Towards an understanding of public property (original) (raw)

The idea of public property (Ethics, 2019)

Ethics, 2019

Political theory lacks a compelling account of public property. Addressing this gap, I present a " deep public ownership " model, according to which the body politic ultimately owns all the resources within its jurisdiction. I argue that this model is compatible with liberal intuitions regarding private property. I then contend that the model expands the scope of government's duty to uphold the equality of all citizens, by challenging private property constraints on anti-discriminatory government policies. I anticipate the worry that the model supports excessive government intrusion into private affairs, and close by discussing abuse of public property by elected leaders.

The President Stole Your Land: Public Lands and the Settler Commons

Western American Literature, 2019

In the United States what constitutes "public lands" has never been stable. Notions of the public and their commons were a fickle matter of political contest and power relations before the beginning of what is currently called America. This article takes two examples of contemporary debates over public lands as paradigmatic case studies for the ways apocalyptic appeals populate and naturalize the “settler commons” across the spectrum of US politics (Fortier). Through the comparison, it finds a convergence in what are often seen as irreconcilable differences between leftist environmentalisms and libertarian land-use logics. Apocalyptic depictions of the coming or in-progress collapse of the commons naturalize a space that both white environmentalists and white nationalists share. It then turns to apocalyptic imaginations of public space beyond the settler commons, concluding in a tentative example of the commons as indeed not static, not settled, but as an invitation to ongoing practice-based relationships of responsibility that require some of us--like me--to learn in public. Public lands, I find, are the spaces in which we are held accountable to very particular publics. In the patois of pithy prose, public lands are a verb.

The Public Nature of Private Property

An Interdisciplinary, Searchable, and Linkable Resource, 2015

American legal academics describe private property as a set of private rights. However, liberal ideas of private control poorly describe legal practices, and thus the bundle of rights is a misleading metaphor for private property. Indeed, social theorists have long understood that property is not the ownership of a thing or a set of individual rights, but a set of social agreements about what ownership entails. In the late twentieth and early twenty-first century, constituents have expected governments to protect the value in their properties, not just their control over the resources. Property rules involve government intimately not only in creating value but also in determining who deserves which valuable resources. THE EMERGENCE AND EXPANSION OF PRIVATE PROPERTY AS A LIBERAL IDEAL When American legal academics describe private property, they present a liberal notion of property as a set of private rights. One of the first things professors of law teach students in property classes is that legally, property is not an object one owns. Rather, it is a bundle of rights that can be split among many individuals or entities. These include rights to use, exclude others from using, and transfer property. When government protects private property in this way, it protects individual control over property; those with property rights can do what they wish, as long as they do not interfere with others' similar interests. By this definition, government seems no more than an arbiter of agreements and conflicts among private parties, and thus the conception of property as a set of rights comports well with a liberal or libertarian notion of a restrained government. [See Radin (1993) for discussion of how theories of government ally with positions on property.] Although concerns for the public good undergird political theorists and economists' celebratory writing about private property, many of these scholars also describe the essential tenet of private property to be protection of private entities' control over resources. Classical and contemporary theorists Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Kosslyn.

Extinguishing Landscape, Creating Property: Property and Spatial Injustice

Springer eBooks, 2023

This chapter reflects on the ways in which loss of place or landscape destruction can be considered intrinsic to property's formulation in the law. In summarising the relationship between the common law and land by examining property's impact on various geographic locations, it becomes clear that private property has benefitted from undemocratic and environmentally harmful activities that have concerning implications for sustainable land use. Failure to consider enduring people-place relations developed in response to local limits means that property operates without regard for the physical environment, including its cultural dimensions, and this has implications for human rights and ecological resilience. The chapter closes by identifying this transition from landscape to property as spatial injustice that is upheld by the law.

The Public Dimension of Private Property

King's Law Journal, 2013

IntroductIon one of the most challenging questions in property theory is what makes private property private. 1 Is private property really private-that is, is it conceptually distinct from any public regulatory scheme? or is private property merely a form of regulation, one that happens to delegate decision-making power to individuals (and corporations) in the service of the public good and to the extent of such service? John Locke famously opted for the former alternative and even gave it a sharper edge, arguing that private property is in fact prior to law, indeed prior to any social contract on which the state and the law are founded. Property, in this view, cannot be understood as a product of the state's regulatory power because it naturally prescribes and limits the scope of legitimate regulation. 2 Many years later, Bruce Ackerman presented a vivid example of the latter alternative, arguing that property law parcels out rights to use things 'amongst a host of competing resource users' , where the 'real question' property's 'Scientific Policymaker' faces is always 'in whose bundle one or another right may best be put' given a certain comprehensive view of the just society. 3 Locke's theory, insofar as it is aimed to establish the legitimacy of pre-political robust private property rights, is fraught with difficulties. 4 notable among them are the * Professor of Law, Buchmann Faculty of Law, tel Aviv university, Israel. thanks to Avihay dorfman, Meital Gilboa, Guy Goldstein and an anonymous reviewer at the King's Law Journal, as well as to participants at King's college London's Symposium on the Interface of Private and Public Law concepts of Property and at the Private Law theory Workshop of tel-Aviv university Faculty of Law for their comments. 1 For the purposes of this article, I adopt Jeremy Waldron's observation that rules of private property revolve 'around the idea that contested resources are to be regarded as separate objects each assigned to the decisional authority of some particular individual (or family or firm)'. J Waldron, 'Property Law' in dennis Patterson (ed),

Uncommon Ground: The 'Poverty of History' in Common Property Discourse

Development and Change, 2004

It would not be a great exaggeration to say that scholars of environmental conservation and conflict have re-discovered the institutional foundations of social and economic life. At the heart of this ‘renaissance’ is the belief that property and property relations have a strong bearing on how people use, manage and abuse natural resource systems, and that institutional arrangements based on the creation and management of common property can have positive impacts on resource use and conservation. Two bodies of thought compete for a voice in this literature. One, which aims to resolve Hardin's tragedy of the commons, is primarily concerned with the problem of encouraging collective action to conserve resources that are both depletable and unregulated. A second, influenced by notions of moral economy and entitlement, deals with the problem of creating and sustaining resource access for poor and vulnerable groups in society. This article argues that the literature on common property has become divided between a body of scholarship that uses deductive models of individual decision-making and rational choice to explain the ways in which different types of property rights arrangements emerge and change over time, and one whose questions, aims and methods are more modest, and historically-specific. It then aims to understand this evolution by situating the mainstream common property discourse in the wider intellectual trend of positivism, methodological individualism and formal modelling that has come to dominate social science in the United States. In so doing, it attempts to unravel the political and ideological foundations of what has come to be a dominant mode of understanding environmental problems, and solutions to these problems.

"By Force of Expectation: Colonization, Public Lands, and the Property Relation"

UCLA Law Review Discourse

Not-guilty verdicts, mistrials, and impunity for the Bundy family and many of their supporters in the armed confrontations over public land use in Nevada and Oregon. Expanded access for private oil, gas, mining, and logging industries and the downsizing of national monuments such as Bears Ears lead by Secretary of the Interior Ryan Zinke. A number of highly contentious debates and sensationalized events have again focused attention on land held in the public domain by the United States. This essay argues that federal land policy as a form of colonial administration has been constitutive for the logic of expectation as property in what is now the United States. From the state land cessions negotiated on behalf of the Articles of Confederation to the preemption acts (1830–1841) to the homestead acts (1862–1916) to present-day demands for land transfer, the acquisition and disposal of the so-called public domain have been central to westward colonization, the consolidation of the nation-state, and the promise of land ownership as the ostensible foundation of individual liberty. These dynamics are evident in contemporary conflicts over public lands and arguments for the transfer of public lands to either state or private ownership. Approaching the Bundy occupations as flashpoints that illuminate competing interpretations and claims to land within the history of westward colonization, this essay seeks to demonstrate the ways in which expectation emerges from particular economies of dispossession of indigenous peoples that have historically worked through and across the division of public and private property.

Property ownership, resource use and the 'gift of nature'

Environment and Planning D: Society and Space, 2013

Through a theoretical and empirical consideration of gift exchange, this paper argues that those with legal interests in land have constructed property relations around a claim of reciprocity with nature. This has been used to legitimate the ways in which they have deployed their property power to exclude others, thus seeking to retain their dominion over both humans and non-humans. In so doing, however, such interests have failed to understand the dynamic of gift relationships, with their inherent inculcation of subject and other, to the point where the exercise of power becomes contingent on the continued hegemony of property relations. Using the politics of recreational access to inland waters in England and Wales, the paper shows that power – over both humans and non-humans – is temporary and conditional in ways that are not fully theorised in most contemporary debates about property rights and their deployment on non-human subjects.