of property grounded in virtue-ethics. See David Lametti, “The (Virtue) Ethics of Private Property: A Framework and Implications” in A Hudson, ed, New Perspectives on Property Law, Obligations and Restitution (Cavendish Press, 2003) 39. However, Lametti does not commit himself to this approach, or articulate a fully developed theory of property grounded in virtue-ethics. Eric Freyfogle propounds a human flourishing theory of property, but does not rely on Thomistic or Aristotelian property theory so is not considered directly here. See, e.g., Eric T Freyfogle, “Private Ownership and Human Flourishing: An Exploratory Overview” (2013) 24 Stellenbosch L Rev 430. Jedediah Purdy articulates a property theory characterised by some commentators as falling with the progressive school of thought (see Lovett, supra note 2 and Rosser, supra note 2) which refers to the importance of human flourishing. See Jedediah Purdy, “A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates” (2005) 72 U Chicago L Rev 1237 and “People as Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to Property” (2007) 56 Duke LJ 1047. However, human flourishing is not at the core of Purdy’s thesis, which focuses primarily on freedom, and Purdy does not rely on Thomistic or Aristotelian property theory, and so is not explored in this article.
11. See Alexander, Gregory S & Peñalver, Eduardo M, An Introduction to Property Theory (Cambridge University Press, 2012)CrossRefGoogle Scholar at 87. See also Alexander & Peñalver, supra note 10 at 129. Writing alone, Peñalver disclaims any attempt to provide a ‘knock-down’ case for a virtue theory of property, limiting his aim to reintroducing Aristotelian ethical theory into discussions of property: “Land Virtues” (2009) 94 Cornell L Rev 821 at 863-64.
12. Summa Theologiae, IIaIIae 66: 1 Ad 1 (Cambridge University Press, 2002). All references to Summa Theologiae, unless otherwise indicated, are to the translation by RW Dyson, Aquinas: Political Writings.
13. IIaIIae 66: 2 responsio.
14. Finnis, John, Aquinas: Moral, Political, and Legal Theory (Oxford University Press, 1998)Google Scholar at 190. In his own natural law theory, Finnis emphasises the importance of private ownership in facilitating the attainment of the good of personal autonomy in community, as well as a possession/use distinction: see Finnis, John, Natural Law and Natural Rights (Oxford University Press, 1980) at 169–71.Google Scholar
15. Douglas Sturm summarises these arguments as arguments concerning responsibility, efficiency and harmony. Douglas Sturm, “Property: A Relational Perspective” (1986) 4 JL & Religion 353 at 376.
16. See also Drostan Maclaren, arguing, “[t]he final cause and formal reason for the existence of private property is the effective service which one expects from it, the organization of the use of material things by human community. Property is a practical consideration and by its very nature the right to private property is a relative one, since it is not always and in all circumstances the most effective means of ensuring that all men should have a fair share in the benefits of creation.” Drostan Maclaren, “Private Property and the Natural Law” (Aquinas Society of London, 10th March 1948, Aquinas Papers, No.8, Blackfriars).
17. Aquinas makes this point again in ad 2, where he says “a rich man does not act unlawfully if he anticipates someone in taking possession of something which was originally common property but then shares it with others; but he sins if he excludes others indiscriminately from making use of it”. IIaIIae 66:2 ad 2.
18. As Timothy Murphy notes, “contemporary scholars of St Thomas disagree vehemently over the proper status of law in his theology generally and over the proper role of law in his ethics in particular.” Timothy Murphy, Economic Rights in Liberalism, Catholicism and Socialism—A Theological and Philosophical Inquiry into Irish Jurisprudence (PhD thesis, St Patrick’s College, Maynooth, 2002) at 41.
19. IIa IIae 66: 2 ad 1.
20. IaIIae 94: 5 responsio.
21. Ibid.
22. IaIIae 94: 5 ad 3.
23. IaIIae 95: 2 responsio.
24. IaIIae 95: 2 responsio. However, it is important to note that at IaIIae 104: 1 responsio, Aquinas emphasises the significance of the fact of institution as a source of force for human law in addition to reason. While Aquinas clearly speaks in terms of derivation from the natural law, Murphy correctly notes that deduction from principles seems inconsistent with the notion of “practical reasoning” central to his theory of natural law: Murphy, supra note 18 at 47.
25. IaIIae 95: 4 responsio.
26. There is substantial academic disagreement on this issue, which is beyond the scope of this article to resolve. For example, Dyson locates the ius gentium outside of natural law. Dyson, supra note 12 at 134. In contrast, Maclaren argues that the ius gentium is natural rather than positive law. Maclaren, supra note 16. Similarly, JB McLaughlin contends that the ius gentium, and accordingly the claim to possess property privately, falls within natural, rather than positive law. JB McLaughlin, “St. Thomas and Property” (1920) 9 Studies 571.
27. As Finnis puts it, the ius gentium is “the law that is substantially adopted by all peoples (and in that sense is positive law) because recognized virtually everywhere as what is required by reason (natural law).” Finnis, Aquinas, supra note 14 at 268. See also Mortimer J Adler, “A Question About Law” in Brennan, Robert E OP, ed, Essays in Thomism (Sheed & Ward, 1942) 205 at 214.Google Scholar
28. As Richard Schlatter argues, “St. Thomas made no sharp distinction between the ius gentium—the body of reasonable additions to the natural law, including the laws of property—and the enacted law of the state. It was possible for him to say that private property was natural and at the same time to say that in any specific case it had been instituted by human lawgivers.” Richard Schlatter, Private Property—The History of an Idea (George Allen & Unwin, 1951) at 57. See also William J McDonald, The Social Value of Property According to St. Thomas Aquinas (Catholic University of America Press, 1939) at 89-93; David Lametti, “The Objects of Virtue” in Alexander, Gregory S & Peñalver, Eduardo M, eds, Property and Community (Oxford University Press, 2010) 1 at 25.Google Scholar
29. IIa IIae 66: 7 responsio. In his later discussion of the virtue of charity, Aquinas notes that the needs of dependents, as well as the needs of an individual in possession of property, determine what constitute superflua: IIaIIae 32: 5 responsio.
30. IIaIIae 66: 7 responsio. Finnis argues that this discretion is not unfettered—an individual’s judgment of his/her needs and the needs of any dependents must be practically reasonable. Finnis, Aquinas, supra note 14 at 194.
31. Alfred O’Rahilly argues that Aquinas’ teaching on superflua indicates that “…there is a quantitative limit to what can be covered by the property-rights of any individual” and that the community as a whole can lay claim to what goes beyond that limit. Alfred O’Rahilly, “St. Thomas’s Theory of Property” (1920) 9 Studies 337 at 348.
32. IIaIIae 66: 2 ad 2.
33. IIa IIae 66: 7.
34. IIaIIae 66: 7 responsio. He explains, “[p]roperly speaking, to take and use another’s property secretly in a case of extreme necessity does not have the character of theft, because that which someone takes in order to support his own life becomes his own by reason of that necessity”. IIaIIae 66: 7 ad 2.
35. IIaIIae 66: 7 ad 3. Rev. Edward Cahill summarised the rights and claims over superflua as follows: “the use of, or revenues from, superfluous goods is due to the needy. The owner’s obligation of giving them is not one of strict justice, except in case of extreme or quasi-extreme (evidens et urgens) need, seeing that it is only in such a case that he allows the needy person to seize the goods without the owner’s permission. But the lawful exercise of the owner’s rights over his own superfluous goods in the face of the needs of others is limited to his right in deciding as to what particular needy person or class of persons he will assign them”. Rev. Edward Cahill SJ, The Framework of a Christian State—An Introduction to Social Science (MH Gill & Son, 1932) at 558.
36. McDonald goes so far as to argue, “… the true Thomistic notion of private property attributes to it nothing of an absolute or unrestricted character but envisions it mainly as a system of private production for public consumption.” McDonald, supra note 28 at 30.
37. Honoré, AM, “Ownership” in AG Guest, ed, Oxford Essays in Jurisprudence (Oxford University Press, 1961) 107 Google Scholar at 145.
38. See Joseph W Singer, “Democratic Estates: Property Law in a Free and Democratic Society” (2009) 94 Cornell L Rev 1009; Gregory S Alexander “The Social Obligation Norm in American Property Law” (2009) 94 Cornell L Rev 745.
39. For example, within the ‘information’ grouping, there is debate concerning whether the right to exclude, or the right to ‘set the agenda’ for property should be regarded as the essence of property: compare Thomas W Merrill, “Property and the Right to Exclude” (1998) 77 Neb L Rev 730 and Larissa Katz, “Exclusion and Exclusivity in Property Law” (2008) 58 UTLJ 275.
40. See Singer, supra note 38; van der Walt, supra note 3; AJ van der Walt, “The Modest Systemic Status of Property Rights” (2014) 1 JL Property & Soc’y 15.
41. See Rashmi Dyal-Chand, “Sharing the Cathedral” (2013) 46 Conn L Rev 647; Eduardo M Peñalver, “Property as Entrance” (2005) 91 Va L Rev 1889.
42. Others invoke human flourishing in their property theory without relying on Aristotelian or Thomistic theory: see the discussion supra note 10.
43. Peñalver, supra note 11. He does not dispute the relevance of economic analysis, but objects to “a careless equation of efficiency with goodness”. Ibid at 863.
44. Ibid. Peñalver also analyses the Thomistic approach to property although without specifically endorsing or relying upon it in “Is Land Special?: The Unjustified Preference for Landownership in Regulatory Takings Law” (2004) 31 Ecol LQ 227 at 278-82.
45. Peñalver, supra note 11 at 870-71.
46. Ibid at 864.
47. Ibid at 870.
48. Ibid at 864-65.
49. Ibid at 866.
50. Ibid at 869. Writing elsewhere with Alexander, he suggests: “[l]egal intervention can also clarify social obligations and coordinate collective actions necessary for human flourishing where private owners would otherwise struggle to do so on their own”. Alexander & Peñalver, supra note 11 at 93.
51. Peñalver, supra note 11 at 871.
52. Ibid, relying on ST Ia IIae: 95 art 1 and 96 art 2.
53. Ibid at 872.
54. Ibid at 874.
55. As he notes, “…decisions about land use impact human flourishing in myriad ways and are, therefore, thoroughly suffused with moral content.” Ibid at 876.
56. Ibid at 879.
57. Ibid at 878. Peñalver also relies on this point as made by Aquinas in “Property as Entrance”, supra note 41 at 1918. There he emphasises the usefulness of property in community settings.
58. Peñalver, supra note 11 at 879.
59. IaIIae 61: 3 responsio, translated by WD Hughes OP, Summa Theologiae Volume 23 (Virtue) (London: Blackfriars, 1969).
60. Peñalver, supra note 11 at 880. Writing elsewhere, Peñalver adopts John Finnis’ interpretation of Aquinas as supporting governmental redistribution of property in order to ensure a just distribution. See Peñalver, supra note 44 at 281.
61. Peñalver, supra note 11 at 881.
62. ST IIaIIae 32: 5 responsio, translated by RJ Batten OP, Summa Theologiae Volume 34 (Charity) (London: Blackfriars, 1975). He further suggests at this point, “[t]he probable and normal course of events is what must guide us in working out what is superfluous and what is necessary.” In ST IIaIIae 32: 6, he distinguishes between things that are necessary to keep individuals and/or their dependents alive, and things that are necessary to maintain a livelihood in keeping with one’s social position.
63. Peñalver, supra note 11 at 882.
64. Ibid at 882-83.
65. Eduardo M Peñalver & Sonia K Katyal, Property Outlaws—How Squatters, Pirates, and Protestors Improve the Law of Ownership (Yale University Press, 2010) at 135.
66. Ibid at 153-56.
67. Ibid at 136-38.
68. Alexander, supra note 38.
69. Ibid at 761-62.
70. Ibid at 768.
71. Ibid at 771, 774.
72. Ibid at 774.
73. Ibid at 815.
74. Ibid at 819.
75. Alexander & Peñalver, supra note 10 at 127, 135.
76. Ibid.
77. Ibid at 141-42.
78. Ibid at 143.
79. As they put it, “there is no a priori connection between the social dependence we have been describing and the need for, or permissibility of, direct state action in support of human capabilities.” Ibid at 145.
80. Ibid.
81. Ibid at 146. The complementary role of private communities is acknowledged later as operating alongside state intervention to compel redistribution necessary to secure human flourishing. See 149; see also Alexander & Peñalver, supra note 11 at 95-97, 125-26.
82. Alexander & Peñalver, supra note 10 at 146-48; see also Alexander & Peñalver, supra note 11 at 86-87.
83. For discussion of the ‘sharing’ perspective within progressive property theory, see Dyal-Chand, supra note 41; AJ van der Walt, “The Modest Systemic Status of Property Rights” (2014) 1 J Law, Property & Soc’y 15.
84. For further discussion of this divide, see Baron, supra note 4.
85. Peñalver’s discussion of industry in “Land Virtues” is a good example: Peñalver, supra note 10 at 877-80. See similarly Joseph W Singer, “Property as the Law of Democracy” (2013) 63 Duke LJ 1287 at 1288-89.
86. See Smith, “Mind the Gap”, supra note 1 at 963-71.
87. Ibid at 976.
88. See Smith, “Exclusion versus Governance”, supra note 1.
89. In Properties of Community, Alexander and Peñalver state that a full argument on this point is beyond the scope of that essay: Alexander & Peñalver, supra note 10 at 146.
90. See Alexander, Peñalver, Singer & Underkuffler, supra note 2.
91. See Joseph W Singer & Jack M Beerman, “The Social Origins of Property” (1993) 6 Can JL & Juris 217.
92. As Finnis notes, Aquinas’ account of property proceeds from the presupposition that all human beings are equal, and defines the permissible scope of private property by reference to that presupposition. Aquinas treats property rights as “matters of interpersonal Justice” concerning relations between individuals, not between individuals and external resources. Finnis, Aquinas, supra note 14 at 188-89.
93. See the discussion at notes 24 to notes 28 above.
94. For a persuasive analysis of the distinction between the institution of property, and particular property rules, see Jeremy Waldron, The Right to Private Property (Clarendon Press, 1988).
95. See Alexander & Peñalver, supra note 11 at 86; Alexander & Peñalver, supra note 10 at 147.
96. Andrew B Lustig, “Property, Justice and The Common Good: A Response to Paul J Weithman” (1993) 21 J Religious Ethics 181 at 184.
97. Andrew B Lustig, “Natural Law, Property and Justice: The General Justification of Property in John Locke” (1991) 19 J Religious Ethics 119 at 144. He further argues, “[t]he priority of property in common implies that property exists for the common good. Thus, when necessary, systematic redistribution to ensure that all receive the means to their subsistence is not merely allowed, but required, by the force of that natural law perspective.” Ibid at 145.
98. Lustig refers to Aquinas’ work “On Kingship” and contends: “[i]ndeed, as Thomas makes clear in “On Kingship”, it is the ruler, finally, who is charged to distribute and regulate property for the common good. Only within and secondary to the context of the ruler’s authority do notions of “individual discretion” make sense … Surely, if Thomas deems such allotments of property to be appropriately the king’s prerogative, then collective mechanisms of government redistribution might also be justified in modern democracies, despite our having left the monarchy behind.” Lustig, note 96 at 184. (In his discussion of the duties of a King in On Kingship, Aquinas refers to the ruler’s responsibility to procure “a sufficient supply of the things required for proper living”: see St Thomas Aquinas, On Kingship—To the King of Cyprus, translated and revised by Gerald B Phelan with introduction and notes by I TH Eschmann, OP (The Pontifical Institute of Medieval Studies, 1949) at chapter III (I, 14) para 118). See also Schlatter, contending that Aquinas followed Aristotle and regarded the State as bound to distribute and regulate private property in the interests of the common good: Schlatter, note 28 at 50-51. Etienne Gilson says that for Aquinas, matters concerning the exchange and distribution of goods necessary for human life depend “directly or indirectly on the State” rather than on private commerce, with the State obliged to secure the common good. Etienne Gilson, The Christian Philosophy of St. Thomas Aquinas, translated by LK Shook (Random House, 1966) at 324. Similarly, Frederick Copleston SJ argues that while Aquinas should not be represented as participating in the social and economic controversies of the 19th century, “…the policy of laisser-faire would not be compatible with his view of the purpose and function of political society and government. The task of the State is actively to produce the conditions under which a full human life can be lived.” Frederick Copleston, Thomas Aquinas (Search Press, 1976) 238-39. See also McDonald, note 28 at 39-42 and Peñalver, note 44 at 280-81 for similar interpretations.
99. Dyson, supra note 12 at xxxi-xxxii. See also Finnis, Aquinas, supra note 14 at 195 and Natural Rights, supra note 14 at 173.
100. Marcus Lefébure, “‘Private Property’ According to St Thomas and Recent Papal Encyclicals” in St Thomas Aquinas: Summa Theologiae Volume 38: Injustice, translated by Marcus Lefébure (London: Blackfriars, Eyre & Spottiswood, 1975) 275 at 277. He says that this principle was implicit in St Thomas’ general principles and some of his statements on authority’s role in society in the Summa. He points to a more explicit statement of this power for the State in De Regimine Principium (I, 15), where Aquinas said that it was part of the King’s business to “…correct any lopsidedness, supply any lack and strive to perfect whatever can be bettered.” Ibid at 278. The correct reference to De Regimine Principium appears to be to Book 2, Chapter 15, where it is stated, “[t]here is another thing that pertains to the good government of a kingdom, province, city, or any other rule, and that is that the ruler, who is in charge of the needs of paupers, minors, and widows and of assistance to foreigners and pilgrims, should provide for them from the common treasury.” However, this section is attributed to Ptolemy of Lucca, rather than Aquinas. See Aquinas, On the Government of Rulers, translated by James M Blythe (University of Pennsylvania Press, 1997) at 138.
101. See also McDonald, supra note 28 at 40-43, arguing for a power for the State to enact property laws, impose taxes, and exercise the power of eminent domain.
102. Paul J Weithman, “Natural Law, Property and Redistribution” (1993) 21 J Religious Ethics 165, 170-71.
103. Ibid at 172-74. Indeed, Weithman notes that in a maximally effective welfare state, there would be no poor, and therefore no opportunity for virtuous activity through redistribution.
104. See also McDonald, supra note 28 at 152-54, arguing that the state for Aquinas cannot “take the place of human modes of sharing goods such as friendship and love”, for which external goods are necessary instruments.
105. Politica Book II 4-5 1263b, in The Works of Aristotle, vol X, translated by Benjamin Jowett, edited by WD Ross (Clarendon Press, 1921).
106. Ibid. On this aspect of Aristotle’s theory, see Lametti, supra note 28 at 8-13.
107. Lametti, supra note 28 at 12. Lametti also emphasises the significance of moderation as one of the virtues promoted by property for Aristotle. Ibid at 14-15. See also Richard McKeon, “The Development of the Concept of Property in Political Philosophy: A Study of the Background of the Constitution” (1938) Ethics 297 at 304-12.
108. For development of this response, see Lustig, supra note 97 at 123.
109. See Alexander & Peñalver, supra note 10 at 147-49 and Alexander & Peñalver, supra note 11 at 95-97.
110. See Alexander & Peñalver, supra note 10 at 148-49 and Alexander & Peñalver, supra note 11 at 92-94.
111. See Peñalver, supra note 11 at 870, arguing: “[a] complete virtue jurisprudence would include an account of the areas in which collective decision making would be expected to generate outcomes superior to individually determined conduct.”
112. For this argument, see Gregory S Alexander, “Property’s Ends: The Publicness of Private Law Values” (2014) 99 Iowa L Rev 1257.
113. For discussion of this aspect of legal realism, see Joseph W Singer, “Private Law Realism” (2014) 1 Crit Analysis of Law 226 and “Legal Realism Now” (1988) 76 Cal L Rev 465. For examples of progressive property theory rooted in a legal realist approach, see Joseph W Singer, No Freedom Without Regulation: The Hidden Lesson of the Subprime Crisis (Yale University Press, 2015) and Entitlement: The Paradoxes of Property (Yale University Press, 2000).
114. For discussion of the idea of different ‘property audiences’ and their variable information needs, see Thomas W Merrill, “Property and Sovereignty, Information and Audience” (2017) 18 Theor Inq Law 417. See relatedly, Carol M Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership (Westview Press, 1994); Henry E Smith, “The Language of Property: Form, Context, and Audience” (2003) 55 Stan L Rev 1105.
115. As Alexander and Peñalver put it themselves: ‘…the determination that a particular use or allocation of property would contribute to human flourishing is only the first step in a more complex analysis. A separate question always remains how best, if at all, the law should seek to foster human flourishing (by mandating or encouraging that use or allocation) in a way that gives due regard to the various components of human flourishing.’ Alexander & Peñalver, supra note 11 at 94.
116. See Peñalver, supra note 11 at 64-65.
117. For persuasive arguments concerning the capacity of legal standards to generate predictable outcomes and the value of vagueness in law, see Joseph W Singer, “The Rule of Reason in Property Law” (2013) 46 UC Davis L Rev 1375; also Jeremy M Waldron, “Vagueness and the Guidance of Action” in Andrei Marmor & Scott Soames, eds, Philosophical Foundations of Language in the Law (Oxford University Press, 2011) at 58 and “Thoughtfulness and the Rule of Law” (2011) 18 Brit Acad Rev 1; Timothy Endicott, “The Value of Vagueness” in Andrei Marmor & Scott Soames, eds, Philosophical Foundations of Language in the Law (Oxford University Press, 2011) at 14.
118. As discussed above, Aquinas argued, “[i]f one is to speak quite strictly, it is improper to say that using someone else’s property taken out of extreme necessity is theft. For such necessity renders what a person takes to support his life his own.” ST IIaIIae 66: 7 ad 2.
119. At one point in their discussion, Peñalver and Katyal seem reluctant to commit to a defence of necessity extending beyond urgent, dire physical needs, saying, “[w]e limit ourselves to the observation that there are plausible theories of distributive justice that would be amenable to permitting some additional room for self-help beyond the extreme case of, say, imminent starvation.” Peñalver & Katyal, supra note 65 at 136. However, they subsequently appear to commit to such a broader understanding of necessity, for example referring to the current legal defence of necessity as “profoundly underinclusive” (at 153) and arguing that economic necessity must be recognised as a basis for a necessity defence (at 153).
120. Smith, “Mind the Gap”, supra note 1 at 976.
121. For examples of such responses to the criticisms levied by information property theorists, see Joseph W Singer, supra note 8, and Gregory S Alexander, “The Complex Core of Property” (2009) 94 Cornell L Rev 1063 at 1063-68.
122. Sturm, supra note 15 at 380. Sturm further notes that Aquinas’ conception of property “….is suggestive of the notion that the world, under the principle of common use, is a repository of possibilities properly available for the general enrichment of life. It is not a set of things to be distributed according to the doctrine of absolute property.” Ibid. See similarly Lametti’s summary of Aquinas’ views on property: “…private property is an instrumental good (analogous to utility) but in the service of human development (dignity, development) within a Christian framework”: Lametti, supra note 28 at 33.
123. Alexander & Peñalver, supra note 11 at 86.
124. Katherine Archibald, “The Concept of Social Hierarchy in the Writings of Aquinas” (1949) 12 The Historian 28 at 53, reproduced in John Dunn & Ian Harris, eds, Aquinas Volume I (Edward Elgar, 1997) 168 at 190-91. See similarly Gilson, supra note 98 at 223.
125. Archibald, supra note 124 at 53.