Guest Post by Dr Paul Babie. Paul is is Associate Dean of Law (Research), Adelaide Law School. He holds a BA in sociology and politics from the University of Calgary, a BThSt from Flinders University, a LLB from the University of Alberta, a LLM from the University of Melbourne, and a DPhil in law from the University of Oxford. He has also worked as a barrister and solicitor.
I. What Private Property Is
Climate change is private property problem. That may seem a little esoteric—let me explain what I mean. We begin with liberal theory, from which the dominant contemporary concept of private property emerges. Liberalism concerns itself with the establishment and maintenance of a political and legal order which, among other things, secures individual freedom in choosing a ‘life project’—the values and ends of a preferred way of life. In order for life to have meaning, some control over the use of goods and resources is necessary; private property is liberalism’s means of ensuring that individuals enjoy choice over goods and resources so as to allow them to fulfil their life project.
Within this framework, the liberal conception of private property is, in simple terms, a ‘bundle’ of legal relations (or rights) created, conferred and enforced by the state (law), between people in relation to the control of goods and resources (1). At a minimum, these rights typically include use, exclusivity, and disposition. One can use one’s car (or, with few exceptions, any other tangible or intangible good, resource, or item of social wealth), for example, to the exclusion of all others, and may dispose of it. And the holder may exercise these rights in any way they see fit, to suit personal preferences and desires. Or, we might put this in a way that comports more with the language of liberal theory—rights are the shorthand way of saying that individuals enjoy choice about the control and use of goods and resources in accordance with and to give meaning to a chosen life project.
Notice, though, that in my definition, such rights exist only as a product of relationship between individuals. This is significant, for it focuses our attention on the fact that where there is a right (choice) to do something, there is a corresponding duty (a lack of choice) to refrain from interfering with the interest protected by the right (2). Rights would clearly be meaningless if this were not so. The liberal individual holds choice, then, while all others (the community, society) are burdened with a lack of it as concerns that good or resource. C Edwin Baker summarised the idea of rights and relationship this way:
…[private] property [i]s a claim that other people ought to accede to the will of the owner, which can be a person, a group, or some other entity. A specific property right amounts to the decisionmaking authority of the holder of that right. (3)
Private property, then, is not merely about the control and use of goods and resources, but also, significantly, about controlling the lives of others. Identifying the importance of relationship reveals the fact that private property and non-property rights overlap; choices made by those with the former have the potential to create negative outcomes—consequences, or what economists call ‘externalities’—for those with the latter. Every legal system acknowledges this problem and, in doing so, accepts that with rights come obligations towards others (4). The state, through law, creates private property just as through that same law (what is more commonly known as regulation) mediates the socially contingent boundary between private property and non-property holders. This is, in fact, the essence of private property—state conferral of self-serving rights that come with obligations towards others (5).
This brings us full circle to the broader liberal theory with which we began, for the importance of relationship in understanding private property reveals an important, yet paradoxical, dimension of choice. It is simply this: the freedom that liberalism secures to the individual to choose a life project means that in the course of doing that, the individual also chooses the laws, relationships, communities, and so forth that constitute the political and legal order. In other words, in the province of politics people choose their contexts (through electing representatives, who enact laws and appoint judges who interpret those laws), which in turn defines the scope of one’s rights—choice, decisionmaking authority—and the institutions that confer, protect and enforce it. Individuals as much choose the regulation of property as they do the control and use of goods and resources (6).
II. How Private Property Facilitates the Human Consequences of Climate Change
When we focus on relationship as central to private property and the political-regulatory contexts we choose, we begin to see something else. It was always there, but it was hidden. The externalities of private property create many other types of relationship in which the lives of many are controlled by the choices of a few. Anthropogenic climate change is a stark example.
While the science is complex, it is clear enough that humans, through their choices, produce the gasses that enhance the natural greenhouse effect which heats the earth’s surface. Among other effects, this enhancement results in drought and desertification, increased extreme weather events, and the melting of polar ice (especially in the north) and so rising seas levels. We might call this ‘climate change relationship.’ And private property facilitates choice (both human and corporate) about the use of goods and resources in such a way that emits greenhouse gasses. Our choices about goods and resources cover the gamut of our chosen life projects: where we live, what we do there, how we travel from place to place and so forth. Corporate choices are equally important, for they structure the range of choice available to individuals in setting their own agendas, thus giving corporations the power to broaden or restrict the meaning of private property in the hands of individuals. Green energy (solar or wind power), for instance, remains unavailable to the individual consumer if no corporate energy provider is willing to produce it.
Once we choose, others are affected. Externalities do not end at the borders, physical or legal, of a good or resource; choices occur within a web of relationships, not only legal and social, but also physical and spatial. Who is affected? Everyone, the world over, with the poor and disadvantaged of the developing world disproportionately bearing the brunt of the human consequences of climate change (7) —decreasing security, shortages of food, increased health problems, and greater stress on available water supplies.
Consider human security. This will decrease both within countries affected directly by climate change, and in those indirectly affected through the movement of large numbers of people displaced by the direct effects of climate change in their own countries. In the case of rising sea levels, for instance, sixty percent of the human population lives within 100 km of the ocean, with the majority in small- and medium-sized settlements on land no more than 5 m above sea level. Even the modest sea level rises predicted for these places will result in a massive displacement of ‘climate’ or ‘environmental refugees’. And private property, through securing choice about the use of goods and resources to those in the developed world, makes all of this possible.
III. Is it the Solution?
Yet private property and the commodification it depends upon seems to be in vogue at the moment as a solution to anthropogenic climate change. Creating a proprietary interest in carbon that can be bought and sold is the answer, is the political choice, it is claimed and we believe, to the climate crisis. Is it really? We could just as easily say that the concept of private property is the primary culprit. Is it wise to entrust the solution to the concept that put us here? Or might it be more appropriate, as Mike Hulme suggests, to ‘…see how we can use the idea of climate change—the matrix of ecological functions, power relationships, cultural discourses and material flows that climate change reveals—to rethink how we take forward our political, social, economic and personal projects over the decades to come.’ (8) Before we pin our hopes on it as a cure-all, we might ask first whether the liberal concept of private property is ripe for just such a reappraisal.
1. See Joseph William Singer, Introduction to Property (2nd ed 2005) 2.
2. Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16; Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale Law Journal 710.
3. C Edwin Baker, ‘Property and its Relation to Constitutionally Protected Liberty’ (1986) 134 University of Pennsylvania Law Review 741, 742-3 (emphasis added).
4. Joseph William Singer, ‘How Property Norms Construct the Externalities of Ownership’, (2008) Harvard Law School Public Law Research Papers, 2008-No 08-06 <http://ssrn.com/abstract=1093341> at 14 January 2009, 3 (emphasis in the original).
5. Joseph William Singer, Entitlement: The Paradoxes of Property (2000) 204 (emphasis added).
6. I am most grateful to Joseph William Singer for bringing this crucial point to my attention.
7. United Nations Intergovernmental Panel on Climate Change, Climate Change 2007 – Impacts, Adaptation and Vulnerability: Working Group II Contribution to the Fourth Assessment Report (2007) <http://www.ipcc.ch/ipccreports/ar4-wg2.htm> at 14 January 2010, 7.
8. Mike Hulme, Why We Disagree About Climate Change: Understanding Controversy, Inaction and Opportunity (2009) 362.