Intergenerational Justice and the “Hereditary Principle”

Law & Ethics of Human Rights 2014; 8(2): 195–217 J.E. Penner* Intergenerational Justice and the “Hereditary Principle” Abstract: Is it possible to justify the passing of property rights from one generation to the next, and the acquisition of citizenship rights, on the basis of inheritance? This paper raises two considerations which indicate that typical luck egalitarian arguments against the operation of any “hereditary principle” in the intergenerational succession of economic and political rights are not conclusive. Both considerations concern autonomy. The concept of inheritance can be seen to be justified when the social connectedness of individuals is appreciated – inheritance reflects the embeddedness of individuals in the lives and projects of others both in the past and in the future. So while there may be good liberal reasons to reject inheritance as a mode of property succession, for example that it might perpetuate or initiate unequal distributions, these do not begin to suggest that nothing can be said in its favor, morally speaking, if the autonomy of individuals is understood to be situated in particular social structures. A similar case can be made for the claim that rights to citizenship are best seen as reflecting a “duty to govern”; those most embedded in the life-ways of a community would appear to be best placed to shoulder this duty. Finally, the paper considers an argument from “familiarity,” which suggests that it is not wrong to favor to some extent individuals whose genetic and cultural characteristics reflect one’s own, and concludes that such a consideration can play a role in justifying to some extent the justification of a “hereditary principle.” DOI 10.1515/lehr-2014-0010 Introduction In this paper I explore how our intuitions about bequests and inheritance of property contribute to our understanding of one aspect of intergenerational justice – the legitimacy of different modes of “succession” to the rights of our forebears. I suggest that there is a kind of justification for the rights of children *Corresponding author: J.E. Penner, Faculty of Law, National University of Singapore, Eu Tong Sen Building, 469G Bukit Timah Road, Singapore 259776, Singapore, E-mail: [email protected] Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 196 Law & Ethics of Human Rights to succeed to the property of their parents that has some traction against the common liberal view that such a right undermines distributive justice, in particular the principle of fair equality of opportunity. The argument will have the following steps. 1. First, I shall argue that while a distinction should be drawn between the two main regimes of succession, i.e. bequest and inheritance, to the extent that either are justified, they are justified on a model of inheritance, that is as a right of children to succeed to the property of their parents, not on a model of bequest, i.e. a right of owners to make postmortem gifts to whomever they wish. Drawing upon previous work, I shall argue that the right to property is in fact much less “individualistic” than commonly perceived and must be understood in light of the “social thesis.” This is the idea that the life of any individual is intimately connected with the lives of others, both in terms of economic cooperation and in terms of flourishing in other ways: culturally, aesthetically, and so on. According to this view, the power to transmit property is not to be conceived of as a way for the owner (primarily, at least) to enhance their own autonomy or pursue their own self-interest. It is one of many means for leading a valuable life, a life lived with others. If this is right then there is a sense in which one’s property “belongs” to one’s life, and as this life is necessarily social, historical, and local, one’s property should descend to those most connected with that life. To the extent bequest is justified, it is as an instrumental variation on inheritance which better meets the goals that justify inheritance, but which cannot be achieved by a regime of inheritance in modern socioeconomic conditions. This section, then, provides a limited, but not insignificant, argument for the “hereditary principle”, the principle that certain rights should descend on the death of an individual to that person’s descendants. 2. I shall then pursue a Burkean analogy with the idea of succession to political authority, in particular succession to the rights of a citizen, for example that of a child born to British parents becoming entitled to the (political) rights of a British citizen. The argument here involves several steps, but the main theme is that if political power is regarded as a dutyencumbered power, which I think political theorists should want to accept, then the succession to political power is ideally achieved by a mode of succession that places that duty-encumbered power in the hands of those best able to discharge the relevant duty. Insofar as the discharge of that duty involves not only the observation of universal morality but also includes a significant ethical dimension – roughly, maintaining and enhancing the particular “way of life” of a political body – then that duty can only be discharged by those familiar with and sympathetic to that way of life. The Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 3. 197 most obvious successors to such positions are those who are raised in that way of life. This suggests that there will be a significant “hereditary” aspect to a justifiable regime of political succession. Returning to the case of family inheritance, I shall offer some thought experiments which will enrich our understanding of the value that people may justifiably place on familiarity, and this further bolsters the case for inheritance. This sort of justification has particular traction against liberal objections to inheritance, because it seems to suggest that only by allowing people to realize this value will they be given a full opportunity to realize their autonomy. Inheritance and Bequest Distinguished Inheritance is a regime of succession to property under which the descendants of a person have an indefeasible right to his or her property on death. Civilian and Islamic legal regimes of succession are regimes of this kind. Under these regimes there is no, or limited, freedom of testamentary disposition. For this reason, common lawyers involved in trusts and estate planning working in places such as the UK, the US and the Cayman Islands often refer (usually with derogatory overtones) to such regimes as “forced heirship” regimes. In contrast, bequests concern postmortem gifts.1 These can of course be made to one’s descendants and other dependents, but typically in these regimes testators (the donors of postmortem gifts) have unrestricted freedom of testamentary disposition.2 Though people tend still to use the word “heir” in England and other common law jurisdictions, typically there are no longer, properly speaking, heirs in these countries.3 An heir, strictly speaking, has a right to inherit (all or a portion of) his predecessor’s property on death. Under the old rule of primogeniture in England 1 Strictly speaking, in English law the power to “bequeath” has been abolished. Under the rules prior to 1925 there was a strict division between real and personal property, with different terms applying to testamentary dispositions of property of various kinds. Gifts of chattels were “bequests” – one “bequeathed” chattels, gifts of land were “devises” – one “devised” land, and gifts of sums of money were “legacies.” However “bequest” and “bequeath” will serve as compendious terms in this essay to distinguish testamentary dispositions from inheritance. 2 Though there may be, as in England, statutes under which dependents of testators insufficiently provided for may have a claim against the testator’s estate which can override his testamentary dispositions. See, e.g. S. 2 of the Inheritance (Provision for Family and Dependents) Act, 1975, c. 63 (U.K.). 3 The rules in the State of Louisiana and the Province of Quebec are to some extent different, these being civil law jurisdictions. Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 198 Law & Ethics of Human Rights the first-born son took all of his father’s land upon the latter’s death, or if there were no son, a daughter would take, or all the daughters in equal shares if there were more than one. No one in England any longer enjoys such rights in land. The only thing that an English man or woman may now inherit are titles, the most important such title being, of course, the Crown.4 Liberal Objections to Succession by Inheritance or Bequest The succession to property either by inheritance or bequest is commonly regarded as unjustifiable from a liberal political theoretical perspective. The most general objection is that most famously associated with Rawls and his principle of fair equality of opportunity.5 Very plausibly, the distributive consequences of succession regimes advantages some individuals more than others, and on luck egalitarian principles such advantages would appear to be illicit. No one, so the reasoning goes, deserves windfalls of this kind. (This reasoning can, clearly, also be extended to inter vivos gifts, especially large gifts.) Those in favor of steep death duties or inheritance taxes could plausibly justify them with these sorts of considerations in mind, or as luck egalitarian capitalists (like Haslett)6 to left-libertarians (like Otsuka)7 argue, these sorts of transfers must be restricted if not abolished altogether.8 4 There are other differences between inheritance regimes and bequest, or testamentary, regimes, though these are not, one might say, analytic. Most significantly, it is typically the case that in inheritance regimes the heir is regarded as immediately vested with the inherited property on the death of his predecessor, while testamentary regimes typically introduce an office-holder, the “personal representative” (“executor” or “administrator”), who immediately succeeds to the property of the testator (or any person dying, whether or not they have made a will), and who then administers the estate, first paying funeral expenses and creditors of the deceased, and only then distributing the property to those chosen, or those who are entitled under the rules of intestate succession. 5 JOHN RAWLS, A THEORY OF JUSTICE 64–65, 73–78, 447–48 (rev. ed. 1999); John Rawls, POLITICAL LIBERALISM 6 (expanded ed. 2005). 6 David. W. Haslett, Is Inheritance Justified, 15 PHIL. & PUB. AFF. 122, 126–37 (1985). 7 MICHAEL OTSUKA, LIBERTARIANISM WITHOUT INEQUALITY 38 (2003). 8 A different consideration arises from a concern with the exercise of powers in so far as they can be justified on the basis of individual autonomy, which applies specifically to regimes of bequest. Why should anyone have the right to determine how their property is to be used after their death? They are dead, after all. If you cannot take it with you there seems little sense in allowing you to direct those living what they should do with what you have, necessarily, left Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 199 Even so, I would hazard that even liberal political theorists who find these arguments against succession rational and persuasive might suffer conflicting intuitions when they consider how they ought personally to decide to leave their property by will, or the claims they feel they might have on their own parents, or more importantly, how they would judge others when they are similarly confronted. The vast majority of people do leave their property to their children, which suggests that it is not obvious that there is nothing that can be said in favor of their doing so.9 These conflicting intuitions deserve some examination, at least to the extent of asking why, despite the great influence of liberal theories under which bequest and inheritance look to be prima facie unjust, or at least difficult to justify, for most people these considerations do not weigh as heavily as they might when they make their own personal decisions, whether as testators, deciding to make postmortem gifts in one way or another, or as heirs, in determining whether to accept or renounce property coming to one on another’s death.10 There are two bases upon which either bequest or inheritance or both might be justified, which most liberal theorists would accept to some extent, which I mean to put to one side. The first is that some transfers from parents to children, or more broadly the application of a parent’s resources so as to benefit their children, may be justified simply as a matter of a parent’s duty to care for their children until they can look after themselves. So in the case of minor children, most people are not particularly concerned that a parent should have a right on death to so provide for them, or even that minor children would have an indefeasible claim on their parent’s wealth on death. So children (and behind, and it is not clear what sort of autonomy interest is advanced by directing what should occur after one’s death. I am not going to pursue this consideration here. The issues here are complicated, in particular concerning whether, and if so, in what ways, a person can be interested in the way the world goes after their death. For a powerful and subtle recent exploration of this interest, inter alia, see SAMUEL SCHEFFLER, DEATH AND THE AFTERLIFE (Niko Kolodny ed., 2013). 9 In “forced heirship” regimes like France, regimes under which children are indefeasibly entitled to a share of their parents’ wealth on death, one finds significant and traditional opposition to the idea that parents should be entitled to disinherit their offspring, and this is one of the reasons that a disposition on trust which effectively does just that might not be recognized as being legally effective in France as being contrary to the principle of ordre public, i.e. as inconsistent with the moral and social values of the French law of property. See Convention on the Law Applicable to Trusts and on Their Recognition, art. 18, July 1, 1985, 1664 U.N.T.S. I-28632. 10 This might, of course, just be a case of widespread hypocrisy, or something else again, see, e.g. GERALD A. COHEN, IF YOU’RE AN EGALITARIAN, HOW COME YOU’RE SO RICH? (2001), but I proceed on the basis that the conflict of intuitions I identify is felt often enough so as to merit our attention. Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 200 Law & Ethics of Human Rights others), in so far as they are dependent upon their parents, may justifiably inherit or receive bequests in so far as this is for their maintenance, education and so on. But this justification would not entitle independent, adult children. Secondly, small bequests or inheritances, just like small transfers inter vivos, can also be justified as expressive of the relationships between people. People use transfers of property, on birthdays and holidays, to express their affection for others, and similarly, often leave token gifts in their wills to do just that. In what follows I am not concerned to justify such transfers, nor am I relying upon any extension from the justifications of such transfers to consider the justifications, if there are any, for bequest and inheritance generally. What I want to consider are the “full-blown” concepts of bequest and inheritance, i.e. that a testator should be able to dispose of significant amounts of property irrespective of the needs of the recipients or that a fully competent adult child should have an indefeasible claim to inherit the property of his forbears irrespective of any dependency they may have on those forbears. Justifying Inheritance In this section and the next I shall draw upon the work of Adam Smith to argue that the concept of inheritance is prior to the concept of bequest, historically and, more important, conceptually. I shall then argue that, while inheritance is more or less obviously justifiable, unfettered testamentary freedom is not; nevertheless, regimes of bequest have, in the modern world, become justifiable, since we assume that most people will not “disinherit” those who would be their heirs under the principles underlying the justification of inheritance. In much the same way that I have argued elsewhere11 that we allow individual or sole ownership as a derivative variation on co-ownership, even though co-ownership ultimately justifies the rights of ownership of any kind, we allow freedom of testamentary disposition because there is a legitimate role for a right to bequeath, even though when understood properly this is a derivative variation on inheritance. In his Lectures on Jurisprudence, Adam Smith claimed that the right of inheritance historically preceded the introduction of testamentary bequest.12 The underlying idea is straightforward. Since from primitive times, families 11 James. E. Penner, Ownership, Co-ownership, and the Justification of Property Rights, in PROPERTIES OF LAW: ESSAYS IN HONOUR OF JIM HARRIS 166 (Timothy A.O. Endicott et al. eds., 2006). 12 ADAM SMITH, LECTURES ON JURISPRUDENCE 39, 462–63 (Ronald L. Meek et al. eds., 1982). Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 201 worked together to ensure their livelihood, the material goods which they together acquired belonged to them, in a sense, as a corporate body, the family. While there might be a person who was the “head of the household”, typically the elder male, who had title to the goods so as to deal with them for the purposes of exchange and so on, this title, we would say today, was that of a steward or trustee, not that of an individual beneficial owner. Therefore, it naturally followed that upon the death of the head of the household, the succession to that title would go, as of right, to the person most suited to succeed in that role. There was no question that the succession to that title was a matter of testamentary choice by the incumbent. The idea of testamentary succession arrives later, and is normally justified on the basis of the inconvenience to which strict rules of succession, like a rule of primogeniture, give rise. Underlying this way of conceiving of the legitimacy of inheritance are two central ideas. The first is what might be called the “social thesis”, which I have mentioned already. If the social thesis obtains, then a certain picture emerges of the way in which a title-holder of property holds the powers which go with title to property, i.e. the power to license particular others to make use of the property, the power to give it away, to sell it, and so forth. Such a title-holder is not to be conceived of as some hermit, alone dealing with his or her land and goods, but is rather a social creature whose exercise of those powers of title will naturally “take on board” the interests of those others with whom he or she is connected. I think this perspective has large lessons for us today, even though we may rightly take into account the important individual-centric value of autonomy. It is an unoriginal thought that liberal theorists, in the way they regard the basic human rights of individuals, are susceptible to a picture of the individual as “atomized”, not connected in any constitutive way to his fellow human creatures. Hence the prevalence in this sort of thinking of individuals encountering each other in a “pre-social” state of nature, and of thought experiments involving groups washed up (with apparently no prior connections) on a desert island who now face the daunting task of fairly divvying up the island’s resources. According to this view, from the perspective of justice or political morality everyone is essentially “in it for themselves,” though making one’s way will involve some reciprocal forbearances. To put this another way, in so far as political morality is concerned, the world is modelled as one in which every individual has to respect the rights of others, but needn’t care about others, for how well the lives of others go is not an aspect of an individual’s well-being that is of concern to any sound rendering of justice between persons. In opposing this sort of view I have argued elsewhere that, first, any concept of property which can be genuinely shown to underlie atomization must be a Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 202 Law & Ethics of Human Rights caricature of our actual, “lived” (if that is the right way to put it), institution of property.13 More specifically, the caricature of the “hermit owner,” an individual who basically never shares the use of his property, much less ever thinks of giving it away, is to be firmly resisted. I have also argued that on any sound understanding of property, the idea of co-ownership is actually fundamental, i.e. that individual ownership is actually parasitic on the concept of co-ownership.14 The caricature of the sole-owning hermit-like property owner underlying the concept of the atomized individual goes hand in hand with, or is in some sense the flip side of the coin of, a caricature of economic cooperation which treats the fundamental nature of contracts as exchanges of “goods,” conceived of as property rights. The idea is most easily suggested by thinking of the employment relation as one in which the employee “sells” his labor to the employer, in which his remuneration is conceived of as “compensation,” and his contribution to whatever the enterprise is appears as an input of production, the use of “human resources.” Clearly, Adam Smith’s characterization of the property and economic relations among individuals under a regime of inheritance suggests a very different picture. Another aspect of the picture conjured up by a regime of inheritance is related to the social thesis, but must be considered separately. This is the idea, probably made most of by Edmund Burke,15 that human life and its various projects are not only social, but are, in a sense, immortal: individual humans participate in a stream of family, culture, society, and manners, which is essentially historical, the origin of which lies far in the past and which is in theory perpetual. If this is right, it will obviously shape our understanding of succession to property rights. So long as the pursuit of this human history and these human projects is dependent upon the use of resources, then in a sense the property “belongs” to those projects, and as individuals shift off this mortal coil and are replaced by others, the project remains while the collection of individuals changes over time. A family precedes and outlives its individual members, as do political institutions, the practices of music, art, and literature, one’s language, and everything else which makes human life what it is. In consequence, it would be bizarre to hold that those leaving in virtue of their deaths should be entitled to remove these necessary resources from the project (by decreeing that all the resources which they control be burnt, for example). 13 James E. Penner Property, Community, and the Problem of Distributive Justice, 10 THEOR. INQ. L. 193, 194–98 (2009). 14 PENNER, supra note 11. 15 EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 31–34, 95 (Leslie G. Mitchell ed., Oxford University Press 1993) (1790). Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 203 Those who join the project at birth, while not “deserving” in any relevant sense of their right to participate in the use of resources devoted to the projects of human life, are certainly entitled to participate, and thus entitled to inherit those resources, simply because, as humans connected to other humans who are involved in the project in question that uses those resources, they are the obvious stewards of those resources for their own generation. As a matter of justifying the positive rules of property law, this understanding of inheritance makes most obvious sense, of course, for legally recognized corporate bodies such as, for example, university colleges, or religious orders. It is less obviously the justification for family inheritance, for families are not usually treated as legally recognized corporate bodies in positive law. Nevertheless families, on Smith’s characterization, have enough of this character to make sense of positive rules of inheritance. Smith claims that positive law rules of inheritance, reflecting this understanding of the corporate family, precede rules of bequest. What would justify moving from the prior regime of succession to a subsequent regime of bequest? Justifying Bequest: A Transition from a Perfect Duty to an Imperfect One From the foregoing, one can see why the concept of inheritance precedes the concept of bequest. The first claim on the resources of any individual who dies is that of his “heirs” in the sense of those who carry on that individual’s local, social projects. One can extend this principle of heirship more or less broadly, to think of family resources, or tribal resources, even community wide resources, with correspondingly small or large senses of locality, and corresponding small or large groups of “heirs.”16 But for obvious reasons, in the past this was relative to the social projects that most mattered to or characterized various kinds of society. In militaristic feudal societies where loyalty to particular warlords was of the essence of political culture, familial inheritance made sense since loyalty is essentially a matter of close relationships of blood and friendship and protection, and it is truthful folk wisdom that the apple falls not far from the tree. This has not only to do with genetics, i.e. genetically heritable traits, but with upbringing, obviously. And it still resonates, of course, because, as the 16 Those who wish the estates of the dead to go to the state just cast the principle of inheritance at its broadest. Cosmopolitans would, presumably, cast the net even wider, arguing that property might succeed to, say, the United Nations. Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 204 Law & Ethics of Human Rights continuing meaningfulness of soap opera storylines tells us, the “familial project,” if I may call it that, still dominates many, many people’s own sense of self. There is a serious sense here in which “locality is destiny.” For his part, Adam Smith suggests17 that the rigidity and inconvenience of strict rules of inheritance were the main motivations for moving to a regime of bequest, and this is very plausible. But I suggest that there is a more interesting justificatory story to tell. Prior to the enlightenment, the “individualist” idea made little if any real sense, given the understanding people rightly had of the requirements of their social position and limitations upon their right to become “authors” of their own lives, at least in terms of the limited range of pursuits to instantiate values then available to them. Following, however, the relaxation of strict class and political boundaries of various kinds, and the opening of different avenues of life in which individuals could flourish, a strict, formulaic, regime of inheritance comes to make less and less sense. People (or at least the more privileged people among us) became more and more to be true authors of their lives, to be able to participate in social endeavors (the arts, science, various new trades and industries when economic activity moved away from being organized around the domestic, and so on) that provided the possibility of meaningful18 differentiation between the life of any individual and his immediate ancestors and descendants. The familial and perhaps tribal obligations of social projects remained, but there was room to engage in projects which were not pursued by one’s ancestors, and to which one’s descendants might not willingly succeed. Thus, it made sense to develop the idea of testamentary disposition, principally charitable bequests, to those social projects one had attached one’s life to, and which would be continued by others, but not necessarily one’s own children. To put this another way, other people besides one’s children might have a kind of “social project” claim upon one’s resources. But there are no feasible rules of succession that would make such claimants one’s heirs. To the extent there is a true life of the individual, then the projects a person could pursue are just that, individual, i.e. individuated by the particular history of the individual. Rules of inheritance are ill-fitting to the succession of resources which validly transmit one individual’s resources to the next generation in a way that properly represents that individual’s participation in human affairs. The only sensible solution is to grant the right to bequeath. But this right to bequeath does not have, ultimately, a different justification from the right of 17 SMITH, supra note 12. 18 Which is not to imply that differentiation is necessarily a good thing. There is nothing ipso facto wrong in following in one’s parents footsteps, or pursuing one of the traditional trades of one’s community. Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 205 inheritance. Some individuals or other will have a legitimate claim upon one’s resources upon one’s death, and testators normally feel this keenly, and write their wills accordingly. Freedom of testation allows these claims to be met better than do strict rules of succession. The last thing one should conclude from the institution of rules of testamentary disposition is that this institution reflects the idea that the owner qua hermit has no ties to others. Freedom of testamentary disposition no more embraces the idea of the atomized, self-interested hermit, than do the rules allowing a person to share and give away his property during his life. A regime of testamentary freedom does, of course, give rise to the possibility that some testators will abuse their freedom. It occasionally arises in the cases.19 But for reasons of practicality and out of respect for autonomy, the rule is that, exceptional cases to one side, we give testators the benefit of the doubt. That is, we expect them to apply their property responsibly so as to further the valuable human projects to which they devoted their resources during their lifetime. The introduction of a regime of bequest, supplanting a regime of inheritance, should be conceived then along the lines of the replacement of a perfect duty with an imperfect one. I am using the term “imperfect duty” in the thin sense of “unallocated duty,” viz a duty where there is no pre-determined individual or individuals to whom correlative rights can be, or have been, allocated.20 In an inheritance regime, heirs are allocated rights to the property of their predecessors, and predecessors have various duties to ensure that their “patrimony” is not wasted or dissipated so as to leave their heirs with nothing. In regimes of bequest, a testator has an imperfect, unenforceable duty, to devote their property properly to those persons or organizations that will carry forward their valuable projects, but like a duty of beneficence or charity, there are no correlative right holders – the testator’s gifts must be determined by the testator’s making appropriate choices, choices which only the testator can make. To summarize where we have got to. I have set out what I take to be the main luck-egalitarian/liberal objection to familial succession to property rights, and have suggested that when we widen our understanding of the power of title to property to take on board the social thesis and the Burkean claim that participation in human life transcends the lifetime of individuals, the shape of a justification for regimes of inheritance emerges. I have also argued that this sort of justification extends to regimes of bequest, properly understood as 19 See Brown v. Burdett (1882) 21 Ch D 667 where a testator instructed his executors to block up his house for 20 years. The court struck down the provision as “capricious.” 20 See ONORA O’NEILL, CONSTRUCTIONS OF REASON: EXPLORATIONS OF KANT’S PRACTICAL PHILOSOPHY 230–31 (1989). Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 206 Law & Ethics of Human Rights regimes which are variations of inheritance regimes, justified on the basis that considerations of autonomy and practicality require that we replace the perfect duties encumbering owners in inheritance regimes with imperfect duties to bequeath their property appropriately. Thus I have argued that both regimes of inheritance and regimes of bequest regard the power of an owner of property to be restricted, one might say duty-encumbered. In the case of inheritance, the owner has no power to bequeath, but their powers when alive are restricted so that they maintain the estate for their heirs. In the case of bequests, while there is no perfect duty to distribute their postmortem gifts in any particular way laid down by law, I have argued that the testator is subject to an imperfect duty, to choose appropriately to allocate their property rights suitably in view of the valuable projects they have led during their life. I now move on to consider political powers, and consider the way in which these might be conceived as being duty-encumbered. I shall argue that the sort of duty which encumbers political powers, similarly to the case of inheritance, suggests some room for the operation of the hereditary principle in this realm as well. The Duty to Govern and the “Competence Claim” for Hereditary Succession in the Political Realm In order to understand what force a hereditary principle might have in our political life, I shall explore two ideas. First, the idea that political power emanates primarily from duty, and secondly that the effective exercise of that political power is a matter of familiarity with the particular issues that political power is meant to address. I shall suggest that if the exercise of political power is conceived primarily as a matter of discharging a duty to govern, and if it is true that most political tasks are to varying degrees local, then one justifiable ground for succession to political office is familiarity with the local, and that because heredity is a particular, and particularly interesting, kind of local familiarity, there may be (some) legitimacy for inheritance as a ground of political succession. In legal and political theory much attention has been paid to the right to rule – that is the grounds of the state or other authority to issue directives to those subject to it – and to the (correlative) duty of those subjects to obey those directives. Less attention has been paid to the idea of a “duty to govern,”21 but 21 The following several pages are a modified version of JAMES E. PENNER & EMMANUEL MELISSARIS, MCCOUBREY & WHITE’S TEXTBOOK ON JURISPRUDENCE 115–17 (5th ed. 2012). Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 207 paying attention to it, is, I suggest, helpful for understanding whatever attraction the hereditary principle has in politics. In Natural Law and Natural Rights, John Finnis presents the idea of a duty to govern in this way:22 Authority (and thus the responsibility of governing) in a community is to be exercised by those who can in fact effectively settle co-ordination problems for that community. This principle is not the last word on the requirements of practical reasonableness in locating authority; but it is the first and most fundamental. According to Finnis, in any sufficiently large and complex community, there will be a need for rules providing for the co-operation and co-ordination of individuals for the community to act as a community, so that its members survive and flourish, have a reasonable chance at realizing the “basic goods” of human life; but history shows us that these rules are unlikely to arise through custom; rather, they are typically imposed by an authority that manages to get the bulk of the population to take its directives to be binding. Because those in a position to fulfil the moral obligations of practical reasonableness have those obligations,23 those who are capable of taking charge and instituting a system of rules for co-operation and the co-ordination of behavior have both the right, but more importantly, the duty, to govern. Leslie Green remarks,24 It is important to grasp how radical Finnis’s version of this idea is. Others have suggested that effectiveness is a necessary condition for justified political authority. If authority’s role is to secure some valued end, be it justice or finality in social ordering, then it is bound to count against a putative authority that it lacks any capacity to do so.... What is striking is not only that Finnis regards effectiveness as in such ways necessary for justified authority but that he also regards it as defeasibly sufficient: “the sheer fact of effectiveness is presumptively (not indefeasibly) decisive.” Indeed, a casual reader may be shocked by Finnis’s repeated insistence that raw power plays a pivotal role in both the right to rule and the duty to govern. It sounds uncomfortably close to the claim that might makes right – and that is not the sort of thing we expect to hear from a natural lawyer. Two things immediately to notice: in the first place, might gives one the presumptive, i.e. defeasible, right and duty to govern, but as this formulation indicates, with the right comes the duty to comply with the dictates of practical 22 JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 246 (1980) (italics in original). 23 I do think that this idea has folk wisdom resonance – think of the “Spiderman principle,” “With great power comes great responsibility.” 24 Leslie Green, The Duty to Govern, 13 LEG. THEORY 165, 169 (2007) quoting FINNIS, supra note 22, at 247 (italics in original). Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 208 Law & Ethics of Human Rights reasonableness,25 one principle of which is that that no choice can be made which directly contravenes any “basic good.” Thus might does not entitle one to pursue evil; it is not a right to tyrannize or to exploit. In the second place, the right is a right to govern, which entails acting in an effective way over time; it is one thing to take authority because one can exercise effective force so as to institute a regime of rules; it is quite another to maintain that authority on a proper footing. Governmental authorities that make a mess of governing will lose that authority. Importantly for our purposes here, that means that there must be put in place effective rules for the transmission of authority and succession to offices. There are two observations Green makes which are particularly relevant, I hope to show, for how these rules may be regarded as genuinely effective. Green argues that Finnis’s theory of the right and duty to govern is a kind of necessity argument:26 According to Finnis, a community of any size and complexity needs law, and thus lawmakers and law appliers. But if this is so, it would seem to place a restriction upon the duty and the right to govern. While it may be true that any community of sufficient size and complexity needs certain framework laws, such as rules that allow the society to deal with cases of serious crime, to establish basic human rights, to set up a workable regime of property rights and economic transactions, modern states clearly do not limit themselves to making rules of this kind. And if that is so, then the duty to govern and the right to govern may not have the same scope: the right to govern would appear to be greater. That is, we appear to accept that once having established authority by attending to the necessary framework rules, a state is in some way entitled, i. e. has the right, to do more, whether in terms of legislation or by way of raising funds through taxation and spending the money to provide goods of various kinds to its subjects. Green’s second observation might actually amount to an objection to the particulars of Finnis’s theory. Finnis seems to assume that it is possible to identify the obvious areas where co-operation and the co-ordination of individuals is required, and the duty of the authority is to select from various regimes of rules to fill that need. But in consideration of this Green says the following: Common knowledge of our circumstances cannot simply be assumed. One of the hardest tasks in law and politics is to get people to understand the need for cooperation, especially when it is very complex or involves people unlike or remote from themselves. Two sorts of error are common. First, there may be a need for cooperation that is not adequately felt. Managing climate change poses a coordination problem in Finnis’s sense if anything does, 25 FINNIS, supra note 22, at 86–89. 26 Green, supra note 24, at 173. Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 209 and maintaining the planet as a viable habitat for Homo sapiens is as clear an example of a humanly necessary task as we have. Any nation or group that could come close to providing an effective solution, or even steps toward an effective procedure leading to a solution, would have a powerful obligation to do so. But some people, owing to ignorance, self-deception, or wilful blindness, do not see that this is a task calling for cooperation of an unprecedented kind. The second type of error involves deeply felt coordinative ‘needs’ that are in fact illusory. In some societies there is a felt need to organise the ritual cutting or amputation of parts of children’s genitals without anything that could possibly count as their consent or that would be a morally adequate substitute for it. It would be much better if that ‘need’ were not felt (which is not to say that others are thereby authorised to eliminate it).27 To summarize: (1) political authorities appear to have the right to do more than merely set out and enforce rules that are necessary for the preservation of a human community, and (2), one of the tasks of a political authority is, odd though it may sound, persuasive: it is to make its subjects come to a better understanding of the genuine problems that it, as a community, faces. The second point, I think, ramifies in two important ways. Negatively, to the extent that the authority persuades its subjects to accept non-problems for “resolution” by its directives (and one can think, endlessly, unfortunately, of many such examples, perhaps most typically those pursued by fascist, totalitarian, regimes), or fails to persuade them of, or actively discourages them from realizing, the existence of genuine problems which call for the authority’s attention, then just to that extent does the authority fail to be legitimate. Positively, it places, I think, a second “capability” test on the putative authority: not only does “might make right” in the sense discussed above, but insight and discernment, as well as the ability to communicate effectively with its subjects, is a particular aspect of that “might.” Green more than hints at this second feature in the following passage: Political authority, including legal authority, is in fact exercised on many other bases [besides the ability to solve genuine co-ordination problems], including self-interest, charisma, superstition, and so on. Those who make themselves “masters of society” may do so in order to enrich themselves and their friends and not even try to settle any sort of problems. But in the realm of political authority and obligation there is a connection between the actual and the ideal: self-interest, charisma, and so on may stand in a causal relation to the capacity to settle problems effectively. The fact that someone is a charismatic leader, for example, Churchill during the Battle of Britain, may contribute to his effectiveness in settling problems of strategy by sustaining morale and inspiring obedience during wartime. An authority is not deficient qua authority if its effectiveness rests on such bases, and that applies even to superstitions about the divine rights of kings, the virtues of 27 Green, supra note 24, at 177 (italics in original). Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 210 Law & Ethics of Human Rights aristocrats, and so on. (There is at least that much truth in Hume’s attack on the Whig contractarians, though there may be other objections to authority exercised on such grounds.) The claim is that authority should be exercised when there is a certain kind of problem to be solved, and that it should be exercised by someone who has the effective capacity to solve it. At this point, normative power depends on actual social power.28 While Green makes a sensible, and I think, correct claim in this passage, I do not think it does adequate justice to the issue. In order to do that one must, I think, distinguish between the moral and the ethical in politics. By doing so, we can make better sense not only of this second point concerning the nature of political “might” or “social power,” but also of the idea summarized in (1) above, the idea that states normally do more than institute rules “necessary” for the very continuing existence of a community. Let me make the following distinction between the “moral” and the “ethical,” which I make no broader claim for than that I think it helps illuminate the issues under discussion. Following Green, let us say that the “moral” is that which concerns those norms that ensure that a society deals with cases of serious crime, respects basic human rights, and establishes a workable regime of property rights and economic transactions. The “ethical,” on the other hand, concerns those norms which reflect any community’s views about the “right way to live” which go beyond these urgent, moral, normative requirements. This is, I accept, very loose, but I hope the following two examples help give the distinction some purchase. Consider first a society’s rules regarding punishment of crime. Assume for the sake of argument that the retributivist perspective on punishment is correct, and that the only morally acceptable ground for imposing hard treatment upon a criminal offender is that they deserve it, and furthermore that only by undergoing that hard treatment is an offender able to assuage his guilt and so may thereafter rejoin society as a full citizen again, and that, finally, in consequence, a society is morally obliged to punish offenders so that this resolution is achieved.29 Even accepting this, different societies may institute different punishments for an identical crime, and my suggestion is that this choice is, more often than we are willing to acknowledge, ethical, and not determined by moral argument about which punishment best fits a crime. Consider the decline in the 28 Green, supra note 24, at 168–69. 29 This is the sense in which a criminal offender has a right to, or is entitled to, punishment, rather than to any other sort of treatment; only punishment respects both his dignity as an individual by regarding his crime as a stain on his character which in principle can be removed, and his membership of the human community from which his crime temporarily, not permanently, removes him (except, perhaps, in the case of the most heinous crimes). Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 211 Western world of corporal punishment, in favor of imprisonment. Now there may be all sorts of good reasons for this – for example that the intentional infliction of pain is in the same neighborhood as torture, and that it smacks (to us) of barbarism – but one might equally question what willingness to cage fellow citizens suggests about our attitude to crime and criminal offenders, and not very much like the answer. The point that I want to make here is that it is justifiable to abjure a particular mode of hard treatment such as corporal punishment, along the lines of “that’s just not something we do,” without seeking to establish at some level of moral necessity that corporal punishment cannot be justified. Similarly, as a form of hard treatment I don’t suppose that imprisoning people is ruled out as a matter of its being necessarily immoral as a punishment, but one might well think it unethical: Someone might very reasonably wish to live in a community which said to itself that caging people is “just not the sort of thing we do.” The suggestion I am making is that, even in cases when we institute necessary norms for dealing with serious crimes, respecting human rights, and so on, there is almost certainly going to be a blend of both moral and ethical considerations lying behind the actual, specific, rules an authority legislates. The second example I want to consider is that of state provision of education. Instituting universal education and raising taxes to do so arguably lies outside the basic rules dealing with crime, respect for human rights, and so on. So it would seem to lie outside the scope of a duty to govern in so far as the duty extends only to the institution of rules which we are morally required to institute. But this, I want to suggest, bespeaks an impoverished understanding of a community, the protection and preservation of which is the basic ground for the duty to govern. A genuine community does more than provide rules to deal with serious crime, respect human rights, and so on. A community is also, I would propose for the sake of the argument here, a cultural entity, which reflects various attitudes about how people should live together, what manners they have, what they regard to be of aesthetic value, and so on. If that is right, the protection and preservation of a community as the very community it is will to some extent be a matter of ensuring the continuing vitality of the ways of life which makes it the community that it is. From this perspective, the thin gruel of basic human rights, property and contract, do not a community make. Against this backdrop it is mistaken to regard a state’s support for universal education, paid for by taxes it imposes, as an ethical “extra,” or merely an economic right which, in the right socio-economic context, should be regarded as a “human right.” Rather it reflects the duty of the governors of that community to preserve and protect it as an educated community, or a community which values education. And part of that authority’s persuasive or social power which gives it the Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 212 Law & Ethics of Human Rights duty to govern would be to communicate how the value of education is to be properly understood as a matter of that community’s history and current vitality. This is not, I hasten to add, to say that a community’s ethical life should not or cannot change. Questions about whether that should or can happen is largely what politics is about. The claim is that the authority of the state, and the duty to govern, reaches into the realm of the ethical, and that the ethical is very much about the local or particular character of the community. We are now, I think, in a position to begin to appreciate the role that a principle of heredity might play in political succession. Let me first clear the decks of one very important consideration which obviously has a role to play in questions of devising rules for political succession, for example succession to a political office. One of the things the rules should strive to inculcate is the nature of a political office as a burden, of a duty to discharge, rather than as an opportunity to wield power in the sense of imposing upon others rules which favor the interests of oneself or one’s friends or any particular faction of the community which one is charged with governing. As Burke was at pains to point out, there might well be reasons for organizing the constituencies for members of the House of Commons upon a regional basis, but those reasons are not that the member from Bristol, say, should think themselves to be concerned to represent the interests or prejudices of the electors of Bristol, whatever they might be.30 Even worse is the anti-ideal underlying a divide-the-spoils, “pork barrel,” conception of politics. To the extent that such attitudes hold any general sway among politicians or their subjects, to that extent is the polity degraded. And to the extent that the rules governing election or any other mode of providing for succession to political office help ensure that only those with the right attitude to the task of governing, that it is a burden to be discharged rather than a license to impose, come to hold office, so much the better. To put this another way which relates this duty to Smith’s conception of original family property, we want rules of access to political offices which inculcate the view that a governor is akin to the head-of-household title-holder whose role is that of steward of a family’s resources, resources that are essentially attached to a project which transcends generations. What I want to concentrate upon is a second dimension that makes a person a good governor, that of competence for the task at hand, in particular to the extent that fulfilling a duty to govern is a matter of engagement with the ethical life of the community, as opposed to an engagement only with basic, universal, moral norms. 30 Edmund Burke, Speech to the Electors of Bristol, (Nov. 3, 1774), available at http://www.econlib.org/library/LFBooks/Burke/brkSWv4c1.html paras. 4.1.20–4.1.26. Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 213 In non-democratic polities, which I take to mean polities in which state power is held by a ruling class, or even a ruling family, polities which I am of course not endorsing, there seems some obvious sense in a hereditary rule of succession to political office on the grounds of mere competence to govern. By hereditary I do not mean genetic in the biological sense. What I mean is that in such a society having the social power to rule, and the ability to be representative of the “ethical,” i.e. the cultural “spirit” or “outlook” of such a community, and having a basic familiarity with the way political power is exercised, arguably falls only to those who have been raised as members of the ruling ranks. Both symbolically, in terms of their exalted status, and operationally, through inculcation in the ways of power by their elders, these successors seem, and however unfortunately, probably are, most likely to be able to discharge the duty of rule in their communities in keeping with the ethical or cultural character that they have. I should also state that even if such a polity is organized in terms of a monarchy or supreme leader that does not mean that this ruler’s actual offspring are entitled to inherit power. One can have an elected monarchy; the idea is that the heredity is class heredity, and might well allow the adoption of new members in various ways, as for example when a landed aristocracy starts to include rich industrialists among its ranks as economic power shifts. The ruling class might be wide or narrow, so narrow as to be limited to one family, strictly genetically construed. Again, by pointing this out I do not intend in any way to affirm as some kind of ideal either this form of polity or any particular ethical or cultural character that the society it governs has. Neither, by the way, does this observation suggest that such societies are particularly stable, or are incapable of changing their ethical character over time, or that they are necessarily less observant of all basic human rights (though of course if the right to participate in institutional politics is a basic human right then they clearly do not observe that one). Now let us now turn to more or less democratic societies, countries like the UK or Canada or France. Is there any role here for a hereditary principle in politics? Well, it seems pretty clear that most people in these societies would abjure a hereditary right to succession to a political office, in so far at least as that would undermine the more or less democratic process itself. But what would they say about the rights and duties of citizens? For many more or less democratic states, the vast bulk of their citizens legally acquire their status as citizens in virtue of being the children of citizens.31 31 The United States is distinctive in according citizenship to any person born in the United States (14th Amendment to the US Constitution, Section 1), though children of U.S. citizens born outside the United States also acquire citizenship in most cases where the parents themselves normally reside in the United States. Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 214 Law & Ethics of Human Rights There is clearly a hereditary principle at work here, and though it is not the elite ruling class presumptive right to rule just discussed, it does, I would argue, share some of its features. One feature I think it shares is the matter of competence as a grounding for these rights to participate in the rule of the state. This is, I think, borne out even when we consider non-hereditary ways of acquiring citizenship, through naturalization. Applicants for UK citizenship have to pass a laughable test examining their familiarity, among other things, with the political system and totems of UK culture. Though in fact the test is more than something of a joke, I take it the motivation behind it is reasonable enough: we do not want fellow electors or prospective governors who lack the familiarity with the ethical dimensions of British political life and the wider British culture, though insisting on a knowledge of the date of St. David’s day32 may seem an odd way of determining that. Any individual from anywhere might be a perfectly good elector or office-holder if all that involved was ensuring that a society observed the morally necessary rules about serious crimes, property and contract and so on, but if what I have said about the “ethical” dimension of political life has any relevance, that alone would not qualify them for the role of elector and representative if the community is to continue to thrive as the community it is. There is an obvious analogy with the move from inheritance to bequest in the arena of family property to the expansion of the means of acquiring citizenship, e.g. through naturalization. As people become more mobile, a state may choose to make citizens of people who are not the descendants of other citizens. Thus a state may organize its rules of citizenship as a matter of “bequest,” exercising choice in respect of acquisition to citizenship. Luck egalitarians have argued that hereditary citizenship in economically advanced countries, like property inheritance more generally, is a distributive injustice, on the basis of which such citizens should be taxed.33 Is this sort of argument rebutted by the “competence” argument for inherited citizenship? Perhaps in a trade-off between competence and social distributive justice, the latter might come out on top. But I think there is a different way of thinking about familiarity, rather than simply a source of political competence, that bolsters the intuition that that the hereditary principle still has some justificatory force, both in politics and in terms of succession to property, and this will return us to the justification for the inheritance of property. 32 March 1st is the day; it was one of the things I was required to know to pass the required test for naturalization in the UK. 33 See Ayelet Shachar & Ran Hirschl, Citizenship as Inherited Property, 35 POL. THEORY 253, 277–83 (2007). Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 215 A Richer Notion of Familiarity Underlying the Hereditary Principle The idea that there is something essentially right in the passing of status and property rights from one generation to the next on the basis of inheritance has, of course, its most famous proponent in Edmund Burke. Burke argued that the only sound justification of our civil and political rights was the fact that they were part of our birthright, an inheritance from our ancestors. Burke emphasized that this was, in his terms, the natural way of thinking about this,34 by which I understand him to have meant that our ties to others are first and foremost those ties which are related to our nature as creatures each of whom is particularly related to our parents and grandparents, to our children and grandchildren. To be human, and to participate in human life, our life with others, just is to have these connections. In one sense, this is no more than to say that human lives have an unshiftable historical aspect, and all history is local. The significance of our lives depends intrinsically on the circumstances into which we are born, and this essentially turns on the decisions that our predecessors have made, the most obvious one being to bring us into the world in the first place. To say this, of course, is not to say that we could not arrange things otherwise, say by moving to a Brave New World in which reproduction was socially industrialized, or by allotting newborns by lottery to parents who chose to conceive on a world-wide basis.35 Or, we could have a lottery for citizenship in various countries, which all persons turning eighteen would be required to enter and to accept the result. And I do not deny that these suggestions are thought-provoking. Consider the last, the lottery for citizenship. This might have salutary effects on both the parents and children. Not knowing where their child might become a citizen, parents in economically advanced countries who wished the best for their offspring would no doubt do more than they do now to ensure that the living conditions in all countries around the world were minimally acceptable.36 And their children would, by dint of the lottery, almost certainly take a more cosmopolitan outlook, not knowing where they might wind up. They might travel more, or learn more languages, or simply feel more of a bond with humanity as a whole and be more willing to act on that felt bond. Ultimately, however, I think the attractions of this sort of thought experiment are, arguably at least, fanciful. They implicitly deny the values of locality and familiarity which, while it may seem somewhat remote to many 34 BURKE, supra note 15, at 33–34. 35 Alon Harel suggested this idea to me. 36 On the other hand, the prospects of the lottery might reduce their interest in reproducing. Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM 216 Law & Ethics of Human Rights people in the more or less socio-economically elite classes in economically advanced countries, who with some plausibility may regard themselves as citizens of the world, remain, I conjecture, a very strong influence on many of our fellow world citizens. Consider a final thought experiment, which goes right to the heart of this sort of familiarity, in particular the familiarity with one’s own offspring. There is an idea that the hereditary principle is essentially tribal, or racist, or in some other way unacceptably “local” – it is the locality of the genes, and surely any “genetic” legitimacy is something we should do our utmost to eradicate. This is a very sound concern, but I don’t think the objection, at least as so framed, is ultimately sound. It is not necessarily the case that regarding familiarity as a lifeenhancing value, at least with respect to our valuation of some things, counts as a deficiency in our relating to those values, any more than it would be the case that familiarity is always a feature of the appreciation of things that is in fact valuable – the claim is not that familiarity is an unalloyed value in all circumstances. But, so this line of though goes, it is not wrong to want one’s successors to be like one, and not only like one in the sense that they instantiate more or less universal virtues or values. Let us suppose you funded research, and a geneticist approached you with the following research proposal. Having found the relevant genes, the researcher wishes to develop a technique by which all parents could make their child “racially neutral,” having no discernible bodily, facial, or skin-tone characteristics which suggested one race or another while at the same time allowing the expression of all the other parental genes. (The actual genetics and physiology is vastly more complicated than this, by a long way, and so the example is truly fanciful.) The point of doing so, stated in the application, would be to allow states with significant problems of racial prejudice to encourage or require parents to produce such “neutrals,” with the view of obviating racism in subsequent generations. Would you fund that proposal? I would not. However laudable the goal, it would seem to me that encouraging or requiring parents to suppress the expression of their own racial identity in that of their children would be an outlandish thing to do. And the reason I think it outlandish, in part, would be that it would seek to deny such parents a familiarity with their children which it is not wrong to value.37 To the extent this familiarity is something to be prized, even somewhat, as part of what makes our lives go well, that it makes us, along one dimension, “at home in the world,” I do not think it can be entirely gainsaid, or at least those are my intuitions. And such a familiarity extends beyond the locality of one’s family, race, language and so on, to our being 37 One might object to the proposal for other reasons, of course, such as the value of “diversity,” whatever that is, but I am not, here anyway, relying on such other reasons. Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM Intergenerational Justice and the “Hereditary Principle” 217 at home with our community, including of course its electors and representatives. It also bolsters intuitive support for the inclusion of a regime of inheritance in property law: to have one’s resources descend, as a matter of birthright from generation to generation to those who are genuinely familiar to us, is just that way of ensuring that our “ethical” way in the world, assuming it has served us well, is not lost on subsequent generations. Of course, of course, engaging in all sorts of other ethical projects, with narrow or wider ambits of participation, also make legitimate claim on our resources under this picture, which is why, as I mentioned, it seems intuitively justifiable to institute a regime of bequest. Conclusion I am mindful, of course, that the various considerations I have raised in support of the hereditary principle, both in politics and in relation to succession to property, are not knock-down arguments which defeat the luck egalitarian objections I canvassed at the outset. My aim here has been much less ambitious, i.e. to try to make better sense of the common intuition that something might be said in favor of the regimes of inheritance and bequest which are essentially universal in wealthy developed nations. Furthermore, the argument from familiarity in the last section raises a challenge to those liberal theorists who center the justification of their views on the value of individual autonomy.38 If familiarity is a value in something of the way described above, then the realization of some values would be impeded if scope for familiarity was limited or suppressed. To the extent then that regimes of inheritance or bequest provide scope for the realization of values the proper or full realization of which depends on the value of familiarity, then these regimes count as autonomy-enhancing. Acknowledgments: I would like to thank participants at the Intergenerational Justice Workshop in Ramat Gan on January 7 and 8, 2013, hosted by Shelly Kreiczer-Levy and Pamela Laufer-Ukeles, for their incisive comments on an earlier draft of this paper, in particular Avi Bell for his critical introduction of the paper. I am also very grateful to Alon Harel and two anonymous referees who read the paper and gave detailed criticisms. Websites were last visited July 22, 2104. 38 For an instructive discussion of the tensions among the various players, testator, legatees and so on, from a liberal perspective in which individuals are conceived to be autonomous, more or less self-interested actors, see Shelly Kreiczer Levy, The Riddle of Inheritance, Social Science Research Network Papers, (Feb. 3, 2011), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1789211. Brought to you by | University of Calgary Authenticated Download Date | 5/27/15 12:23 PM