Property Rights in Contemporary Governance

Staci M. Zavattaro, Gregory R. Peterson, Ann E. Davis, Staci M. Zavattaro, Gregory R. Peterson, Ann E. Davis

• Éditeur: SUNY Press
• Année: 2019
• ISBN:
  9781438472904
• Sujet: Politica e relazioni internazionali
• Sous-sujet: Politica pubblica

Property is a concept that is seemingly simple to understand yet continually evolving in the face of cultural change and technological advance. Property Rights in Contemporary Governance examines the many meanings of property, how they have changed over time, and the roles they play in policy, society, and law. With its deeply interdisciplinary approach, the book offers perspectives from economics, environmental studies, history, law, philosophy, public administration, and public policy. The contributors discuss such topics as the origin of the corporation, the role of the takings law, the development of legal protections for financial instruments in nineteenth-century France, the impact of climate change, the shifts in philosophical conceptions of property required by advances in intellectual property rights, and the influence of new technologies, including drones. This is a comprehensive and thoughtful exploration of how our diverse understandings of property impact real-world governing strategies.

SECTION TWO CONTEMPORARY EXPLORATIONS OF PROPERTY RIGHTS AND INTERPRETATIONS

In this portion of the book, we shift our focus from historical conceptualizations of property rights in governance context to contemporary examples and case studies. Some of the chapters, readers will note, are theoretical in nature, while others rely on existing case law and policies to deeply explore issues such as environmental economics, water rights, coastal lands, drones, intellectual property, and even place branding. The variety of topics highlights how far-reaching conceptualizations of property run.

Turning toward popular news sources shows us disputes about real and imagined property. Take, for example, the highly contested “stand your ground” laws throughout the United States. Perhaps the highest-profile case resting on this law comes from Florida: Trayvon Martin. As Weaver (2008) explains, the foundation for the case comes from the stand your ground law, which then-governor Jeb Bush signed into law in 2005 in Florida. At its core, the new law replaced long-standing legal principle to retreat prior to using deadly force. This new interpretation was especially meant to give people the right to protect their personal property and immediately go into attack mode at the feeling of threat (ibid.). The assumption is that if someone intends to do harm to your property or your place, you therefore have the right to fight back immediately without consequence (ibid.).

Lawson (2012) notes that the case made international news from Sanford, Florida, given the historical context in the United States regarding black males, use of force, and implicit bias. As she details, the Trayvon Martin case began when the black teenager was walking home wearing a hooded sweatshirt and carrying iced tea and candy. George Zimmerman was on neighborhood watch when he felt threatened, called the police, explained he was going to handle the situation, then killed the teenager. After a long trial, massive public outcry, and even riots beyond Florida’s borders, the stand your ground law provided a successful defense of Zimmerman. He faced not a single penalty for the killing (Lawson, 2012). As Lawson describes, “The Trayvon Martin killing felt like a sequel to those past tragedies and reminiscent of a time period where no one wants to return, a time period which some say we never really left” (p. 281).

The essence of the case, supposedly, was visible property rights, but it became clear that the case sparked a debate over invisible property rights (racial issues and the fear of black bodies). In another example, the newspaper The Guardian published an intriguing story about the decline of the animal population and used the lens of property rights to develop measures to save them (Hadley, 2016). In the story, the author explains that someone would essentially speak on behalf of animals to give them a voice in the wake of habitat destruction when development occurs (ibid.). Indeed, Hadley has written a book-length volume on this idea of giving animals rights via human surrogates (Hadley, 2015), in which he notes that his ideas apply to nondomesticated animals who have no choice but to live off the land. If builders come in and continually destroy that habitat, then they should think about the ethical obligations of protecting animals and not just their bottom lines (ibid.).

Schlager and Ostrom (1992) take a similar approach in applying property rights and rules to examine the Maine lobster industry. Ideally, they argue, owners—who no doubt have exclusive rights regarding what to do with what is caught and fished—should think about common resources before overfishing or overtrapping. In the case of Maine, while the government owns the property rights, most fishermen work to protect those rights themselves. If someone is violating the rules, they all act together to protect the common-pool resources (ibid.). When government does try to intervene, by imposing quotas for example, the measures do not often work well, the authors note. The problem results from trying to legislate ethical behavior when all parties involved might not have the same ethic, so many options are needed to protect the pool resources.

As we write this in 2017, the Sioux of Standing Rock Reservation still are fighting the government’s placement of a pipeline through its land in North Dakota. Several property rights elements are at play in the case. Protestors from the tribe and environmental groups gathered on what government officials were calling private lands to show their displeasure regarding the pipeline (Silva, 2016). According to various news reports, protesters were cleared from the camp after using weapons to escalate tensions between themselves and authorities (ibid.). The protestors are against the pipeline, which will come within a half-mile of tribal lands. They also worry that runoff from the pipeline might poison local water systems (ibid.). In an interview with National Public Radio, tribe chairman Dave Archambault II noted that the dispute is over clean drinking water and further encroachment on tribal lands (NPR, 2016).

We could keep going with countless examples of how property rights undergird contemporary stories popular in our news. Who owns your social media posts when you die? What rights do you have when someone steals your ideas then claims them as their own? How can we reconcile our desire for owning real property with that of the commons? How do public-private partnerships blur the property lines? These questions, and many others, are why property rights are so important in contemporary governance.

With property rights, the idea of governance has rung through time. As the historical examples in Section 1 show, property rights involve people agreeing on a social contract regarding rights and responsibilities related to real and imagined property. Breakdowns and disputes occur when there is no agreement any more on what counts as property. Keeping ethical foundations at the center of property rights and rules requires networked actors working together for an ideal common good. This sounds nice, but, as we see, it is more complicated to apply in practice. For example, Sell and Prakash (2004) examine the role of networks in helping—or even harming—free-trade agreements. They explain how business interests in one network and nongovernment organizations in another succeeded in forming their agendas related to intellectual property rights. On one side, business interests claimed that poverty and government issues in developing nations prevent HIV/AIDS drugs from reaching the market at a fair price, while the NGOs argued that intellectual property rights prevented duplication and cheap replication of the drugs (Sell & Prakash, 2004). Both networks had success in various policy arenas but hit a snag related to U.S. policies. The authors conclude that words and networks do indeed matter when it comes to the intellectual property rights arena, showing the power both of working together and of property as an idea.

According to a World Bank paper (Keefer, 2004), governance actions play a crucial role in determining economic growth via policies related to property rights. At its core, growth is related to economic security, which also rests on property rights protections (ibid.). Put simply: no one will invest or develop if they fear the state will seize their assets. This becomes a bit trickier in developing nations, where government institutions might be less stable and the population less trusting (ibid.). Regarding rights and responsibilities once property decisions are made, Smith (2002) views them as covering a range from exclusionary to governance. One can think of this as purely individual rights on one end to commons protection on the other. Within this section, readers can see this tension in the examples the authors use to show the variations in property rights and protections. In an ideal situation, we all should think about the commons even when buying property for individual use: houses, cars, etc. Solar panels on homes or electric vehicles can lessen burdens on the commons, but sometimes those rational aspects are not part of purchasing decisions, showing the application of Smith’s spectrum.

This section delves further into discussions of property in contemporary governance issues. Readers will recognize some of the current events and concerns the authors have selected as case studies. The Consalo chapter on water rights, for example, ties into the Dakota Access Pipeline and the public battles for clean water in cities throughout the United States and globally. For example, Pacheco-Vega (2013) illustrates how polycentric governance models related to water management in Mexico transfer the obligation to take action from one actor’s hands into many. This idea sees responsibility for water governance as shared—the people who might be helped or harmed by the decisions should have a voice. This is what we see in Flint, Michigan, and at Standing Rock. Ravich’s chapter on drones taps into an ever-evolving discussion about private air space, privacy concerns in general—with drones snapping photos overhead—and technology transfer. The remaining chapters in the section, summarized in the book’s introduction, offer additional insights into pressing social issues viewed through a property lens.

REFERENCES

Hadley, J. (2015). Animal property rights: A theory of habitat rights for wild animals. London, UK: Lexington Books.

———. (2016). Could giving wild animals property rights help stop their decline? Retrieved from: www.theguardian.com/environment/2016/oct/27/could-giving-wild-animals-property-rights-help-stop-their-decline.

Keefer, P. (2004). A review of the political economy of governance: From property rights to voice. World Bank Policy Research Working Paper 3315.

NPR (2016). In fight over N.D. pipeline, tribe leader calls for peace and prayers. Retrieved from: www.npr.org/2016/10/27/499479185/in-fight-over-n-d-pipeline-tribe-leader-calls-for-peace-and-prayers.

Pacheco-Vega, R. (2013). Polycentric water governance in Mexico: Beyond the governing-by-river-basin council model. Paper presented at the 2013 Latin American Studies Association.

Schlager, E., & Ostrom, E. (1992). Property-rights regimes and natural resources: A conceptual analysis. Land Economics, 68(3), 249–262.

Sell, S. K., & Parakash, A. (2004). Using ideas strategically: The contest between business and NGO networks in intellectual property rights. International Studies Quarterly, 48(1), 143–175.

Silva, D. (2016). Dakota Access Pipeline: More than 100 arrested as protesters ousted from camp. Retrieved from: www.nbcnews.com/news/us-news/dakota-access-pipeline-authorities-start-arresting-protesters-new-camp-n674066.

Smith, H. E. (2004). Exclusion versus governance: Two strategies for delineating property rights. The Journal of Legal Studies, 32(S2), s453–s487.

Weaver, Z. L. (2008). Florida’s “stand your ground” law: The actual effects and the need for clarification. University of Miami Law Review, 63(1), 395–430.

5Ecological Economics, Property Rights, and the Environmental “Meta-commons”

DONALD G. RICHARDS

There are (at least) two approaches to economics that concern themselves with environmental issues, and each takes a very distinctive approach to the meaning of environmental values. I refer to these approaches as environmental economics and ecological economics, respectively. The differences in their approaches to environmental values imply corresponding differences in their respective understandings of important economic categories such as commodities, resources, costs, capital, consumption, investment, and other familiar members of the economic lexicon. These differences in turn reflect differences in the two outlooks in terms of ethical presuppositions including their assumptions regarding what they consider to be an effective regime of environmental property rights and obligations. I argue that the goal of long-term sustainability, a notion that is itself contested between the two perspectives, requires the ecological economics framework. I further argue that this goal will require particular policy measures and agreements that are both domestic and international in scope. Some of these policy measures will require a reconceptualization of the understanding of property from its more standard understanding(s).

ENVIRONMENTAL ECONOMICS VERSUS ECOLOGICAL ECONOMICS

To those unfamiliar with the two approaches, environmental economics (EE) and ecological economics (EcE) would appear to refer to the same subdiscipline within the larger study of economics.1 Certainly, EE and EcE have in common that each is concerned with the human-nature relationship. But the differences that separate their respective understandings of that relationship are at least as important as the differences in their respective modifiers, environmental and ecological. Whereas the natural environment refers to the flora and fauna and organic and inorganic entities that coexist in a prescribed geography, nature’s ecology refers to these entities, to the web of relationships that link them, and their mutual, dynamic interactions.

From the EE perspective, nature is regarded as a storehouse of natural resources that are appropriated and combined with other factors of production such as labor and capital to produce final goods and services. The value of natural resources, and therefore the value of nature, according to the EE view, is determined in markets for natural resource commodities. These values embodied in final goods are aggregated into gross domestic product (GDP), which is the all-encompassing measure of a nation’s economic welfare. Nature, then, via the market mechanism, adds its value to aggregate national welfare in a way that is indistinguishable from that of other productive factors. The EcE perspective, by contrast, begins by rejecting the notion that human beings stand outside of nature, from which position they simply appropriate its “gifts.” Rather, EcE regards the human species as an integral part of nature and dependent on the functioning of nature as a system, and on the functioning of its various subsystems, as are other species with which it shares the global environmental system. While EcE shares with EE the idea that human beings appropriate entities from nature for the purposes of production and reproduction, it maintains that the manner of this appropriation has implications for the long term sustainability and flourishing of its own species and of other species with which it shares the environmental system. The concept of sustainability, in fact, is one on which the two approaches substantially diverge and is deserving of more detailed consideration.

Weak versus Strong Sustainability

EE is associated with conventional neoclassical economics, and the latter outlook in turn is closely identified with Robert Solow (Solow, 1993), who sets out a clearly articulated definition of sustainability. This definition has been labeled as weak sustainability (WS) and includes the following precepts. First, WS defines sustainability in terms of a non-declining stock of capital over time, where capital is understood to include both produced and natural capital, sufficient to maintain a constant stream of consumption. Supporting this definition are several provocative assumptions. The first of these is that produced and natural capital are substitutable such that a drawing-down of the stock of natural capital presents no threat to sustainability as defined, as long as future generations are compensated with a sufficient addition to their stock of produced capital. Capital as a whole then is considered perfectly fungible, and no part of the stock of n...