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Abstract:
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"Property as a concept has become loaded down with a heavy freight of political and ideological baggage. This can be redressed by returning to earlier foundations such as the metaphor of 'property as a bundle of rights', which while useful, has rarely been used consistently. We demonstrate how to take the 'bundle of rights' seriously in order to capture the different roles that property may play, as well as the complexities and manifold variations of property in different societies and in different periods of history. We also incorporate the several distinct analytical layers at which property manifests itself, in ideologies, in legal systems, in actual social relationships, in social practices, and pay attention to the interrelations between these phenomena. What property is at these different layers may vary significantly and this variability cannot be reduced by collapsing one layer into another. Finally, we think it vital to address the fact that many contemporary states have a plurality of property ideologies and legal institutions, often rooted in different sources of legitimacy, including local or traditional law, the official legal system of the state, international and transnational law, and religious legal orders.
"In what follows, we illustrate the importance of such an analytical framework for more accurate descriptions of the way property operates in the real world. These empirical descriptions in turn are a precondition for theorizing about the place of property under conditions of social, economic and ecological change. While policy advice is not one of our objectives here, many studies have shown how past policies centered on the desirability of highly theoretical property regimes have failed. And given the recent developments alluded to earlier, we see the need for an analytically rigorous framework if such costly failures are not to be repeated. With technological and bio-physical innovations, and with increasing government involvement in managing productive resources, new valuables have been created that were unthinkable until recently. These new properties raise new political, legal and ethical questions, and generate new conflicts. More importantly, they stretch the bounds of property categories, allowing us to study property concepts as they transform. This is particularly useful to order to counter the widespread tendency to think of property in terms of universal types (private, state, communal, open access) that are supposedly found widely distributed across space and time. As we will show, one of the strengths of our analytical framework is in investigating to what extent these new properties are indeed new and whether they force us to rework our property categories.
"In the following section of this paper we turn to the property freight we wish to unpack, including the ways that different disciplines have theorized property, and the interactions between disciplines that have continued to add to the theoretical baggage. Some of this baggage is well worth retaining, while much should be jettisoned. We then go on in subsequent sections to outline and illustrate the elements of our analytical framework before returning at last to the issue of new (and old) forms of property."
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