The concept of private property and the limits of the environmental imagination

Political Theory

Volumn 37, Issue 1, 2009, Pages 99-127

  Meyer, John M ^a  

^a HUMBOLDT STATE UNIVERSITY   (United States)

Author keywords

Environmentalism; Liberal theory; Ownership; Private property; Takings

Indexed keywords

EID: 58449136909     PISSN: 00905917     EISSN: 15527476     Source Type: Journal    
DOI: 10.1177/0090591708326644     Document Type: Article

References (100)

1. Theodore Steinberg, Slide Mountain: Or the Folly of Owning Nature (Berkeley: University of California Press, 1995). 174.
2. Oregon Office of the Secretary of State, "Measure 37: Text of Measure," Voter's Guide for November 2, 2004 General Election, http://www.sos.state.or.us/elections/nov22004/guide/meas/m37-text.html. In fact, Oregon's initiative provided cash or waivers only for landowners whose title pre-dated the regulation being challenged. The peculiar result was that adjacent landowners were granted very different rights depending upon when they initially purchased their property. See Laura Oppenheimer, "Only Thing Developed by Measure 37 Is a Headache," The Oregonian, March 6, 2005.
3. Blaine Harden, " Anti-Sprawl Laws, Property Rights Collide in Oregon, " Washington Post, February 28, 2005.
4. Ibid., quoting Harvey Jacobs.
5. Laura Oppenheimer, " Voters nip libertarian dreams across U.S, " The Oregonian, November 13, 2006.
6. See Philip Brick and R. McGreggor Cawley, eds., A Wolf in the Garden: The Land Rights Movement and the New Environmental Debate (Lanham, MD: Rowman & Littlefield, 1996). Requiring compensation for the "taking" of private property development rights through government regulation was also a major provision of Republican-led efforts to reform the Endangered Species Act during the 109th U.S. Congress.
7. Harvey M. Jacobs, " The Future of an American Ideal, " in Private Property in the 21st Century, ed. Harvey M. Jacobs (Northampton, MA: Edward Elgar, 2004). 173-79.
8. Harden, "Anti-Sprawl Laws, Property Rights Collide in Oregon."
9. Jonathan Walters, " Law of the Land, " Governing Magazine, May 2005, http://www.governing.com/archive/2005/may/property.txt, p. 3 of 6.
10. See, for example, John S. Dryzek, "Green Democracy," in Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford, UK: Oxford University Press, 2000); and Graham Smith, Deliberative Democracy and the Environment (London: Routledge, 2003).
11. Cf. Michael Walzer, "The Communitarian Critique of Liberalism," Political Theory 18, no. 1 (1990): 6-23; Bernard Yack, "Liberalism and Its Communitarian Critics: Does Liberal Practice 'Live Down' to Liberal Theory?" in Community in America: The Challenges of Habits of the Heart, ed. Charles H. Reynolds and Ralph V. Norman (Berkeley: University of California Press, 1988).
12. By "utopian" I have in mind, here, its literal definition as existing nowhere. See my discussion of Polanyi's contrast between the utopianism of laissez-faire economic ideology and the pragmatism of resistance to this ideology in John M. Meyer, "Global Liberalism, Environmentalism, and the Changing Boundaries of the Political: Karl Polanyi's Insights," in Environmental Values in a Globalizing World: Nature, Justice, and Governance, ed. Jouni Paavola and Ian Lowe (London: Routledge, 2005).
13. Manfred B. Steger, Globalism: The New Market Ideology ( Lanham, MD: Rowman & Littlefield, 2002 ).
14. Edward Coke includes this maxim in The First Part of the Institutes of the Lawes of England. Steve Sheppard, ed., The Selected Writings and Speeches of Sir Edward Coke, 3 vols., vol. II (Indianapolis: Liberty Fund, 2003). 4a: 607.
15. Honora offers one notable exception to this, by including a "prohibition of harmful use" as one of his standard incidents of ownership (p. 123). By contrast, Jeremy Waldron argues that this prohibition ought not to be included within the concept of ownership itself- precisely because it is an exception-but ought to instead be treated as a general limit "to what may be done in a given society." Jeremy Waldron, The Right to Private Property (Oxford, UK: Clarendon Press, 1988), 32. I critique this quest to purify the concept of property of such notions as "what may be done" in subsequent sections of this essay.
16. Joseph Singer describes this concept of property as the "ownership model," which he critically contrasts with one that he terms the "entitlement model." While his analysis of these models is insightful and often echoed here, I find the labels that he applies misleading. Rather than simply equate ownership with the absolutist concept of property, for example, I believe it is more helpful to recognize that the question of what it means to "own" property is itself at stake. Cf. Joseph William Singer, Entitlement: The Paradoxes of Property (New Haven, CT: Yale University Press, 2000).
17. John Christman, The Myth of Property: Toward an Egalitarian Theory of Ownership (New York: Oxford University Press, 1994), 6; Morris R. Cohen, "Property and Sovereignty," Cornell Law Quarterly 13 (1927): 11 and passim.
18. John Locke describes the individual in the state of nature with just such imagery: "absolute Lord of his own Person and Possessions, equal to the greatest, and subject to no Body." Yet introducing political sovereignty-the objective of his social contract-necessarily qualifies the right-holder's sovereignty or absolute Lordship. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge, UK: Cambridge University Press, 1988). sec. 123; 250.
19. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). 51-53.
20. We can distinguish this from a view of the political as the location for necessary negotiations between diverse and often competing property claims.
21. Fred Bosselman, David Callies, and John Banta, " The Taking Issue: An Analysis of the Constitutional Limits of Land Use Control " (Washington, DC: G.P.O., 1973). 105-23. I develop (and qualify, slightly) this claim in a subsequent section of this essay.
22. Cf. Waldron, The Right to Private Property, 41, and Cohen, "Property and Sovereignty."
23. Singer, Entitlement, 4; Markku Oksanen, "Environmental Ethics and Concepts of Private Ownership," in Environmental Ethics and the Global Marketplace, ed. Dorinda G. Dallmeyer and Albert F. Ike (Athens: University of Georgia Press, 1998), 135.
24. A.M. Honora, " Ownership, " in Oxford Essays in Jurisprudence, ed. A. G. Guest (Oxford, UK: Oxford University Press, 1961). 107.
25. Ibid.
26. Waldron, The Right to Private Property, 39, 47-53.
27. Bruce A. Ackerman, Private Property and the Constitution (New Haven, CT: Yale University Press, 1977). 2.
28. Christman, The Myth of Property, 5, makes a similar point.
29. This echoes and develops the earlier analysis of Wesley Newcomb Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," Yale Law Journal 23, no. 1 (1913), 16-59; Wesley Newcomb Hohfeld, "Fundamental Legal Conceptions as Applied in Judicial Reasoning," Yale Law Journal 26, no. 8 (1917), 710-70.
30. Ackerman, Private Property and the Constitution, 26-27. Ackerman describes this as the core of what he terms the "scientific policymaker's" understanding of property, which he distinguishes from that of "ordinary observers," who view property in the manner I have described above.
31. I say "arguably." Yet these changes were controversial enough to precipitate legal battles that made their way to the U.S. Supreme Court. Regarding zoning, see Village of Euclid, Ohio V. Ambler Realty Co., 272 U.S. 365 (1926). Regarding airspace, see U.S. V. Causby, 328 U.S. 256 (1946).
32. As argued (ultimately unsuccessfully) by the plaintiff in Penn Central Transport Co. V. New York, 438 U.S. 104 (1978). For an illuminating discussion of air rights, see "Three-D Deeds: The Rise of Air Rights in New York," in Steinberg, Slide Mountain: Or the Folly of Owning Nature.
33. Leif Wenar, " The Concept of Property and the Takings Clause, " Columbia Law Review 97 (1997). 1930.
34. Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985), 57; Wenar, "The Concept of Property and the Takings Clause," 1936.
35. Honora, "Ownership," 109; also Alan Ryan, Property and Political Theory (Oxford, UK: Basil Blackwell, 1984), 2. Where the question of justification is taken as primary, the question of scope can be neglected, to ill effect. Seana Shiffrin offers a provocative example of this, arguing that theorists seeking to transfer Locke's labor theory of property to a justification for intellectual property typically fail to examine the prior question of whether this form of property would qualify as the sort of object that Locke would view as necessitating private appropriation from the commons. Seana Valentine Shiffrin, "Lockean Arguments for Private Intellectual Property," in New Essays in the Legal and Political Theory of Property, ed. Stephen R. Munzer (Cambridge, UK: Cambridge University Press, 2001).
36. David Bollier, Silent Theft: The Private Plunder of Our Common Wealth ( New York: Routledge, 2003 ).
37. Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon, 1957), 72; Arild Vatn, "The Environment as a Commodity," Environmental Values 9 (2000): 497.
38. Lewis Hyde, The Gift: Imagination and the Erotic Life of Property ( New York: Random House, 1983 ).
39. Polanyi's argument about so-called "fictitious commodification" makes this clear, as I will argue below.
40. John S. Dryzek, The Politics of the Earth: Environmental Discourses (Oxford, UK: Oxford University Press, 1997). 63-83.
41. David B. Hunter, " An Ecological Perspective on Property: A Call for Judicial Protection of the Public's Interest in Environmentally Critical Resources, " Harvard Environmental Law Review 12 (1988). 316-17.
42. Ibid.
43. Joel Kovel, The Enemy of Nature: The End of Capitalism or the End of the World? (New York: Zed, 2002), 238-42; David Pepper, "Anthropocentrism, Humanism and Eco-Socialism: A Blueprint for the Survival of Ecological Politics," Environmental Politics 2, Autumn (1993): 428-52.
44. Aldo Leopold, A Sand County Almanac: And Sketches Here and There (Oxford, UK: Oxford University Press, 1949). 203.
45. Aldo Leopold, " [1947] Forward, " in Companion to a Sand County Almanac, ed. J. Baird Callicott (Madison: University of Wisconsin Press, 1987). 281.
46. Leopold, A Sand County Almanac, 221.
47. Ibid., 224-25. Referring in an unpublished manuscript to "the concept of land as a community"-what he later described as the "B" view-Leopold asserts that "Ninety nine percent of the world's brains and votes have never heard of it. The mass mind is devoid of any notion [of] the integrity of the land community... " Quoted in Eric T. Freyfogle, The Land We Share: Private Property and the Common Good (Washington, DC: Island, 2003), 143. 48. Leopold, A Sand County Almanac, 204.
48. Ibid.
49. Garrett Hardin, " The Tragedy of the Commons, " Science 162 ( 1968 ).
50. On this shift in legal scholarship, see especially Gregory S. Alexander, "Propriety through Commodity? Why Have Legal Environmentalists Embraced Market-Based Solutions?" in Private Property in the 21st Century: The Future of an American Ideal, ed. Harvey M. Jacobs (Cheltenham, UK: Edward Elgar, 2004); also Carol M. Rose, "The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems," Minnesota Law Review 83 (1998): 129-82.
51. Terry L. Anderson and Donald R. Leal, Free Market Environmentalism, revised ed. (New York: Palgrave, 2001). 22. Emphasis added.
52. Tom Bethell, The Noblest Triumph: Property and Prosperity through the Ages (New York: St. Martin's Griffin, 1998). 287.
53. Both Mark Sagoff and Markku Oksanen distinguish between these two forms of appeal to the absolutist concept. Oksanen, "Environmental Ethics and Concepts of Private Ownership," 121-29; Mark Sagoff, "Free-Market versus Libertarian Environmentalism," Critical Review 6, no. 2-3 (1992): 211-30.
54. Anderson and Leal, Free Market Environmentalism, 35, 115, 42.
55. Tibor R. Machan, " Pollution and Political Theory, " in Earthbound: New Introductory Essays in Environmental Ethics, ed. Tom Regan (New York: Random House, 1984). 97.
56. Sagoff, " Free-Market Versus Libertarian Environmentalism, " 227.
57. Mark Sagoff, Price, Principle, and the Environment (Cambridge, UK: Cambridge University Press, 2004). 116.
58. E.g., Anderson and Leal, Free Market Environmentalism, 4.
59. Laura S. Underkuffler-Freund, "Property: A Special Right, " Notre Dame Law Review 71 (1996). 1034.
60. Thomas C. Grey, " The Disintegration of Property," in Property, ed. J. Roland Pennock and John W. Chapman, Nomos XXII ( New York: New York University Press, 1980 ).
61. Gary E. Varner, " Environmental Law and the Eclipse of Land as Private Property," in Ethics and Environmental Policy: Theory Meets Practice, ed. Frederick Ferre and Peter Hartel ( Athens: University of Georgia Press, 1994 ).
62. Grey, " The Disintegration of Property, " 69. Grey's contrast, here, echoes Ackerman's between "scientific policymakers" and "ordinary observers."
63. Ibid., 73.
64. Ibid., 74.
65. Varner, "Environmental Law and the Eclipse of Land as Private Property," 146.
66. Ibid., 144.
67. Ibid., 143.
68. Ibid., 158.
69. MacPherson describes the pre-modern view as holding property in things rather than regarding property as a right to things. C.B. MacPherson, " The Meaning of Property, " in Property: Mainstream and Critical Positions, ed. C. B. MacPherson (Toronto: University of Toronto Press, 1978). 6-9.
70. Louis Hartz, The Liberal Tradition in America; an Interpretation of American Political Thought since the Revolution ( New York: Harcourt Brace, 1955 ).
71. William Cronon, Changes in the Land: Indians, Colonists, and the Ecology of New England (New York: Hill and Wang, 1983). 75.
72. Ibid., 73.
73. Morton J. Horwitz, The Transformation of American Law 1780-1860 (Cambridge, MA: Harvard University Press, 1977). 31.
74. Ibid., 36, 31.
75. Freyfogle, The Land We Share, 79.
76. Ibid., quoting Novak.
77. Horwitz, The Transformation of American Law 1780-1860, 40.
78. Gregory S. Alexander, Commodity and Propriety: Competing Visions of Property in American Legal Thought 1776-1970 (Chicago: University of Chicago Press, 1997), 9, 388 fn. 19. Bosselman, Callies, and Banta, "The Taking Issue," 105-23.
79. Bosselman, Callies, and Banta, " The Taking Issue, " 319.
80. Freyfogle, The Land We Share, 65-84; Horwitz, The Transformation of American Law 1780-1860, 31-62.
81. Singer, Entitlement, 7.
82. For other proposals to reconceptualize property see: Markku Oksanen and Anne-Marie Kumpula, "Is the End of Environmentalism the End of Property? Ownership, the Environment and the Burden of Proof" (paper presented at the ECPR joint sessions: The End of Environmentalism? Turin, 2002); and Singer, Entitlement.
83. Daniel W. Bromley, "Property Rights: Locke, Kant, Peirce and the Logic of Volitional Pragmatism," in Private Property in the 21st Century: The Future of an American Ideal, ed. Harvey M. Jacobs (Cheltenham, UK: Edward Elgar, 2004), 26. See also Mark Sagoff, "Takings, Just Compensation, and the Environment," in Upstream/Downstream: Issues in Environmental Ethics, ed. Donald Scherer (Philadelphia: Temple University Press, 1990).
84. Ackerman, Private Property and the Constitution, 26-27.
85. Singer, Entitlement, 43.
86. Ibid., 44.
87. See Note 30.
88. See Note 34.
89. Wenar, " The Concept of Property and the Takings Clause, " 1944.
90. Polanyi, The Great Transformation, 178.
91. My discussion of Polanyi draws upon my analysis published in Meyer, "Global Liberalism, Environmentalism, and the Changing Boundaries of the Political."
92. Polanyi, The Great Transformation, 73.
93. Ibid., 72.
94. Mitchell Bernard makes a similar distinction between the "material" and "ideational" dimensions of the commodification of land. Mitchell Bernard, "Ecology, Political Economy and the Counter-Movement: Karl Polanyi and the Second Great Transformation," in Innovation and Transformation in International Studies, ed. Stephen Gill and James H. Mittelman (Cambridge, UK: Cambridge University Press, 1997), 85.
95. Polanyi, The Great Transformation, 141.
96. John M. Meyer, "Populism, Paternalism, and the State of Environmentalism in the U.S.," Environmental Politics 17, no.2 (2008): 219-238; Ronald Sandler and Phaedra C. Pezzullo, eds., Environmental Justice and Environmentalism: The Social Justice Challenge to the Environmental Movement (Cambridge, MA: MIT Press, 2006).
97. Polanyi, The Great Transformation, 154.
98. Eric Mortenson, " Voters Approve Land-Use Rules Changes, " The Oregonian, November 6, 2007.
99. Laura Oppenheimer, "Public Demands Land-Use Clarity," The Oregonian, February 23, 2007; Laura Oppenheimer, "Oregon, Prepare for a Land-Use Fight, Again," The Oregonian, March 30, 2007.
100. Cf. Avner de-Shalit, The Environment between Theory and Practice (Oxford, UK: Oxford University Press, 2000). 210-11.