Does Sustainability Require a New Theory of Property Rights?

Abstract

By demanding stewardship of natural capital over exploitation, sustainability envisions a property regime less committed to individual property rights than are the traditional and economic theories of property. While the traditional property theories of Blackstone, Locke, and U.S. constitutional doctrine tolerate restrictions on private property rights for the sake of public welfare, they resist the strongest versions of sustainability, which promote generational and social justice. Similarly, an economic analysis of property recognizes the values of resource conservation and welfare for future generations, but only to the limited extent the economist can calculate future value. As a result, economic analysis may overlook or undervalue the interests of remote generations. Moreover, the goal of a more egalitarian distribution of resources, which informs the social justice model of sustainability theory, runs counter to the dominant economic analysis of property. Only relational principles at the fringes of property theory in the United States can fully embrace the strongest versions of sustainability. Thus, absent an unlikely theoretical revolution in the U.S., the sustainable development agenda cannot succeed in this country at the level required by the international community. Forthcoming in The Kansas Law Review, vol. 58, no. 1 (2009)