AbstractsLaw & Legal Studies

Private Property's Hidden Potential

by Benjamin Trevor France-Hudson

Institution: University of Otago
Year: 0
Keywords: Private Property; Social Obligation Norm; Law; Environmental Management; Natural Resources; Quota Management System; Fisheries; Carbon Trading; New Zealand Emissions Trading Scheme; New Zealand; Environmental Law
Record ID: 1316981
Full text PDF: http://hdl.handle.net/10523/5496


This thesis argues that the social obligation norm of private property provides a compelling account of the operation of private property within certain environmental management schemes. It further argues that the social obligation norm provides a principled way of explaining why private property can be a useful tool of environmental management. It follows that private property need not be viewed as incompatible with environmental protection. Private property can be, and in fact is being, deployed in creative ways to achieve positive environmental results. It is argued that the social obligation norm already exists as part of our cultural understanding of private property, as a counter-tradition to the classical liberal account. It focuses on obligations to the community rather than solely on the rights of individuals and suggests that private property is a social institution which entails obligations to the community and makes affirmative demands of property owners. In addressing environmental problems, this observation allows us to focus on our existing traditions of property without forcing us to attempt a complete reconceptualisation of the institution. The argument is illustrated by reference to the New Zealand quota management system for fish established by the Fisheries Act 1996 and the New Zealand Emissions Trading Scheme established by the Climate Change Response Act 2002. Analysis of the private property rights relied on by these schemes suggests that each regime attempts to employ the positive incentives that flow from ownership, but does so while restricting the scope of that ownership in line with social objectives. This provides evidence that the social obligation norm is present in our current property law and suggests that the norm is an inherent part of the institution of private property. Perhaps more importantly, this analysis suggests that the architects of these schemes have done a very good job of creating regimes with the potential to achieve their goals while avoiding the pitfalls of private property. This provides a template for the ongoing efforts to reconcile the utility of private property as a tool of environmental management with the fact that it can also be the root cause of environmental problems. The argument also serves to demonstrate, in concrete terms, that private property is a social institution serving social purposes. The presence of the social obligation norm in both our legal history and current law suggests that classical liberal theory lacks predictive power. This has exciting ramifications for the future of property scholarship generally. It is concluded that environmental management regimes that rely on private property need not be mistrusted; instead they should be viewed as counter-intuitively positive. The use of property in this sphere also has the potential to further our cultural understanding of private property as entailing both privilege and obligation.