Harvey M. Jacobs is on the faculty of the University of Wisconsin-Madison, where he holds a joint appointment as professor in the Department of Urban and Regional Planning and the Institute for Environmental Studies and serves as director of the Land Tenure Center. His research and teaching investigate public policy, theory and philosophy for land use and environmental management. During the last decade he has focused his domestic work on the impact of the private property rights movement. He wrote the book Who Owns America? Social Conflict over Property Rights and the Lincoln Institute policy focus report State Property Rights Laws: The Impacts of Those Laws on My Land, and his work has been published in academic and professional journals in the U.S. and Western Europe. Jacobs also has investigated international issues of land use policy formation by national ministries and new local governments in Eastern Europe and southern Africa, with a specific focus on peri-urban (urban fringe) land management and the definition of private property rights. He is particularly interested in how societies define property and the policy structures they develop to manage the public-private property relationship.

Jacobs is a faculty associate of the Lincoln Institute, where he teaches courses for policy makers and practitioners in land use planning and management. He developed a Lincoln course titled “Land Use in America,” originally designed for staff of the Environmental Protection Agency and now available through open enrollment, which he has taught several times in Cambridge. As part of his current education and research project with the Institute, he will lead a seminar in Cambridge in May on the future of private property rights in America, and he is working on another book to be titled Private Property in the 21st Century. This essay outlines his views on the uncertain future of the American ideal of private property rights.

Property Rights and Environmental Planning

Social conflict over property rights is at the center of all U.S. land and environmental planning and policy. One key source of this conflict is the differing interpretations of the so-called Takings Clause of the Fifth Amendment in the Constitution’s Bill of Rights: “. . . nor shall private property be taken for public use, without just compensation.”

Those who support the integrity of private property rights and stand against land use and environmental regulation by state and local governments can be understood as participants in one of the most significant U.S. land use and environmental movements of recent times. This movement is referred to by a variety of labels, including the private property rights movement, the land rights movement, the wise use movement and, by the environmental community, the anti-environmental movement. This movement’s leaders have succeeded in keeping their agenda before the U.S. Congress since the early 1990s, though as yet no action has resulted from their efforts. More significantly, they have succeeded in having bills reflecting their agenda introduced in all 50 states, and they have secured the passage of significant legislation in over half of the states. In addition, they have promoted significant parallel activity in over 300 counties. Perhaps most important, they have reshaped public debate on how the media communicates to the American public about issues of land and environmental management, and the balancing of the public good with individual property rights.

The potential power of the property rights movement became even more important after the 2000 elections. While governor of Texas, George W. Bush exhibited strong sympathies to the arguments of the property rights movement and supported state-based legislation in accordance with the movement’s goals. Among his most prominent initial appointments as president were the selection of a secretary of the interior and a solicitor general with explicit ties to the property rights movement and commitments to the property rights issue. These developments, together with renewed activity at the state level, indicate that the property rights movement seems to be alive and well in America. The passage of Measure 7 in the state of Oregon in the fall of 2000 is of particular interest, since this measure is one of the most stringent state property rights laws in what is considered one of the most progressive states in its land use and environmental management policies. The measure, passed by initiative, requires landowners to be compensated if the value of their property is reduced by a state or local law or regulation. It is under state constitutional challenge by land use and environmental groups, and its implementation is being held back until this challenge is settled by the Oregon courts.

Historical Context

Underlying the policy agenda of the property rights movement and the conflict with the land use and environmental movements is a fundamental debate about U.S. history, the cultural myths that inform our understanding of ourselves as a nation, and the intended meanings of selected provisions of the Bill of Rights. From the perspective of the property rights movement, strong individual private property rights are an integral component of our democratic society. Drawing from the writings of the nation’s founders such as John Adams, James Madison and Thomas Jefferson, these proponents argue that liberty, equality and citizenship in a democracy, in fact democracy itself, can not be secured and sustained without a robust set of property rights essentially unassailable by the power of the state. From this perspective, land use and environmental laws become a threat to the very nature of democratic way of life. Richard Epstein, one of the leading legal scholars articulating this view, has suggested that “the [entire] system of land use planning is a form of socialism in microcosm” (Epstein 1992, 202).

In opposition, the land use and environmental movements also draw from the writings of the founders, including Benjamin Franklin and Thomas Jefferson, to argue that property rights are created by the public sector to serve social ends, and that citizens’ rights in property have to bend and flex with society’s changing needs over time. Land use and environmental proponents tend to make arguments about rights and responsibilities in property, rather than to see individual rights as preexisting or standing before the rights of society, as expressed through the actions of government.

The historical challenge for this debate is the that private property has been subject to substantial local regulation even since colonial times, and it has been fundamentally reshaped at several times in American history, to reflect changing social values and changing technology. For example, in the 1860s the property ownership rights of slave-owning plantation farmers in the South and in the 1960s the commercial trespass rights of lunch-counter owners were significantly reshuffled to reflect changing social values about race relations. In the early part of the twentieth century it was necessary to reconceptualize the property rights bundle as a function of the invention of the airplane and the seeming nonsense of allowing individual owners to claim trespass for air travel above their property.

Changing Conditions

Social reformulation of private property to reflect changing conditions continues. During the 1990s resistance by male-only membership clubs and male-only colleges to the admission of women was prominent in the media and the courts. Like the prior slavery and civil rights situations, here, too, individuals lost their rights in property, absent compensation, to reflect changing social values.

Thus, we know that private property is not a static concept or entity. In America it has changed since its creation during colonial times, and there is every reason to believe it will continue changing in the future. In fact, for over fifty years some ecologists and land ethicists—most prominently and enduringly Aldo Leopold (1949)—have called for a fundamental reinvention of property, based on new scientific knowledge that is less individual-rights oriented and more oriented toward social and ecological responsibilities.

It is reasonable to say that both sides to this debate have legitimate concerns and perspectives on the issue. Some property rights reforms through land use and environmental planning and policy, when taken too far, do seem to violate fundamental American understandings about the social contract that underlies national life. On the other hand, unassailable bundles of private property rights seem to leave society in a place that does not allow for change through the integration of new technologies, new social values, or new concepts of ourselves and the land on which we live.

Social conflict over property rights is at the center of all U.S. land and environmental planning and policy. However, much of the current scholarly inquiry and legislative and judicial debate that occurs now is formalized posturing, with little real communication around an issue that is one of the most central to our democratic society. Too often, the well-known players trot out their already settled analyses and opinions and wave them at one another. Little real progress occurs, either in intellectual understanding of these matters or in policy innovation.

The goal of my current work is to get key actors to put aside their rancor and agree to talk with one another instead of at one another. Is it possible to move beyond the broad rhetoric in this debate to a determination of clear, specific areas of agreement and disagreement about the place and role of the property rights bundle and the concept of property rights in our American democratic-legal schema? The challenge is twofold: accepting that private property is fundamental to the American character and the design of American democracy, and acknowledging that private property has changed significantly through the centuries and thus will continue to change. The issue is not if private property will evolve, but how it will evolve.

As we seek to address this issue, many questions present themselves. How much will new ecological knowledge and social values transform our sense of what is mine to use (and misuse and abuse) as I please? Is the evolutionary transformation of private property a slippery slope that eventually undermines the viability of contemporary democratic forms of governance? Are the ideals and principles of the founding fathers about the relationship of land ownership to liberty and democracy irrelevant in a world of urban wage earners, in contrast to the world of farmers, foresters and ranchers for which they were formulated? These are among the challenges we face in trying to untangle a puzzle that is the key to the future of American (and increasingly global) land use and environmental planning.

References

Epstein, Richard. 1992. Property as a Fundamental Civil Right, California Western Law Review 29(1):187-207.

Jacobs, Harvey M. 1998. Who Owns America? Social Conflict over Property Rights. Madison, WI: University of Wisconsin Press.

——. 1999. Fighting Over Land: America’s Legacy . . . America’s Future? Journal of the American Planning Association 65(2):141-149.

——. 1999. State Property Rights Laws: The Impacts of Those Laws on My Land. Cambridge, MA: Lincoln Institute of Land Policy.

Leopold, Aldo. 1968 [1949]. A Sand County Almanac. London and New York: Oxford University Press.

An apparent paradox exists in developing countries between a more progressive definition of property rights and current trends toward privatization. On one hand, most proposals and programs of urban management have required the adoption of a socially oriented approach to property rights, which guarantees broader scope for state intervention in controlling the process of land use and development. This is particularly the case with land regularization programs. On the other hand, the widespread adoption of liberalization policies and privatization schemes has reinforced a traditional, individualistic approach to property rights, thus undermining progressive attempts to discipline the use and development of urban property. Are these trends mutually exclusive or can they be reconciled to some extent?

Two related workshops for policymakers, urban managers and academics were held in Johannesburg, South Africa, in late July to address this paradox. The Sixth “Law and Urban Space” Workshop was cosponsored by the International Research Group on Law and Urban Space (IRGLUS) and the University of the Witwatersrand’s Centre for Applied Legal Studies (CALS). The Lincoln Institute supported that workshop and also sponsored a seminar on “Security of Land Tenure in South Africa, Sub-Saharan Countries, Brazil and India.”

The Conceptual Framework for Law and Urban Space

IRGLUS, a Working Group of the Research Committee on Sociology of Law of the International Sociological Association (ISA), seeks to discuss critically the legal dimension of the urbanization process, thus promoting a long-needed dialogue between legal studies and urban environmental studies. Most urban studies have reduced law-including legal provisions, judicial decisions and the overall legal culture-to its instrumental dimension. Law is dismissed by some as if it were just a political instrument of social discrimination and political exclusion. It is taken for granted by others as if it were merely a technical, unproblematic instrument that can provide immediate solutions to escalating urban and environmental problems.

Among urban scholars and professionals alike, there is little understanding of the reasons for the growing illegal practices identified in urban areas, particularly those concerning the use and development of land. Existing data suggests that if both access to land and construction patterns are taken into account between 40 and 70 percent of the population in the major cities in developing countries are somehow disobeying the prevailing legal provisions. And this figure is not confined to low-income land users.

Few studies have asked why this phenomenon of urban illegality has happened, why it matters and what can be done about it. Most observers fail to see the apparent divide between the so-called legal and illegal cities as an intricate web in which there are intimate though contradictory relationships between the official and the unofficial rules, and between the formal and the informal urban land markets.

The combination of the lack of an efficient official housing policy in most developing countries and the actions of largely uncontrolled market forces does not provide adequate housing solutions for the vast majority of the urban population. Far from being restricted to the urban poor, urban illegality needs to be addressed with urgency, given its grave social, political, economic and environmental consequences to the overall urban structure and society.

However, if urban illegality is but a reflection of the powerful combination of land markets and political systems, it is also the result of the often elitist and exclusionary nature of the legal system prevailing in many developing countries. Both the adoption of legal instruments, which do not reflect the existing social realities affecting access to urban land and housing, and the lack of proper legal regulation have had a most perverse role in aggravating, if not determining, the process of socio-spatial segregation.

Definitions of Property Rights

One the most significant problems affecting urban management in this context is that, despite the existence of rhetorical provisions, urban environmental policies frequently lack legal support in the basic provisions of the legal system in force, especially those of a constitutional nature. The central issue to be addressed in this regard is property rights, specifically urban real property. Indeed, in many countries the progressive, socially oriented assumptions of urban policies, implying as they do a broad scope for state action, are frequently at odds with the constitutional definition of property rights.

Several presentations in the IRGLUS/CALS Workshop discussed how the traditional approach to individual property rights prevailing in many developing countries, typical of classical liberalism, has long favored economic exchange values to the total detriment of the principle of the social function of property. Many significant attempts at promoting land use planning and control, including the legal protection of the environment and historical-cultural heritage, have been undermined by a dominant judicial interpretation that significantly reduces the scope for state intervention in the domain of individual property rights. Attempts to promote land regularization have also been frequently opposed by both landowners and conservative courts, even in situations where the land occupation has been consolidated for a long time.

Whereas the excessive, speculative hoarding of privately owned urban land has been tacitly encouraged, the effective implementation of a long-claimed social housing policy has been rendered more difficult due to the need to compensate the owners of vacant land at full market prices. In many countries, the individual property rights system inherited as a result of colonial rule often fails to take into account traditional customary values in the definition of property rights. Since these countries have largely failed to reform the foundations of legal-political liberalism, the discussion of so-called neo-liberalism is a false question in this context.

The Workshop participants placed special emphasis on the legal-political conditions for the recognition of security of tenure. It was noted that agents as diverse as social movements, NGOs and international finance organizations have increasingly made use of different though complementary humanitarian, ethical, sociopolitical and, more recently, economic arguments to justify the need to adopt public policies on this matter. Legal arguments also need to be adopted, including long-standing provisions of international law and the fundamental principles of the rule of law concerning housing and human rights, so that a new, socially oriented and environmentally friendly approach to property rights is recognized.

Much of the discussion focused on whether security of tenure can only and/or necessarily be achieved through the recognition of individual property rights. In fact, the analysis of several experiences suggested that the mere attribution of property rights does not entail, per se, the achievement of the main goal of most regularization programs-that is, the full integration of illegal areas and communities into the broader urban structure and society. The general consensus was that a wide range of legal-political options should be considered, from the transfer of individual ownership to some forms of leasehold and/or rent control to more innovative forms, still unexplored, of collective ownership or occupation with varying degrees of state control.

It was argued that the recognition of urban land tenure rights has to take place within the broader, integrated and multi-sectoral scope of city (and land use) planning, and not as an isolated policy, to prevent distortions in the land market and thus minimize the risk of evicting the traditional occupants. Examples from case studies in Brazil, India and South Africa have shown that, whatever the solution adopted in a particular case, it will only work properly if it is the result of a democratic and transparent decision-making process that effectively incorporates the affected communities.

Above all, it was accepted that the redefinition of property rights, and therefore the recognition of security of tenure, needs to be promoted within a broader context in which urban reform and law reform are reconciled. Law reform is a direct function of urban governance. It requires new strategies of urban management based upon new relations between the state (especially at the local level) and society; renewed intergovernmental relations; and the adoption of new forms of partnership between the public and the private sectors within a clearly defined legal-political framework.

Law reform fundamentally requires the renovation of the overall decision-making process to combine traditional mechanisms of representative democracy and new forms of direct participation. Indeed, many municipalities in several countries have recently introduced new mechanisms to allow the participation of urban dwellers in several stages of the decision-making process affecting urban management. Examples are at the executive level through the creation of committees, commissions, etc., or the legislative level through popular referendums or by recognizing individual and/or collective initiatives in the law-making process, as well as the formulation of popular amendments to proposed bills. A most interesting and promising experience is that of the “participatory budgeting” adopted in several Brazilian cities, in which community-based organizations participate in the formulation of the local investment budgets.

Finally, the need to promote a comprehensive legal reform and judicial review can no longer be neglected, especially in order to promote the recognition of collective rights, to broaden collective access to courts and to guarantee law enforcement. India and Brazil, for instance, have already incorporated the notion of collective rights in their legal systems to some extent, thus enabling the judicial defense of so-called “diffuse interests” in environmental and urban matters by both individuals and NGOs.

In other words, urban reform and the recognition of security of tenure are not to be attained merely through law, but through a political process that supports the recognition of the long-claimed “right to the city” not only as a political notion, but as a legal one, too. There is a fundamental role to be played in this process by lawyers, judges and prosecutors for the government. However, the collective action of NGOs, social movements, national and international organizations, and individuals within and without the state apparatus is of utmost importance to guarantee both the enactment of socially oriented laws and, more importantly, their enforcement.

If these are truly democratic times, the age of rights has to be also the age of the enforcement of rights, and especially of collective rights. It is only through a participatory process that law can become an important political arena to promote spatial integration, social justice and sustainable development.

Edesio Fernandes is a lawyer and a research fellow at the Institute of Commonwealth Studies of the University of London. He is coordinator of IRGLUS-International Research Group on Law and Urban Space and coeditor (with Ann Varley) of Illegal Cities: Law and Urban Change in Developing Countries (Zed Books, London and New York, 1998).