Dephysicalisation and entitlement: Legal and cultural discourses of place as property

Publication Type:
Chapter
Citation:
Environmental Discourses in Public and International Law, 2012, pp. 96 - 120
Issue Date:
2012-01-01
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© Cambridge University Press 2012. Introduction The relationship between environmental degradation and the discourse of property is profound, yet little understood and seldom questioned. Indeed, private property in land and natural resources is sufficiently fundamental to modern society that market-based approaches to environmental regulation are regarded as orthodox components of contemporary environmental law. But there is abundant scope for reform. Property is neither a universal nor static concept. Successful human societies have been those able to adapt their property system to changing environmental contexts. The Anglo-American concept of private property is historically, culturally and geographically specific and has been less than successful at being adaptable to different and changing geographical and climatic contexts. The question of this chapter is not whether the basic legal category of property should or could change to better ‘address some of the incentive systems that generate our environmental degradation’. The question is how to do so? The two constitutive features of the Anglo-American concept of property are precisely what render it unsuitable as a land use and ownership system: dephysicalisation and entitlement. The concept of property works by excluding or abstracting from the property equation the physical specificity of what is owned (dephysicalisation). Consequently, land and natural resources are regarded as no more than the ‘thing’ of the property relation. Abstraction thus makes possible entitlement to property that, untied from its physicality and the sustainability of its uses over time, furnishes the basis of its ongoing alienability, and the exclusion of all others to its benefits or profits. The conversion, in property law, of particular, unique and non-replaceable ‘things’ such as land, water and natural resources into abstract rights over non-specific, fungible and replaceable commodities is the intellectual and legal foundation of unsustainable forms of land use. It is the dephysicalisation of and entitlement to ‘almost anything’ in the world that the legal and cultural discourses of property make possible. Further, ‘the rewards’ that property ‘promotes and encourages’ present insurmountable obstacles to the objectives of environmental law.
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