Takings: What Does Matter? A Response to Professor Pefialver James R. Gordley* I agree with Professor Pefialver's criticisms of modern American takings doctrine. The doctrine is incoherent and the cases conflict. The balancing test of Penn Central Transportation Co. v. New York Cityt is not helpful -it is ad hoc and may be meaningless. It is also unhelpful to ask to what extent regulation destroys the economic value of property, and misleading to try to identify a particular property right as essential and therefore sacrosanct. Indeed, Professor Pefialver's main point is correct. It does not make sense to distinguish takings of land from takings of personal property. My disagreement is that I see more hope than Professor Pefialver in one of the five theoretical approaches he discusses: the one he calls the Thomistic-Aristotelian natural law theory. This theory is not only the oldest of the five, but may be the lineal ancestor of the takings provision of the Fifth Amendment. In the sixteenth and seventeenth centuries, a group of continental jurists known as the "late scholastics," self-consciously tried to synthesize the Aristotelian moral theory of Thomas Aquinas with the law of their times, mostly Roman in origin. Few people today are familiar even with the leaders of this group: Domingo de Soto (1494-1560), Luis de Molina (1535-1600), Leonard Lessius (1554-1623) and Francisco Suarez (1548- 1617). Yet, as I have described elsewhere, these scholars were the first to give private law a theory and a systematic doctrinal structure.2 Before they wrote, the Roman law in force in much of Europe had neither. For Copyright © 2004 by the Regents of the University of California. * Shannon Cecil Turner Professor of Jurisprudence, School of Law, University of California at Berkeley. 1. 438U.S. 104 (1978). 2. JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE 69-111 (1991); James Gordley, Tort Law in the Aristotelian Tradition, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW: A COLLECTION OF ESSAYS 131 (David Owen ed., 1995); James Gordley, The Principle Against Unjustified Enrichment, in GEDACHTNISSCHRIFT FUR ALEXANDER LODERITZ 213 (Klaus Luig, Haimo Schack & Herbert Wiedemann. Eds., 2000). ECOLOGY LA W QUARTERLY [Vol. 31:291 all their subtlety, neither the Romans nor the medieval professors of Roman law were theorists.' In contrast, the late scholastics tried to explain Roman law by philosophical principles. Their work deeply influenced the seventeenth century founders of the northern natural law school of thought, Hugo Grotius (1583-1645) and Samuel Pufendorf (1632-94) who adopted many of the late scholastics' conclusions and disseminated them through northern Europe, paradoxically, at the very time that Aristotelian and Thomistic philosophy was falling out of fashion. One of conclusions of Grotius and Pufendorf and the late scholastics was that the state could not take private property, even for a public purpose, without paying the owner just compensation. Although these writers did not work out all the implications of this principle, we can better understand the principle by examining how it fits into their larger theory of justice. Professor Pefialver is correct that this larger theory of justice Arests on the idea that human actions and institutions should foster >human flourishing.=@4 As Professor Pefialver observes, the Aristotelian approach to law rests on the idea "that human actions and institutions should seek to foster 'human flourishing."' 5 To flourish means to live a life in which one's distinctively human capacities are realized to the greatest extent possible. As Pefialver notes, "[a]ctions or institutions that are utterly inconsistent with human flourishing violate the natural law."6 External things are valuable to the extent they contribute to such a life. Consequently, the state has an obligation to do distributive justice: to see that, so far as feasible, each citizen has the resources that such a life requires. Pefialver observes, citing Finnis and Aquinas, that "Aquinas's theory of property rights endorses an active role for the state in ensuring a just distribution of property, even if that means taking property from those with more and giving it to those with less." 7 Though his description of the premises of the writers of the Aristotelian tradition is correct, Professor Pefialver does not describe the implications of those premises in the same way as writers in the 3. The Roman lawyers were interested in finding concepts and rules to explain the how legal controversies ought to be decided. Medieval lawyers were interested in logically reconciling the Roman texts. Neither were interested in trying to define the concepts they were using, explaining their logical relationship to each other, and showing how one could then logically arrive at consistent doctrine. 4. Eduardo Pefalver, Is Land Special? The Unjustified Preference for Landownership in Regulatory Takings Law, 31 ECOLOGY L.Q. 227,275 (2004). 5. Id. at 276. 6. Id. 7. Pefialver, supra note 5, at 278 (citing JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 195 (1980) and THOMAS AoUINAS, SUMMA THEOLOGIAE I-I1, 0. 66, a. 7). 20041 TAKINGS: WHATDOES MATTER? Aristotelian tradition.' Pefialver argues that in the Thomistic tradition, natural law would likely govern questions of takings only at the margins. He suggests that a natural law approach would protect an individual's property in so far as necessary to promote human flourishing, but not to the extent that the natural law approach prohibited forcible governmental redistribution to provide for the necessities of other citizens.' With these relatively broad parameters, Pefialver claims that most takings questions following the Thomistic tradition would be answered variously according to a community's choice of positive law."0 As noted earlier, writers in the Aristotelian tradition did think that the state could redistribute resources among its citizens to ensure a greater measure of distributive justice-indeed, the state could do so to promote human flourishing. Nevertheless, these early writers did not believe the state should consider what particular resources, beyond those necessary for survival, a particular citizen needed in order to flourish. Nor did they believe "questions concerning when the government must compensate for takings of property to be primarily a question for positive law.""1 According to the Aristotelian tradition, the state had to answer such questions, with rare exceptions, as a matter of natural law, that is, as a matter of commutative and distributive, justice. Let us take these propositions in turn, and then see how they can help us understand the law of takings as it is today. Although the aim of distributive justice is that each person should be able to acquire the external things that he needs to live the life he should, as Grotius pointed out, the state cannot simply allocate to each person the external things that the state thinks, or the individual thinks, that he needs. That arrangement would work, as Grotius and Lessius noted, in a society like a family or a monastery where there are few people and they are on good terms.12 Writers in the Aristotelian tradition conceived of distributive justice as ensuring that each person has a fair share of wealth. By wealth, they meant roughly what we would call purchasing power. 3 A fair share, 8. Writers in the Aristotelian tradition include among others: Aquinas, the late scholastics, and, to the extent they remained under its influence, natural lawyers such as Grotius and Pufendorf. 9. Id. 10. Id. 11. Id. 12. HUGo GROTIUS, DE lURE BELLI AC PACIS LIBRI TRES (1646), II.ii.2; LEONARDUS LESSIus, DE IUSTITIA ET lURE, CETERISQUE VIRTUTIBUS CARDINALIS LIBRI QUATUOR lib. 2, cap. 5, dub. 3, no. 9. 13. Not quite, because people acquire things that are worth more to them than the amount of purchasing power they represent. A person who loses such a thing, and cannot buy another like it, will have lost more than that amount. Consequently, if someone takes or destroys it, he should pay its value to the owner even if that is more than the amount for which the owner could have sold it. If something identical is not available on the market and someone offers to buy it, the owner can sell it for a price that reflects its value to him. See James Gordley, Contract Law in ECOLOGY LA W QUARTERLY [Vol. 31:291 they acknowledged, will be understood differently in differently constituted societies. In a society ruled by the virtuous-an aristocracy- "fair share" means that wealth should ideally be divided in proportion to individual human virtue. In a democracy, each person should ideally have the same share. 4 Writers in this tradition emphasized that such principles are ideals. A democracy should not confiscate the wealth of rich people, virtuous or otherwise, and divide it up. 5 We can see one reason why it should not if we consider Aristotle's objections -which Aquinas shared- to Plato's proposal to abolish private property. Do so, Aristotle said, and there will be endless quarrels, and people will have no incentive to work or to take care of property. 6 If such evils are to be prevented, an ideal distribution of wealth can only be approximated. Distributive justice, then, aims at securing each citizen a fair share of wealth in the sense of purchasing power. Commutative justice, in contrast, preserves the share that belongs to each-if one person deprives another of resources, commutative justice requires that he make compensation for that deprivation.17 It followed that the state had no more right to deprive a citizen of his resources without compensation than any ordinary citizen. Lessius explained that even if an act is done by a public personage or the governor of the country..