My own view of the question, “can private law be “rescued” is that we cannot achieve sustainability without a transformation in private law and in the deeply embedded values that it both reflects and sustains. In particular, the foundational nature of private property means that its transformation is essential, even as it seems impossible.
The research plans I outline here are implications of expanding my relational approach to law (Law’s Relations) to the more-than human and a return to my earlier interest in property (Private Property and the Limits of American Constitutionalism).
Some theories of ownership explain the rules about how (and sometimes why) some people have rights of control, exclusion, and transfer of things. Other theories are about the relations among people with respect to things. Either way the sharp distinction between people and things is central. Once we pay attention to the complex ways the more-than-human world is part of the relational network that is constitutive of human beings, the sharp line between people and things blurs and probably dissolves. That means we need to recast the stories we tell about property.
This blog has been placed in the category of Unsustainable Governance. I am interested in the ecological unsustainability of the still wide-spread failure to failure to build in the more-than-human as part of the routine framework for legal and political analysis. In addition, there is the unsustainability of current legal frameworks of property from the perspective of democratic equality: the right of all to participate in shaping the norms, institutions, practices, and law that govern their lives.
With both of those broad frameworks in mind I want to point to two quite different areas of property law that need to be changed for governance that is sustainable in these terms.
My own context is the common law regime of Canada, but I think the big issues will apply in the context of European private law.
1.Property in land. Environmental protection is almost always handled through legislation and regulation that set limits to what people can do with their land (and the farms and factories on it). This generates a wide-spread view that environmental protection is an incursion on the rights of landowners. This is so even if many people think it is a justified incursion. Societies need to change this basic framework for thinking about property and its connection to the mutual responsibility of all to care for the land, including the health and safety of the forms of life on that land (present and future). There is a tacit presumption of a priority of property, and a givenness of the rights associated with it that shapes the dominant understanding, even if exceptions can be made. The need for justification lies with those who want to ensure health and safety of life forms. This is, of course, one of the ways private property works: it defines what is a given, what bears the burden of justification. (The distribution of wealth generated by “the market” is another ongoing example of the burden of justification for RE-distribution—via taxation and social supports– of the given, natural outcomes of “the market.”)
The kind of change I am interested involves a legal and cultural redefinition of the meaning of property in land to include an obligation to care to the land. Of course, there is a lot detail entailed in defining that obligation, but what I think matters is that the obligation becomes part of, rather than a limit to, the meaning of ownership. I do not mean to minimize the challenge of accomplishing such a change, but we need to recognize that both the legal meanings of ownership (of all kinds) and the cultural meaning of land have changed significantly even over the past few centuries. The creativity that has gone into the creation of the legal instruments for financialization could (in principle) be turned to new legal and cultural meanings of ownership of land.
There are many kinds of challenges to the transformation I have in mind. One, of course, is that the economic and thus political power of property owners will be against it. Perhaps, however, an advantage is that land is no longer the key to wealth and power in countries characterized by financialized capitalism.
Another challenge is that what I have in mind by “care for the land” decenters both humans and the time frame of the present. The care should include “all our relations” over, at least, 7 generations, to borrow from Anishinaabeg teachings. The idea that humans stand at the top of a hierarchy of value is still a deeply engrained belief, even among those committed to trying to protect human well-being by combatting climate change. I don’t think that we can make the changes necessary to seriously mitigate the harms of climate change without challenging this hierarchy. And the hierarchy is so taken for granted that it rarely finds direct expression in the law. The rights of humans with respect to land, plants, and animals manifests, without articulating or justifying, the hierarchy. In articulating a duty of care to the land, the new law of property in land will have to shift that hierarchy. It will help that there is already a widespread understanding of the interdependence that characterizes life on Earth, and thus of the way human well-being is in many ways inseparable from the well being of “all our relations,” but that is still not the same as recognizing animals, plants, water and mountains as fellow subjects in a new legal, political, and social regime. Profound as this change would be, I think some version of it is essential for a sustainable world. The process of building care for the land into the very meaning of property in land could be part of a virtuous circle of manifesting and enabling the transformation. Existing concepts of land trusts (drawn from Indigenous law as well as common law in my context) can be used, along with the tort concept of duty of care, to propose changes to property law that will be intelligible—however alien they are in their non-individualistic positive obligations to more-than-human relations.
- The other side of my interest in the transformation of property law is changing the presumptions about ownership of the means of production. First, I want to note there was a kind of disjuncture between how I was thinking about property law of ownership of land and property law of ownership of productive enterprise. My recognition of the constitutive role of more-than-human entities in human relations and projects had not been fully integrated into my thinking about productive enterprise. Even as I wanted not only to challenge presumptions about ownership flowing from “capital” rather than “labour,” but also to insist that these are not the only relevant categories for ownership, I was not really thinking about the integration of the non-human. I was thinking about communities where enterprises are located and consumers, and participants in supply chains, but still in primarily human terms. Of course, if I had turned my mind to factory farms (which I am interested in ending not shifting the terms of ownership), I might have noticed that more-than-human entitles are involved. Similarly, if I had been focused on responsibility for pollution (also a function of ownership) I would have taken a wider view. I see this as an example of how a preoccupation with some forms of human-to-human harms (exploitation, poverty, exclusion from political power, social subordination) can generate a framework that tacitly excludes the more-than-human from view.
The presumption in both law and common beliefs is that ownership of factories and what they make resides in those who have provided the capital investment not in those whose labour built the goods. I think what is needed is increased experimentation with different models of ownership of enterprise, and gathering of data about all the different experiments there are out there, and what kinds of law facilitate them and could do so better. Both the experimentation and the data gathering should embrace the constitutive role of the more-than-human. Who and what would constitute the communities in which enterprises generate goods and services would expand to the full range of land, water, air, organisms, plants and animals, as well as humans, that are impacted or play or role in the production. Systems of ownership would encompass not just access to profits, but decision-making, and thus would also have to engage with the division between ownership and control that has become common, but which has rarely increased the control of workers. I think that some expansive utopian-type imagination, combined with imagination about the kinds of legal instruments that would facilitate these new forms is called for.
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
2016 Digital contents
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