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Life, Liberty, and the Pursuit of Authentic Development: Fulfilling Stare Decisis through the Principles of St. John Henry Newman
Full text linkWomen, the Law, and Sexual Assault: Why the Model Penal Code\u27s Ordinary Resolution Standard Furthers Victim Blaming
Full text linkChapter 6: Resilient Property Theory
No full textStates’ responses to ‘propertised’ resource problems go to the heart of property theory and property law, locating the governance of property - through private property rights and commons - at the forefront of current political, legal and scholarly debates. These debates are anchored in liberal theories of property, which in turn are rooted in classical liberal theories of the state. As social, economic, political and environmental transformations have re-configured the state’s public power, and private property’s power, these implications have not yet been worked through in accounts of private property law. If property theory is to make a meaningful contribution to addressing the wicked property problems that manifest in the global challenges of developing sustainable housing, financial and environmental systems, the approaches and methodologies of property scholarship, and the theories we build to understand, interpret and explain property require fresh attention. This chapter offers a new approach and methodology for thinking and talking about property law and theory, drawing insights from wicked problem theory, vulnerability theory and sustainability theories, and rooted in a realistic account of the nature of the twenty-first century nation state. Taking a methods assemblage approach, RPT avoids framing limitations that narrow the view of problems, and enables a new approach and methodology for property scholarship that focuses on the resilience needs of all stakeholders, including the state
Chapter 7: Scaling Property Law
No full textThe ‘politics of scale’ is a phrase that has come to mean the socially constructed landscape where a broad range of social, political and economic activities, including capital accumulation, state regulation and more occur. Scale itself is a concept of measurement and comparison where values increase or decrease in value based on other factors. Property is an apt area to deploy the concept around the politics of scale as property has been the subject of much academic discussion. This chapter offers a backdrop to those intersections by providing a lens for thinking across the distinctive registers of scale that property conflicts occur within. This chapter advances property methods in two distinct ways. First we identify the three registers of scale in the property context and how they shape property disputes. Property conflicts operate in the hierarchical scale (competencies) both in the ways that states empower individuals to control resources in land but also in the way states themselves regulate interests in property resources. Property can also be measured on a material register (capabilities) - or the extent, value, or length of claims in property. Finally, property operates on a rhetorical or discursive scale, where values are imposed on property claims to support individual or communal expectations of resource use. These values are often combined to validate some action on property resources. This chapter also aligns existing property scholarship within a scaled discourse by demonstrating how these three registers have been deployed to validate or invalidate action on property
Operationalising Progressive Ideas About Property: Resilient Property, Scale, and Systemic Compromise
Full text linkProperty theory is at a crossroads. In recent decades, scholars seeking to advance progressive ideas about property have embraced ‘Progressive Property’ theories that seek to advance the goals of social justice and the common good, offering a vital counter-weight to utilitarian and neo-conservative accounts of property. Progressive Property theories seek to correct an imbalance in American property discourse which—across the temporal scale—has sustained a range of narratives and normative commitments, but which has veered towards extreme acquisitive individualism and the rhetoric of property absolutism since the 1970s. The idea that individual property rights are not absolute but defined by the requirements of social justice is uncontroversial in many European jurisdictions, reflecting their normative foundations in traditions of European social welfarism and Catholic social teaching. In Property Rights and Social Justice: Progressive Property in Action, Walsh foregrounds a system designed for normative hybridity, and evaluates the practical possibility of balancing commitments to social justice within a system that upholds private property rights.
In this Article, we build on Walsh’s account to consider the implications of her insights for scholars seeking to advance progressive ideas about property in the U.S. context across three registers of scale: rhetorical, jurisdictional, and physical. Applying Resilient Property Theory (“RPT ), we reflect on how the dominance of rhetorical methods in the last half-century has foregrounded ideological conflicts between competing normative commitments in U.S. property scholarship, locating scholars seeking to advance progressive ideas about property on a battleground that has been prepared to benefit others. Building on Walsh’s approach of “widening the doctrinal lens,” we argue that RPT offers a new methodological toolkit for advancing progressive ideas about property: by widening the legal lens; widening the contextual lens; and widening the methodological lens. We argue that each of these approaches, as they engage with material and hierarchical scales, offers opportunities to identify and advocate for compromise positions between respect for private property rights and social justice considerations, enabling active political and legal engagement with normative diversity and respecting and taking seriously different legal conceptions of the good
