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Property, Power and Politics: Why We Need to Rethink the World Power System
by Jean-Philippe RobéGlobalization is an extraordinary phenomenon affecting virtually everything in our lives. And it is imperative that we understand the operation of economic power in a globalized world if we are to address the most challenging issues our world is facing today, from climate change to world hunger and poverty. This revolutionary work rethinks globalization as a power system feeding from, and in competition with, the state system. Cutting across disciplines of law, politics and economics, it explores how multinational enterprises morphed into world political organisations with global reach and power, but without the corresponding responsibilities. In illuminating how the concentration of property rights within corporations has led to the rejection of democracy as an ineffective system of government and to the rise in inequality, Robé offers a clear pathway to a fairer and more sustainable power system.
Property, Predation, and Protection
by Stanislav MarkusWhat threatens the property rights of business owners - and what makes these rights secure? This book transcends the conventional diagnosis of the issue in modern developing countries by moving beyond expropriation by the state ruler or by petty bureaucratic corruption. It identifies "agent predation" as a novel threat type, showing it to be particularly widespread and detrimental. The book also questions the orthodox prescription: institutionalized state commitment cannot secure property rights against agent predation. Instead, this volume argues that business actors can hold the predatory state agents accountable through firm-level alliances with foreign actors, labor, and local communities. Beyond securing ownership, such alliances promote rule of law in a rent-seeking society. Taking Russia and Ukraine between 2000 and 2012 as its empirical focus, the book advances these arguments by drawing on more than 150 qualitative interviews with business owners, policy makers, and bureaucrats, as well as an original large-N survey of firms.
Property Rights: Philosophic Foundations (Routledge Revivals)
by Lawrence C. BeckerProperty Rights: Philosophic Foundations, first published in 1977, comprehensively examines the general justifications for systems of private property rights, and discusses with great clarity the major arguments as to the rights and responsibilities of property ownership. In particular, the arguments that hold that there are natural rights derived from first occupancy, labour, utility, liberty and virtue are considered, as are the standard anti-property arguments based on disutility, virtue and inequality, and the belief that justice in distribution must take precedence over private ownership. Lawrence Becker goes on to contend that there are four sound lines of argument for private property that, together with what is sound in the anti-property arguments, must be co-ordinated to form the foundations of a new theory. He therefore expounds a concise but sophisticated theory of property that is relevant to the modern world, and concludes by indicating some of the implications of his theory.
Property Rights: The Argument for Privatization (Palgrave Studies in Classical Liberalism)
by Walter E. BlockIn this timely book, Walter E. Block uses classical liberal theory to defend private property rights. Looking at how free enterprise, capitalism and libertarianism are cornerstones of economically prosperous civilizations, Block highlights why private property rights are crucial. Discussing philosophy, libertarian property rights theory, reparations and other property rights issues, this volume is of interest to academics, students, journalists and all those interested in this integral aspect of political economic philosophy.
Property Rights: From Magna Carta to the Fourteenth Amendment
by Bernard SieganProperty Rights: From Magna Carta to the Fourteenth Amendment breaks new ground in our understanding of the genesis of property rights in the United States. According to the standard interpretation, echoed by as lofty an authority as Supreme Court Justice Harry Blackmun, the courts did little in the way of protecting property rights in the early years of our nation. Not only does Siegan find this accepted teaching erroneous, but he finds post-Colonial jurisprudence to be firmly rooted in English common law and the writings of its most revered interpreters. Siegan conducts an exhaustive examination of property rights cases decided by state courts between the time of the ratification of the U.S. Constitution in 1788 and the adoption of the Fourteenth Amendment in 1868. This inventory, which in its sweep captures scores of cases overlooked by previous commentators on the history of property rights, reveals that the protection of these rights is neither a relatively new phenomenon nor a heritage with precarious pedigree. These court cases, as well as early state constitutions, consistently and repeatedly embraced key elements of a property rights jurisprudence, such as protection of the privileges and immunities of citizens, due process of law, equal protection under the law, and prohibitions on the taking of property without just compensation. Case law provides overwhelming evidence that the American legal system, from its inception, has held property rights and their protection in the highest regard.The American Revolution, Siegan reminds us, was fought largely to affirm and protect private property rights-that is, to uphold the "rights of Englishmen"-even if it meant that the colonists would cease being Englishmen. John Locke and other great theoreticians of property rights understood their importance, not only to individuals who happened to possess property, but to the preservation of a free society and to the prosperity of its inhabitants. Siegan's contribution to this venerable tradition lies in his faithful reconstruction of our legal history, which allows us to see just how central property rights have been to the American experiment in liberty-from the very beginning.
Property Rights and Climate Change: Land use under changing environmental conditions (Routledge Complex Real Property Rights Series)
by Fennie Van Straalen Thomas Hartmann John SheehanProperty Rights and Climate Change explores the multifarious relationships between different types of climate-driven environmental changes and property rights. This original contribution to the literature examines such climate changes through the lens of property rights, rather than through the lens of land use planning. The inherent assumption pursued is that the different types of environmental changes, with their particular effects and impact on land use, share common issues regarding the relation between the social construction of land via property rights and the dynamics of a changing environment. Making these common issues explicit and discussing the different approaches to them is the central objective of this book. Through examining a variety of cases from the Arctic to the Australian coast, the contributors take a transdisciplinary look at the winners and losers of climate change, discuss approaches to dealing with changing environmental conditions, and stimulate pathways for further research. This book is essential reading for lawyers, planners, property rights experts and environmentalists.
Property Rights and Eminent Domain
by Ellen Frankel PaulIn a country built on the institution of private property, property-owner rights have been under attack. By arguing that private property is a fundamental liberty whose protection deserves the highest priority, Ellen Frankel Paul challenges one of the dominant trends of the past half century: the erosion of property rights via zoning and land use restrictions, carried on by government exercising its "police power" or promoting "the public interest." Paul begins by examining the arguments of environmentalists in support of land-use legislation, and explores a few particularly troubling examples of the exercise of eminent domain and police powers. She traces the philosophical arguments for the two powers as well as their tortuous judicial history, the meaning of property rights and investigates how previous thinkers have defended these rights is detailed, and Paul suggests a more adequate defense for them. In the concluding portion of the book, the very legitimacy of eminent domain is questioned and the author offers recommendations for its reform. This analysis is wide in scope and makes creative use of historical, legal, economic, and philosophic methodologies. It not only gives an account of the present power regulations on land, but also provides an exhaustive history of the development of the law in these two areas and of the philosophical ideas of the thinkers who helped shape this process. This book is distinctive because it places a theory of the just acquisition of property at the heart of the answer to the question of the extent to which governments can rightfully exercise the powers of eminent domain and police. "Amazingly, in a country built on the institution of private property, the right to property in land has been under increasing assault, and has seldom been defended. Paul's book--by arguing that private property is a fundamental liberty whose protection deserves the highest priority--is a major step toward filling the void."--Robert Hessen, Stanford University
Property Rights and Neoliberalism: Cultural Demands and Legal Actions (Law, Property and Society)
by Laura J. HatcherProperty rights and efforts to curb state appropriation of private properties for public purposes have always held high status on the political agenda of the US and many other nations that feature a corporate capitalist economic system. In addition to this, over the last several decades conservative libertarian and neo-liberal groups have put constitutional demands for greater property protection on the agendas of courts in several countries. Studying property rights mobilization in both domestic and comparative contexts, the contributors to this volume bring a range of social science perspectives to address three primary issues: the contours and characteristics of property rights mobilizations; the degree to which property rights movements have influenced development of law in demonstrable ways; and the broader cultural, social and economic implications of modern-era property rights litigation and legal mobilizations. This will be a key text for anyone working within or interested in property rights.
Property Rights and Social Justice: Progressive Property in Action (Cambridge Studies in Constitutional Law)
by Rachael WalshProperty Rights and Social Justice analyses 'progressive property' in action by examining the role of constitutional property rights guarantees in mediating private ownership and social justice. It combines insights from property theory with enlightening doctrinal analysis of the interaction between property rights and social justice in the constitutional and broader legal context. It does so through the prism of the Irish Constitution's property guarantees, which uniquely in the English-speaking, common law world both protect property rights and requires their regulation by the State to secure social justice. Through this analysis, the book grounds key debates in contemporary property theory in fresh, illuminating doctrinal examples, and enhances global debates about the constitutional protection of property rights. It argues that primacy is perhaps inevitably afforded to political determinations about the appropriate mediation of property rights and social justice, meaning that the political impact of constitutionalisation needs to be disentangled from its strict legal effects.
Property Rights from Below: Commodification of Land and the Counter-Movement (Routledge Complex Real Property Rights Series)
by Olivier De Schutter Balakrishnan RajagopalRecent years have seen a globalization of property rights as the Western conception of property over land has extended across the world. As formerly community-owned land and natural resources are privatized and titling schemes proliferate, Property Rights from Below questions the trend toward treating land as a commodity and explores alternatives to the Western model. As we enter an era of resource scarcity and as competition for land and associated natural resources increases, purchasing power cannot become the sole criterion for land allocation; and the law of supply and demand in increasingly financialized markets cannot become the sole metric through which the value of land is determined. Using a range of examples from around the world, Property Rights from Below demonstrates that alternatives to this model often emerge from social innovations supported by local communities and that there is an urgent need for a broader political imagination when it comes to land governance. This innovative cross-disciplinary perspective on the pressing problems surrounding global property rights will be of interest to academics, students and professionals with an interest in property law, development economics and land governance.
Property Rights In Post-soviet Russia: Violence, Corruption, and the Demand for Law
by Jordan Gans-MorseThe effectiveness of property rights - and the rule of law more broadly - is often depicted as depending primarily on rulers' 'supply' of legal institutions. Yet the crucial importance of private sector “demand” for law is frequently overlooked. This book develops a novel framework that unpacks the demand for law in Russia, building on an original enterprise survey as well as extensive interviews with lawyers, firms, and private security agencies. By tracing the evolution of firms' reliance on violence, corruption, and law over the two decades following the Soviet Union's collapse, the book clarifies why firms in various contexts may turn to law for property rights protection, even if legal institutions remain ineffective or corrupt. The author's detailed demand-side analysis of property rights draws attention to the extensive role that law plays in the Russian business world, contrary to frequent depictions of Russia as lawless.
The Property Rights of Refugees and Internally Displaced Persons: Beyond Restitution
by Anneke SmitThe Property Rights of Refugees and Internally Displaced Persons: Beyond Restitution pursues a rigorous examination of the various ways in which the protection of housing and property rights can contribute to durable solutions to displacement.
Property Rites: The Rhinelander Trial, Passing, and the Protection of Whiteness
by Elizabeth M. Smith-PryorIn 1925 Leonard Rhinelander, the youngest son of a wealthy New York society family, sued to end his marriage to Alice Jones, a former domestic servant and the daughter of a "colored" cabman. After being married only one month, Rhinelander pressed for the dissolution of his marriage on the grounds that his wife had lied to him about her racial background. The subsequent marital annulment trial became a massive public spectacle, not only in New York but across the nation--despite the fact that the state had never outlawed interracial marriage. Elizabeth Smith-Pryor makes extensive use of trial transcripts, in addition to contemporary newspaper coverage and archival sources, to explore why Leonard Rhinelander was allowed his day in court. She moves fluidly between legal history, a day-by-day narrative of the trial itself, and analyses of the trial's place in the culture of the 1920s North to show how notions of race, property, and the law were--and are--inextricably intertwined.
Property Theory: Legal and Political Perspectives
by James Penner Michael OtsukaProperty, or property rights, remains one of the most central elements in moral, legal, and political thought. It figures centrally in the work of figures as various as Grotius, Locke, Hume, Smith, Hegel and Kant. This collection of essays brings fresh perspective on property theory, from both legal and political theoretical perspectives, and is essential reading for anyone interested in the nature of property. Edited by two of the world's leading theorists of property, James Penner and Michael Otsuka, this volume brings together essays which consider, amongst other topics, property and public law, the importance of legal forms in property theory, whether use or exclusion are most essential to our understanding of property, distributive justice, Lockean and Grotian theories, the common ownership of the Earth, and Confucian ideas of property.
The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court
by John Lawrence HillJohn Stuart Mill is the father of modern liberalism. His most remembered work, On Liberty, which was published in 1859, changed the course of the liberal tradition. What is less well-known is that his ideas have profoundly influenced the American constitutional rights tradition of the latter half of the twentieth century. Mill's 'harm principle' inspired the constitutional right to privacy recognized in Griswold v Connecticut, Roe vs Wade and other cases. His defense of freedom of expression influenced Justices Holmes, Brandeis, Douglas, Brennan and others and led to greatly expanded freedom of speech in the twentieth century. Finally, Mill was an ardent feminist whose last important work, The Subjection of Women, was a full-scale and, for its time, radical defense of complete gender equality. This is a book for lawyers who want to understand the intellectual origins of modern constitutional rights, and for political philosophers interested in the constitutional implications of Mill's conception of freedom.
Proportionality
by Aharon BarakHaving identified proportionality as the main tool for limiting constitutional rights, Aharon Barak explores its four components (proper purpose, rational connection, necessity and proportionality stricto sensu) and discusses the relationships between proportionality and reasonableness and between courts and legislation. He goes on to analyse the concept of deference and to consider the main arguments against the use of proportionality (incommensurability and irrationality). Alternatives to proportionality are compared and future developments of proportionality are suggested.
Proportionality and constitutional culture
by Moshe Cohen-Eliya Iddo PoratAlthough the most important constitutional doctrine worldwide, a thorough cultural and historical examination of proportionality has not taken place until now. This comparison of proportionality with its counterpart in American constitutional law – balancing – shows how culture and history can create deep differences in seemingly similar doctrines. Owing to its historical origin in Germany, proportionality carries to this day a pro-rights association, while the opposite is the case for balancing. In addition, European legal and political culture has shaped proportionality as intrinsic to the state's role in realizing shared values, while in the United States a suspicion-based legal and political culture has shaped balancing in more pragmatic and instrumental terms. Although many argue that the USA should converge on proportionality, the book shows that a complex web of cultural associations make it an unlikely prospect.
Proportionality and Judicial Activism
by Niels PetersenThe principle of proportionality is currently one of the most discussed topics in the field of comparative constitutional law. Many critics claim that courts use the proportionality test as an instrument of judicial self-empowerment. Proportionality and Judicial Activism tests this hypothesis empirically; it systematically and comparatively analyses the fundamental rights jurisprudence of the Canadian Supreme Court, the German Federal Constitutional Court and the South African Constitutional Court. The book shows that the proportionality test does give judges a considerable amount of discretion. However, this analytical openness does not necessarily lead to judicial activism. Instead, judges are faced with significant institutional constraints, as a result of which all three examined courts refrain from using proportionality for purposes of judicial activism.
Proportionality and the Rule of Law
by Grant Huscroft Bradley W. Miller Grégoire Webber Grant Huscroft Bradley W. MillerTo speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.
Proportionality and Transformation: Theory and Practice from Latin America (ASCL Studies in Comparative Law)
by Francisca Pou-Giménez Laura Clérico Esteban Restrepo-SaldarriagaThis is the first book on proportionality in Latin American constitutional law. Leading scholars in the region explore how proportionality analysis has become a key part of the constitutional law of a region where, almost paradoxically, constitutions with clear transformative intentions coexist with the highest indicators of social inequality in the world. In this book, scholars, practitioners and students will find a fascinating account of how proportionality has been a central concept in Latin America's constitutional struggles to curtail excessive uses of state power. The book illustrates how, more recently, proportionality has played an important role in national processes of constitutionalization and transitional justice, and how its current uses in the domain of social rights endow it with a distinctive meaning and role in regional constitutionalism. This pioneering book opens up the space for a much needed global conversation on how Latin America has decisively contributed to comparative constitutional law.
Proportionality, Balancing, and Rights: Robert Alexy's Theory of Constitutional Rights (Law and Philosophy Library #136)
by Jan-R. SieckmannThe book focuses on Robert Alexy’s theory of constitutional rights. Alexy systematically presented the theory in his seminal book “Theorie der Grundrechte” (1985; Engl. translation “Theory of Constitutional Rights, 2002) and continued to develop it in numerous subsequent articles. Arguably still the most influential theory of constitutional rights, it has found widespread academic support, as well as recognition in several constitutional jurisdictions. On the other hand, it has also been the object of considerable criticism. The aim of this book is to outline the central aspects of Alexy’s theory as he sees them, and to further develop the principles of constitutional, fundamental, and human rights by applying a constructive criticism of his theory.
Proportionality, Equality Laws, and Religion: Conflicts in England, Canada, and the USA (ICLARS Series on Law and Religion)
by Megan PearsonThis book considers how the law should manage conflicts between the right of religious freedom and that of non-discrimination on the grounds of sexual orientation. These disputes are often high-profile and frequently receive a lot of media attention and public debate. Starting from the basis that both these rights are valuable and worthy of protection, but that such disputes are often characterised by animosity, it contends that a proportionality analysis provides the best method for resolving these conflicts. The work takes a comparative approach, examining the law in England and Wales, Canada, and the USA and examines four main areas of law, considering how a proportionality approach could be used in each. The book will be an invaluable resource for students and researchers in the areas of Public Law, Human Rights Law, Law and Religion, Discrimination Law, and Comparative Law.
Proportionality in Asia
by Po Jen YapThis is the first book that focusses on how proportionality analysis – a legal transplant from the West – is applied by courts around Asia, and it explores how a country's commitment to democracy and the rule of law is fundamental to the success of the doctrine's judicial enforcement. This book will appeal to lawyers, political scientists, and students of law and political science who seek to understand how proportionality analysis is blossoming and, in some cases, flourishing in Asia.
Proportionality in International Humanitarian Law: Refocusing the Balance in Practice
by Jeroen van den BoogaardThis book seeks to clarify the legal concept of proportionality in international humanitarian law, as it applies during armed conflict. It is argued in the book that a refocus of the interpretation of the proportionality rule is warranted to enhance the protection of civilians. More precisely, this book seeks to dissect the origins of the rule, determine how its components must be interpreted and how it is to be applied in practice. The book considers practical situations that may arise in the conduct of military operations and searches for the limits international humanitarian law sets to commanders' assessments of proportionality during armed conflict. The book concludes that proportionality is an inherently subjective and imprecise yardstick that nonetheless serves to protect civilians during armed conflict.
Proportionality in Law: An Analytical Perspective
by David Duarte Jorge Silva SampaioThis book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. On the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour.