The Landscape of Ideas on Property Rights

My experience in attending the “Who Owns America? II” conference in Madison, Wisconsin, last June was like contemplating a landscape of ideas about land and people. From my perspective, this landscape had four salient features:

• the expansion of property rights;
• the challenge of the private/public dichotomy;
• the growing complexity of the physical world, which constitutes the ‘object’ of property rights;
• and the narrative approach as a methodological tool for better understanding property as a social relationship.

The most noticeable feature in U.S. legal thinking about land is the great importance of property rights. Latin American legal tradition, following French jurist Leon Duguit’s doctrine of the social function of property, tends to see property rights as something to be limited by government and law in order to meet social needs. So, it was a cultural shock for me to discover the popularity of Charles Reich’s theory about property, where egalitarian ideas are advanced by means of asserting individual property rights.

At the conference, one could see many different ways in which the notion of property rights was expanded to accommodate new social demands. Eric Freyfogle’s contention that property should have an honored place in society is one example. Of course, an idea does not have to be accepted unanimously in American legal thinking for it to be an important aspect of today’s landscape of ideas about property.

The second feature refers to the distinction between public and private-a distinction that is so essential to modern societies that it is usually taken for granted. We are used to recognizing the coexistence of two separate forms of social control over the same piece of land: that of private landowners and that of public government organizations. However, one has to remember that this separation is not eternal or universal; it is a historical product.

Urban studies have long shown that land use regulations constantly affect the relationships between public and private control. Planning powers and development rights have been shrinking and expanding since the inception of modern urban management, and that process is now seen as normal. A more profound challenge to the separation of public and private categories was raised at the conference by indigenous peoples’ claims to their territories in the United States.

Those claims refer to a third, not yet fully codified, form of social control over land. In general, indigenous peoples do not aim at controlling local governments, i.e. governing a territory through conventional means. They also reject being treated simply as private corporations who own land. They talk about rights of a different nature, with old and new elements, and they do so by challenging a series of treaties between the people and the state. A treaty is the typical form of legal relationship between a nation-state and an external force. Apparently, past treaties were supposed to ‘settle’ the territorial question. But those treaties are now being questioned both in terms of the public/private dichotomy and because the formation of a nation-state was not completed.

We must also recognize that classical legal thinking does not have the tools to give meaning to these developments, because it is the very foundation of that thinking that is being shaken. Clearly, these concerns are also being raised in Canada and Mexico, although under different forms and with different outcomes. Scholars and practitioners in legal theory, and particularly constitutional theory, in all three countries of North America can learn a lot from each other in this process.

We should not be surprised to see new forms of territorial control when there have been so many changes in the land itself. Thousands of books have been written about the transformation of the land, mainly from what we now call an environmental perspective. Land as the ‘object’ of property relations has become extremely complex, and this complexity is the third feature I see in this landscape of ideas. Territories have become very difficult to understand, and perhaps the most relevant development is the blurring of the urban/rural distinction. We do not have cities in the traditional sense of the word; what we have is a set of urbanization processes.

The heralds of cyberspace tell us that as distances are shortened through new technologies, space and distance have become irrelevant. The truth is that technological change, combined with demographic and social change, has only made land more complex. This is clear when we see, as in the papers presented at the conference, the great number of disciplines that describe, analyze and even sing about land. There is not a single discipline that can embrace land into one form of discourse.

Maybe the most interesting new way of looking at land is the narrative approach, the fourth feature in our landscape. Listening to stories about land throws more light on property relationships than many other empirical methods because it allows us to recognize the subjective aspects without getting too far from empirical social sciences. Compared to the rigidity of legal and economic approaches, personal accounts give us the fluidity of property as a social relationship, the changes that occur in that relationship as a result of many interactions, and the different meanings that a piece of land or a neighborhood can have for its dwellers, new settlers, visitors or others.

Recognizing the richness and vividness of people’s stories and contrasting this richness against the rigidity of legal categories does not require neglecting those categories. Indeed, this more subjective approach can be another way of taking the law seriously. There is hardly any social discourse about land, even in its most vernacular form, which does not have a normative connotation. When someone says ‘this land is (was or should be) mine,’ he or she is making a legal claim. Legal categories are important outside the professional circles of lawyers, judges and realtors precisely because they are part of people’s stories; moreover, their function is to give meaning to people’s experiences.

When legal categories are not able to embrace a people’s normative representations about land, the law has lost its meaning. If traditional legal thinking defines property as a bundle of rights, the narrative approach can teach us to see property rights as bundles of representations that can be used to help people give meaning to their relationship to the land. Maybe this is the main lesson I have learned from “Who Owns America?”: to use many lenses to look at the landscape and to explore comparative ideas about individual and community ownership, informal settlements and legal systems throughout North America.

Antonio Azuela is the Attorney General for Environmental Protection in the federal government of Mexico. A graduate of Universidad Iberoamericana (Mexico City) and the School of Law, University of Warwick (England), he has been the legal advisor to several state governments and federal government agencies on planning law. Mr. Azuela is author of La Ciudad la Propiedad. Privada y el Derecho-The City: Private Property and the Law (El Colegio de Mexico, 1989) and numerous other publications on urban and environmental law from a sociological perspective.

Editor’s Note: The “Who Owns America? II” conference in June 1998 was cosponsored by the Lincoln Institute and the North American Program of the Land Tenure Center at the University of Wisconsin-Madison.

The University of Wisconsin Press has recently published Who Owns America? Social Conflict over Property Rights, edited by Harvey M. Jacobs, and based on the first conference in 1995. Contact: www.wisc.edu/wisconsinpress