The Social Origins of Property

Abstract

It was easier to make a revolution than to write 600 to 800 laws to create a market economy.Jiri Dienstbier, Foreign Minister of Czechoslovakia (1990)[I]t would be as absurd to argue that the distribution of property must never be modified by law as it would be to argue that the distribution of political power must never bechanged.Morris Cohen (1927)The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use. When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves “to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole.” To determine when a regulation amounts to a “taking” of property requiring compensation, the Court has rightly stated that the ultimate question is whether the burden of regulation has been unfairly placed on a small class of individuals rather than the public at large. To answer this question, the Court has identified a variety of factors to consider, including the character of the governmental action, (whether the regulation effects a permanent physical invasion, destroys a core property right, or is intended to prevent public harm), whether the regulation interferes with reasonable investment-backed expectations, and the extent of the diminution in value of the property (particularly whether the regulation deprives the owner of any economically viable use of the property).

Idea, Sovereignty, Eco-colonialism and the Future

“…To combat using one's private property rather than an externality. This retains consistency with the concept of private property outlined in this essay and might draw upon the work of Nedelsky (1993); Kennedy (1993);Singer (1982Singer ( , 1988Singer ( , 1992Singer ( , 2000aSinger ( , 2000bSinger ( , 2006Singer ( , 2010aSinger ( , 2010b; Singer and Beermann (1993); Rose (1994); Baker (1986);Underkuffler (1990Underkuffler ( ), (2003and Purdy (2008and Purdy ( , 2009and Purdy ( , 2010. With the notable exception of Purdy (2010), the difficulty with each of these theorists is that, while their work could form the background to and foundation of a reconceptualising of private property to account for climate change, each is limited to the domestic legal sphere, and fails to address the global spatial-physical dimensions of the climate-change relationship.…”

Opening Up Ownership: Community Belonging, Belongings, and the Productive Life of Property

“…Although a stickiness and tenacity to ownership claims is apparent, particularly in relation to individual possessions, which children acquire and hold unequally, 12 property relations, for the most part, are not structured according to liberal, territorial norms of a protected sphere of indefinite and undefined activity in which the owner is king and few uses prohibited (Penner 1997, 72; see also Chesterman 1994, 15). Rather, legal relations are fragmented (see also Alexander 1988; Singer and Beerman 1993), and delimited by substantial exclusions and prohibitions. In part, this follows from the hollowing out of property rights just described.…”

‘Dehumanized housing’ and the ideology of property as a social function

“…Only very few professionals in the field of land use reflect upon the ideological underpinnings – or, as Blackstone (1766) called it, ‘the original and foundation’ – of property. Notable exceptions are scarce (Alexander, 1982; Robertson, 1995; Singer, 2000, 2014; Singer and Beermann, 1993). Vast parts of the scholarship on property help conceal the ideological kernel inside property’s formal shell.…”

“…Nevertheless, the Western property paradigm has not been completely blind to the correlation of rights and duties. The notion of property as a duty-related right, as a source of social obligations, is well established in some jurisdictions and among property scholars (Alexander, 2009; Ankersen and Ruppert, 2006; Davy, 2012; Mirow, 2010; Ondetti, 2016; Singer, 2000; Singer and Beermann, 1993; van der Walt, 1999, 2005, 2009; van der Walt and Viljoen, 2015). The social obligations approach apparently aligns Duguit with a liberal worldview:The so-called social function of property … asserts that the right of private ownership includes an obligation to use land in ways that benefit society as a whole.…”