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The resource management complications posed by “Temporal Commons”– the common pool of time shared by present and future generations when making resource management decisions – are understudied in the literature. This chapter attempts to briefly describe their nature, before detailing how the typical solutions to the tragedy of the commons – private property, government regulation, and Elinor Ostrom’s successful collective action model – fail to adequately account for temporal commons. Next, the chapter explores some factors that distinguish temporal commons from traditionally studied commons, making them subject to a potentially more inevitable form of tragedy. The chapter concludes with initial thoughts on avenues for better addressing the dilemmas created by temporal commons.
This chapter addresses the history of chinampas, agriculture, and the rise of rural estates known as haciendas. It examines the construction, cultivation, and distribution of chinampas as well as the dispersed pattern of landholdings and the complexities of land tenure. The chapter observes the conspicuous absence of Spaniards and other non-Native peoples as the owners of chinampas. The chinampas became a source of contestation within the indigenous community, though, since claims of the communal, usufruct rights to chinampas rubbed up against efforts by the nobility to shore up their holdings through private ownership. In the sixteenth century, demographic decline and the competing demands of the colonial government, anxious about provisioning Mexico City during periods of food insecurity, forced a restructuring of land tenure classifications. At the same time, Spaniards received grants to establish ranches away in the nearby hills where they and Nahuas introduced livestock. As a consequence of all this, a distinctive historical geography came into being, with chinampas and intensive, small-scale horticulture in the lakes, and extensive pastoralism in the upland areas.
Over the last century, many philosophers have argued in favour of a liberal-egalitarian accommodation of capitalism, in which the liberty of the market is to be combined with an egalitarian distribution of property. Theorists of positive freedom, amongst others, have been prominent in arguing for the liberal-egalitarian accommodation. They have argued that an egalitarian distribution of private property is necessary to give every citizen equal positive freedom. To lead an autonomous life, every citizen needs control over some private property. The liberal-egalitarian accommodation to capitalism has come under threat in the last decades, as documented by a renewed widening of inequalities in wealth and income. In this essay, I will argue that this predicament requires us to look at one important precondition of the positive freedom argument. This precondition I call the de-politization of private property. Private property is conceived of as a purely private phenomenon, which has no effects on the exercise of political power. However, whether this precondition is met is a contingent matter; and so defenders of the positive freedom argument therefore need to turn their attention to the problem posed by the relation between private property and political power.
This chapter deals again with the influence of law on philosophy, now with regard to a substantive issue. Under the influence of the Roman jurists, for whom private property was an important topic, the ‘Roman’ Stoics followed suit, and awarded private property a novel, central place in thinking about justice, a place which would have a decisive influence on modern, Western political thought.
The middle of the second until the middle of the first century BCE is one of the most creative periods in the history of human thought, and an important part of this was the interaction between Roman jurists and Hellenistic philosophers. In this highly original book, René Brouwer shows how jurists transformed the study of law into a science with the help of philosophical methods and concepts, such as division, rules and persons, and also how philosophers came to share the jurists' preoccupations with cases and private property. The relevance of this cross-fertilization for present-day law and philosophy cannot be overestimated: in law, its legacy includes the academic study of law and the Western models of dispute resolution, while in philosophy, the method of casuistry and the concept of just property.
This book explores how the Permanent Court of International Justice, the International Court of Justice, the European Court of Human Rights, and investment treaty tribunals have used deference to recognise the decision making authority of States. It analyses the approaches to deference taken by these four international courts and tribunals in 1,714 decisions produced between 1924 and 2019 concerning alleged State interferences with private property. The book identifies a large number of techniques capable of achieving deference to domestic decision-making in international adjudication. It groups these techniques to identify seven distinct 'modes' of deference reflecting differently structured relationships between international adjudicators and domestic decision-makers. These differing approaches to deference are shown to hold systemic significance. They reveal the shifting nature and structure of adjudication under international law and its relationship to domestic decision making authority.
This Chapter introduces the focus of the work. It explains that international adjudication has come under increasing criticism and backlash in recent years, and links this to long-lasting debates about the proper reach of international law and adjudication. The Chapter explains that adjudicative deference to States has been frequently identified as a possible option to respond to these concerns. The Chapter thereafter connects deference to debates about State sovereignty and autonomous decision-making authority. It introduces the structure of the book and identifies the key audiences and benefits to which it is directed, as well as how it differs from existing scholarship on deference in international adjudication.
This chapter draws together the preceding conceptual and empirical analysis of deference in international adjudication to explore how the principles discussed in the preceding pages might be used to inform approaches to deference in practice. This chapter does not develop a prescriptive approach to deference in international adjudication. It instead offers a framework to inform the analysis of deference in international adjudication. Section 10.1 addresses debates as to whether international adjudicative deference to domestic decision makers is desirable at all. Section 10.2 examines whether approaches to deference should be ‘fixed’ in favour of some doctrinal approaches over others. Section 10.3 explores how a framework for analysing deference might be created, which allows evolution and malleability in approaches to deference while securing some level of predictability and transparency in practice. Section 10.4 concludes.
This Chapter concludes the book. It notes that the book has identified the structures of deference in international adjudication and the implications of deference for adjudication under public international law. It has developed a conceptual framework for understanding deference, to demonstrate that different modes of deference disclose differing approaches to dividing authority between domestic and international decision makers. The study has also linked deference to several fundamental debates about the relationship between public international law and domestic law, and between private property rights and State interests. Pursuing these lines of analysis, the book used deference to tell a story of international law, with international private property claims providing a useful setting for this story. By analysing approaches to deference in the private property cases of adjudicators in four such regimes, the study revealed the relationship between deference, State sovereignty, and power in international adjudication. It further identified how international adjudicators use deference to manage continuity and change, and to settle conflicting claims to authority.
This book investigates how deference is structured in individual cases, and whether the treatment of deference differs by regime or over time. Adjudicative decisions thus form the focus of this study. This focus, however, necessarily entails treating adjudicative decisions as a meaningful source of data. Legal (doctrinal) and social sciences (empirical) research methods provide two competing methodologies through which such a study might be conducted. Chapter 3 introduces the theory and methodology underpinning the empirical study reported in Part II. It presents a theory of international adjudication and explains how an empirical study of adjudicative reasoning can remain ‘internal’ to the discipline of law despite borrowing methodological techniques and theories from ‘external’ disciplines. It explores the relative strengths and weaknesses of empirical and doctrinal approaches, and examines how adjudicative decisions can remain a meaningful source of legal data when analysed using an empirical methodology drawn from non-legal disciplines. It further outlines the methods used to identify deference in the private property decisions of the selected courts and tribunals.
Chapter 2 introduces the focus and approach of the study. Existing studies of deference have focussed upon specific approaches to deference adopted by particular international courts or tribunals. This book instead studies deference comparatively, to explore its systemic implications in international adjudication. The study is based upon a relatively homogenous group of cases from four international courts and tribunals. The empirical study of deference in this setting is designed to capture approaches to deference present in a subset of international cases. Property disputes were selected as the focus of this study because property has been a subject of long-term protection under international law, and property disputes are litigated in a range of international regimes. This opens up the possibility for temporal and cross institutional study. This Chapter introduces the setting for the study. It introduces private property obligations under international law, and the adjudicative regimes selected for detailed study, identifying the elements of unity and plurality that make these courts and tribunals a particularly fruitful focus for the comparative study.
This chapter concentrates on the early months of the war, and delving into autobiographical testimonies looks more closely at the suffering and fate of enemy aliens. The chapter then describes the implementation of the policies adopted in the early months and deals with expulsion, forced repatriation and deportation. It then addresses the internment of civilians, which was one of the major novelties that the belligerent countries introduced in the European war. The chapter follows the spread of concentration camps throughout Europe and the British and French Empires, the internment gender and generational dimensions, and the beginning of the humanitarian activities that the mass internment of enemy aliens triggered. The third part of the chapter deals with another crucial novelty that concerned the property rights of the enemy aliens. States at war sequestered and confiscated their assets as part and parcel of the economic war they waged. The internment and sequestration of enemy property led to enormous growth in the apparatuses of the state. And this meant that state involvement in the lives of civilians increased disproportionately.
This chapter follows the globalization and radicalization of the policies on enemy aliens that occurred in the last two years of the war. In 1917, the conflict became truly global with the entrance of the Americas (the United States, Brazil and Cuba) and Asia (the independent states of China and Siam, and the Philippines as a US dependency). At the same time, Russia and Romania exited the conflict, signing disadvantageous peace agreements with Germany. All the states that joined the war in 1917 drew up policies against enemy aliens, notwithstanding the enormous differences in the numbers of such people within their territories. The chapter analyzes the policies against enemy aliens in the United States, in Brazil, in China and Siam, and compares them with the evolution of the war in Europe where radicalization transformed all foreigners into enemies and also affected neutral countries. The chapter concentrates in particular on a series of new developments that concerned property rights. On the eve of the end of the conflict, property rights were no longer safe in any of the belligerent countries and were actually in pieces in many places.
Chapter three examines Egypt’s embrace of a neoliberal policy paradigm through the adoption of a comprehensive package of structural adjustment policies proposed by the International Monetary Fund (IMF) in the early 1990s. This neoliberal shift was a gradual process that was contested by the conservative faction within the ruling National Democratic Party who were primarily concerned with the preservation of social order. Over the course of the 1990s and 2000s, an ideologically committed neoliberal faction, aligned with transnational capital, emerged within the party and was able to establish its hegemony and form government in 2004. Under this ‘government of businessmen’, the implementation of the neoliberal agenda was accelerated by means of an increasingly disciplinary state expropriating customary and public property and enforcing capitalist property rights, resulting in rising income inequality and growing popular discontent.
Land ownership and the rights in property are central to the American character, having originated as part of the colonial dialogue that led to the American revolution. Yet there has also been substantial social conflict over who has claims to property, and in whose interest. This article presents an interpretive history of citizenship claims to land and property from the colonial period to the present. It argues that a theme in this history is an ever expanding realm of citizenship claims against the individual owner, most markedly since the beginning of the twentieth century. The emergence of the modern environmental movement and a counter so-called private property rights movement in the 1970s forward has accentuated this social conflict. The future likely holds increased conflict in an era of social and political polarisation. The outcome is uncertain, and will depend on democratic dialogue among those with strongly opposing perspectives.
In this chapter I seek to show that in On the Citizen Hobbes completes a conceptually coherent defense of despotic sovereignty, in a manner not previously appreciated. I will do so by presenting a novel reading of Hobbes’s treatment of the nature of property. I will suggest that ownership consists in having preeminent power with a natural right to exercise that power. On that basis, I shall argue, Hobbes is entitled to conclude that sovereigns, by virtue of their sovereignty, necessarily and fully own their subjects and all they possess. Sovereigns own their subjects and everything they possess because they rule over them with preeminent power and (at a minimum) a natural right to exercise that power. On the Citizen thus contains a philosophically coherent account of why all sovereignty is necessarily despotic. Perhaps even more importantly, it provides him access to a very powerful, but profoundly illiberal, argument against the existence of property titles of citizens against their sovereign: it is a conceptual truth, on Hobbes’s conception of property, that the sovereign owns everything in the commonwealth that can be owned.
In the early 2000s the Holy See submitted papers to the WIPO and the WTO, on the subject of Intellectual Property (IP) rights, genetic resources, traditional knowledge, and access to medicines. This chapter develops some concepts that are mainly implicit in those papers. Catholic Social Teaching does not address directly the subject of IP rights, but contains all the elements for a moral judgment on the present system of IP rights. The chapter develops the discussion in three parts: first, some ideas about private property and the universal destination of goods, and the right to knowledge; second, proposing a vision of IP rights in the light of the aforesaid principles about property in Catholic Social Teaching; third, examining the issue of IP rights in relation to the rights of native peoples. The essay concludes by arguing that, to ensure that patents serve the universal destination of goods and the common good, a new legal theory should be developed in this area. This would reconsider, especially, rules relating to the public availability of the invention, the right price of the licenses, possible exceptions to the patent, means of technological transfer, and the creation of alternative means of industrial knowledge protection.
The second chapter investigates changes in land tenure and the organization of labor in the Early Roman period. It shows that land tenancy was not an imperial imposition, but had instead existed in some form in the Levant since at least the Iron Age. In the Early Roman period, however, elites attained greater protections for private property and were thus able to accumulate and convey large estates consisting of a number of geographically discontinuous plots. Tenants and laborers were no more exploited working for their elite patrons on private estates than they had been working on royal estates in earlier eras, but they did enter into new socioeconomic relations with elites. Tenants and wage laborers could occupy a range of socioeconomic positions and managed to secure a modicum of bargaining power in making contracts with landowners. As in earlier eras, drought and crop failure sometimes impeded the success of agricultural laborers. As a result, these laborers often became indebted to their landowners or other elite patrons.