Property Rights and Environmental Protection: Is this Land made for You and Me?

The question that I attempt to answer is whether we can provide a robust theory of private property rights that accounts for our responsibility to the social and natural community. Are we either stuck with the following dichotomy: either preserving absolute property rights without consideration for community interests, the interests of future generations, the environment itself or give up property rights as we know them and turn over to the state control of land and natural resources reminiscent of feudal times? This is the dilemma that the property rights absolutists would have us believe we are confronted with. I will argue for a conception of property ownership in land and natural resources that carries with it responsibility to the present community and future community of persons that is informed by a land ethic. What stands in the way of the reinterpretation of property in light of environmental concerns is what I call the "absolutist view of property rights" which is noticeably privileged in many land use discussions. Absolute property rights include exclusive use, disposition, and full alienability. Those conditions are assumed to be self-evident. Even many recent Supreme Court decisions reflect this attitude about private property. This strand of thinking about property rights stretches back in the common law and is epitomized by Blackstone's famous statement wherein he claimed that "so great moreover is the regard of the law for private property that it will not authorize the least violation of it; no, not even for the good of the whole community." Property on this view defines and circumscribes the private realm within which individuals may pursue their own plans and satisfy their own preferences. Nevertheless, we also have within our tradition of property ownership the view that property rights are social conventions serving particular social goals, not exclusively aimed at individual preference satisfaction. They are thus instrumentally important to achieve important social interests. Those interests can be public or political ones, such as democracy's interest having an independent citizenry, and they can be individual interests, for example, individual's interest in moral development and self-determination. Property exists within a social and political context and is dependent on that context for its form and existence. There is plenty of historical support for this conception of property within the Anglo-American legal system. The question becomes why should we conceptualize property in one way rather than another. With other important rights such as speech, association, religion, and privacy, it is appropriate to ask about their justification and about their nature, scope, and limits. What interests each right protects is the important first step toward understanding its nature and justification. So too, with property rights we want to know what interests are supported by these different conceptions of property rights. I first consider the arguments that property rights absolutists rely upon to justify their conception of property rights. Secondly, I consider the interests that are supported by arguments for other widely held views about property rights. And, third and finally, I develop an account of property rights that conceptualizes owners of property as having responsibilities to the community present and future, and to the environment. I hope to show that there is a way to recognize the importance of property rights within a liberal democratic society and yet preserve the important interests of the community in how land and natural resources are used.