Progressive Property: A Spatially Just Approach to Property?

Abstract

This chapter examines the progressive property school’s attempts to address property’s shortcomings, as it is one of the more recent critiques of the ownership model to have gained traction. The main characteristics of progressive property are described, and the contributions of prominent scholars are summarised in relation to virtue ethics, public trust and the common heritage of mankind. While noting that this school emerged in the specific cultural context of the US, and that its parameters are continuing to evolve, the chapter nevertheless outlines some conceptual limitations in progressive property thinking that have implications for developing a spatially just approach to property. The chapter concludes by reinforcing the importance of a legal geographical perspective when examining the law’s relationship with land.

The progressive property school of thought has attempted to challenge the ownership model and its grip on property. In a statement, four leading scholars outlined its main tenets.¹ These include the recognition that because property confers power and reallocates resources, it has the ability to alter social relationships and impact communities;² property as a social institution should thus meet underlying moral values³ and support a free and democratic society.⁴ Such a model would apply values consistent with human flourishing, and be responsive to the effects of claiming property rights on others, including the environment and the non-human world.⁵ Here, I briefly consider whether the conceptual possibilities afforded by progressive property are sufficiently transformative to incorporate spatial justice.

As Timothy Mulvaney writes, progressive property scholars ‘offer an alternative to what they see as the currently dominant conception of property that is heavily centered on coordinating economic transactions and for which standardised exclusion rights constitute ownership’s essential core’.⁶ Thus, property law making ‘must be more nuanced, more expressly political, and less preoccupied with the owner's right to exclude’.⁷ An understanding that ownership does not countenance alternative understandings of property (thus failing to accept property’s plural values), challenging the Demsetzian concept of economic maximisation as it relates to land⁸ and promoting social justice appear to characterise this scholarship.

This has led to several strands of research, including an investigation of property’s roots in Anglo-American law which predate the market and were previously aligned to a notion of social good,⁹ revealing that non-owners can build up long-standing attachments to land over time¹⁰ and promoting a new normative framework for land use based on virtue ethics.¹¹ However, critics have questioned the use of virtue ethics where human beings demonstrate that they can be situational ethical,¹² and whether using law to promote virtue is consistent with society’s value pluralism.¹³ Property theorists have also posited that property can play a constituent role in identity formation,¹⁴ but this is conceived of in individualistic terms, rather than spatial ones.¹⁵ There have been attempts to apply property as identity, but strictly as it applies to Indigenous peoples and the experience of dispossession of land within the settler colonial context.¹⁶

Absent in the discussions is the role of the land itself, and the attendant relationships that emanate from human interaction with the environment. These are not monolithic. Morality is not recognised as spatially embedded in the landscape as it evolved from the mores and use rights of local custom. Common customary law wielded power through moral pressure and community control, which protected shared resources from deterioration and loss.¹⁷ A universal morality may possess rhetorical force, but without a focus on lived-in people–place relations, the relevance of locally encoded behaviour to ecosystem protection will be overlooked.¹⁸

In addition, both the welfare function of property and the goal of human flourishing are informed by locally specific factors of geography as they manifest in the physical environment. Geographic disparities can define and exacerbate inequalities in public health, housing and food security. In fact, inequalities stem from the distribution of land, which differs from place to place. Terms such as ‘moral’, ‘welfare’, ‘flourishing’, ‘resource’ and ‘environment’, are therefore subject to heterotopian formulation, not accounted for in progressive property theory.

Society is composed of communities generating their own norms that can challenge and vary how property operates, rather than a generic public. Resources are also not generic, and the term itself implies extractability and exploitability, which does not encompass cultural understandings of land. Thinking of resources in terms of water, land, oil, minerals entrenches the alienability of land, not as a web of interacting rights, interests and uses but as separable strands easily teased out and exchangeable on the market. Arbitrary application of terms such as ‘common heritage of mankind’ elides the locally developed relationships that can be critical to the continued functioning of places. While the use of the public trust doctrine is claimed as a strength in unifying people with the environment under progressive property,¹⁹ it in fact demonstrates the limits of what property can do where lived-in places are concerned, because it is defined in terms of ownership, serving the  general public interest and for fixed purposes.²⁰

Landscape or place is therefore the omission in progressive property’s attempts to reconcile the public trust doctrine with the environment, particularly as this doctrine derives from Roman law and notions of state-owned property for the benefit of all its citizens, common to all or owned by all (communes omnibus and communes omnium respectively).²¹ It was not concerned with local interests in land. Modifying or balancing ownership prerogatives continues to rely on the assumption that private ownership can accommodate and respond to generic resources that exist to be exploited rationally via the market, rather than interconnected ecosystems that rely on place-specific communal interaction for continued functioning. Protecting resources, even in ostensibly sustainable ways, does not negate the extractable logic of property rights that facilitated dispossession and despoliation of land in the first place, particularly where those resources were perceived to be scarce.

While progressive scholars have indeed drawn attention to property’s limits in the social sphere, it is difficult to transcend private property, which is still aligned with individual freedom while the collective remains a homogenous interest. Non-ownership interests in land remain subordinate to property or are completely absent. Where redistribution is promoted, it is not clear that this involves communal understandings of land, which might vary from community to community. The intention is to ‘dissolve the baseline that private property exists primarily to advantage owners and create market gains (or, even, for that matter, to promote freedom) in favor of a system of property that regularly realigns so that it remains justified in terms of the widespread benefits it offers to the collective’.²² This interpretation might lend itself to the idea that individual property necessitates encumbrances in the name of welfare, a modern variation on Blackstone. In modifying individual ownership to achieve social justice goals for the collective, assumptions are made about the collective that ignore geography, and could ultimately undermine the integrity of place. Progressive property is thus hampered by its lack of place literacy.

However, it must be acknowledged that the main exponents of progressive property, thus far have been mostly American and concerned with the history, ethos and problems of land use in the United States. In the United Kingdom and Ireland, scholars drawing on legal realism and legal geography have begun to engage with the notion of property as abstract and reflect on the consequences for informal, lived-in relationships with land.²³ Land law in particular has been noted to be the body of law most committed to legal doctrinalism, and as a result, pays little attention to the ways in which people can be marginalised and rendered invisible through the reinforcement of legal norms.²⁴ This challenges the presumed neutrality of property and exposes the distorting effects of the ownership model on land.

In spite of these promising advances, progressive property scholarship has not replaced the existing normative framework. Thus far, there is simply no vocabulary for articulating the functions of landscape in the common law—it is an outlier in property law. In fact, landscape’s functions have been redistributed to other areas of law, such as cultural heritage law, planning law and environmental law, which act as proxies that reinforce the property concept by managing conflicts over custom, land use and environmental impacts in ways that insulate private property rights from challenges.

Propertising the landscape has thus contributed to spatial injustice—property as a narrative, as an institution and as a concept inhibits diverse understandings of land that align with physical reality, represent pluralistic values and respect non-ownership interests in land.