Private Property Rights Research Articles

An Egalitarian Case for Class-Specific Political Institutions

Political theorists concerned with ways to counteract the oligarchic tendencies of representative government have recently paid more attention to the employment of “class-specific institutions” (CSIs)—that is, political institutions that formally exclude wealthy elites from decision-making power. This article disputes a general objection levelled against the justifiability of CSIs, according to which their democratic credentials are outweighed by their explicit transgression of formal political equality—what I call the political equality objection. I claim that, although CSIs do not satisfy political equality fully, their exclusionary thrust is inter alia justified in virtue of the fact that they unfold against the background of badly ordered, class-divided societies. Parallel to recent arguments in nonideal theory arguing for the priority of the right to resist economic oppression over the protection of private property rights, access to the empowering properties of CSIs should take priority over the full satisfaction of formal political equality. Yet, I also claim that the justification of CSIs depends on their orientation toward overcoming class divisions because, otherwise, we might end up wrongly naturalizing those divisions—a conclusion that needs to be avoided to reply to the political equality objection. The result is, I believe, a convincing egalitarian case for the democratic justifiability of CSIs.

PROGNOSTICATION THE DYNAMICS OF THE DEVELOPMENT OF ORGANIZATIONAL AND TECHNOLOGICAL SYSTEMS

The article highlights an attempt to solve one of the most important problems of modern economic science – forecasting the creation and functioning of organizational and technological systems in domestic production. In the current military and economic conditions, the condition for the implementation of an innovative model of the development of the national economy through the functioning of organizational and technological systems in its industrial production is considered. The process of functioning of such systems consists of the continuous implementation of production cycles "money – technology – modern materials – production – sales". It is a feedback system and is described by differential equations. Non-linearity leads to the emergence of similar structures and their hierarchical construction. Since the capabilities of any organizational and technological system are limited, that is, the coupling coefficients between the output and input signals in the feedback system are proportional to the output signal, then the organizational and technological system is a nonlinear dynamic system. Such systems are described by nonlinear differential or iterative equations. It was determined that the potential income, that is, the income associated with the elimination of the monopoly of the organizational and technological system, and the real income in the free market are mutually complementary quantities (analogous to the potential and kinetic energy of a physical system). According to the principle of additionality, states in which such quantities had precisely certain values today been impossible. It follows from the above that the economy with hired labor and private property is relatively free, and the Western model cannot be considered as the only one when choosing the ways of economic development of the country. Such a model is an economy based on a market free from monopolies. It should be based on protected private property and democratic right of disposal – share-based personalized financial leasing (rent). And since nonlinear systems are characterized by cooperative behavior of their elements, it is conceivably to call this type of economy as a system of civilized cooperators, that is, market socialism.

Requisition as a ground for termination of property rights under conditions of martial law

The article is devoted to the study of the peculiarities of requisition under conditions of martial law. It is emphasized that despite the principle of inviolability of property rights, the possibility of forced alienation of property rights is enshrined at the legislative level.
 It was established that in order to determine the legality of interference with the right of private property through requisition, it is necessary to take into account the criteria of the three-fold test: the legality of the interference, public necessity and proportionality.
 The position of scientists who claim that the basis of requisition under martial law is the legal structure is supported. On the basis of the analysis of the legislative provisions, the main features inherent in requisitions are identified: is aimed at satisfying public interests; is carried out under the condition of occurrence or probability of occurrence of extraordinary circumstances; is conducted administratively, not judicially; a special entity authorized to make a decision on forced alienation; is the basis for the emergence of the right of state ownership and the termination of the right of private ownership; has a compensatory nature (preliminary or subsequent reimbursement of the cost); after the cessation of extraordinary circumstances, the former owner has the right to demand the return of requisitioned property, if it is preserved.
 It is emphasized that the requisition must be accompanied by clear documentation: to confirm the fact of forced alienation of property, an act is drawn up, an integral appendix to which is a document containing a conclusion on the value of the property. It was established that the moment of termination of the ownership right of the owner and its occurrence in the state is connected with the date of signing the act of forced alienation of property.
 It has been established that the object of requisition can be both individually determined property and property endowed with ancestral characteristics. Therefore, it is proposed to unify the provisions of the Law of Ukraine "On Transfer, Expropriation or Seizure of Property under the Legal Order of Martial Law or State of Emergency" with the provisions of the Civil Code of Ukraine. It is emphasized that despite the absence of a direct instruction in the Land Code of Ukraine, requisition is one of the reasons for the forced termination of ownership of land plots. It was concluded that requisition is the basis for terminating not only ownership rights, but also real rights to someone else's property.
 It was determined that the owner can challenge the assessment of requisitioned property by filing a claim for reimbursement of its value. The specifics of the return of property that was forcibly alienated against the will of the owner are disclosed.
 It was established that the dispute about the appeal of acts of forced alienation is a matter of private law, since there is an encroachment on a person's property right.

Gender Disparities in Land Rights a Myth or a Reality? Case studies of the situations in Kenya and Tanzania

<p><big>All things being equal, and in a truly democratic world, one will expect that the fact that women are the majority in almost every single community of the world should guarantee them at least equal control or ownership over resources and enjoy most of the rights and privileges in that particular community. But things seem not to be working that way as evidence from the literature shows that women are always relegated to the background when it comes to the issue of control or ownership over, and sometimes even access to property in most societies which include the right to own and use land. This undoubtedly has a consequence on the productive and overall development of such a community. In recent times, the issue of gender discrimination, disparities, and inequalities has attracted the attention of researchers over the past decade with enormous literature in this area. There are, however, few studies that provide a comparative analysis of the situation between two or more countries. This paper seeks to fill this void of knowledge based on a review of relevant literature on land rights with an emphasis on the situations in Kenya and Tanzania. The results have shown the prevalence of four types of land rights such as communal property rights, non or open-access property rights, state or crown property rights, and private property rights. The results have further indicated that the controversial land rights of Kenya have led to the reduction in the lands of certain groups of people, increasing land disputes, and also discriminating against women in their land rights. In the case of Tanzania, there were several cases of bias against women concerning the ownership of land, especially under the customary system of Tanzania. Issues of discrimination against women were also identified in the inheritance laws of the land which is a paramount feature within the norms and cultures of the people of Tanzania. The lack of equal access to land by women in both countries is found to harm productivity in several sectors of their economies, especially in agriculture. Policymakers are therefore admonished to ensure equal access by both genders to land as this will lead to efficiency in the management and usage of land which is certainly good for sustainability in the development of any economy.</big></p>

Built Heritage Management Systems: Australia and Germany Compared

A recent, unreported, focus group of international heritage practitioners from academia, urban planning, land use management and urban design, found interesting similarities and differences between Australian and German cultural built heritage (CBH) management systems. For validation, a literature review provided a methodological framework and is reported in this paper. Its objective is to confirm the principal themes elicited by the initial work, being: assessment standards, transferable development rights, heritage conservation incentives and private property rights’ management thereby contributing enhanced clarity to the broader relationship between built heritage and stakeholder roles in heritage conservation. This paper is a precursor of more detailed planned empirical, in-country study seeking further insights into stakeholder interests and value systems based on a recent developed analytical approach known as Cultural Heritage Discourse (CHD). It is recognised that this empirical component is a limiting feature of the current research but anticipated as inevitable due to the preliminary stage of enquiry. Keywords: Conservation of built heritage; cultural heritage discourse; heritage management systems; transferable development rights; Germany and Australia

THE SOCIO-ECONOMIC ROLE OF LOCAL GOVERNMENTS IN THE FIELD OF GUARDIANSHIP AND CONSERVATORSHIP OF ADULTS IN UKRAINE

Based on the content of Article 55 of the Civil Code of Ukraine, the task of guardianship and conservatorship of adult incapacitated persons and persons with limited legal capacity – is to ensure the personal non-property and property rights and interests of such persons, and as practice shows, there are currently a significant number of problems. The relevant problems are, inter alia, of a social and economic nature and affect a large number of subjects, with a special role being assigned to local self-government bodies, whose executive bodies, according to the definition of Ukrainian legislation, are guardianship and conservatorship bodies. This problem has a significant negative impact on the quality of life of adults in need of care and assistance, as well as on the exercise of relevant powers by local authorities. The above testifies to the usefulness of the study of the socio-economic role of local self-government bodies in the field of guardianship and conservatorship of adult incapacitated persons and persons with limited legal capacity. In this regard, an attempt was made to characterize the legislative basis and practical organization of the activities of local self-government bodies during their performance and powers of guardianship and conservatorship of adults, to determine and analyze the relevant duties, which, according to the results of the study, are proposed to be classified into three main groups (ensuring, protecting and defending the rights and legitimate interests of adults in need of guardianship and conservatorship; controlling and supervising the activities of guardianship and conservatorship entities (guardians, conservators and special institutions); controlling and supervising the preservation and management of property of persons under guardianship and conservatorship).

Compulsory land redistribution from the perspective of the theory of price control

Philippine agrarian reform involves compulsory purchase of private farmlands. Several landowners were suspected of either using land use conversions (LUCs) to pre-empt expropriation, or choosing market-led agrarian reform (MLAR) options to retain effective control of their farmland. However, there has been no statistically-tested empirical evidence to support anecdotal claims that these were adopted by landowners to protect private property rights. Before testing whether LUCs have been used solely to avoid land redistribution, this article provides a theoretical framework that treats the reform as a price intervention policy since compensation is usually below market value. This article’s novelty lies in its application of Cheung’s theory of price control to explain how land redistribution could change the use of productive asset through LUC, or the contractual arrangement of involved parties through MLAR. Afterwards, this study employs feasible generalized least squares regression, where the effect of compulsory land redistribution on MLAR and LUC are tested to investigate the hypothesis that LUC was largely induced by agrarian reform. The results show that some LUC and MLAR were induced by the risk of expropriation, although in the case of former only when the risk of expropriation is high. Based on Cheung's theory of price control, the response choice should depend on the transaction costs associated with each of the alternatives. The theoretical framework suggests that some landowners may have preferred MLAR first before considering LUC, which is posited as one reason why the proportion of expropriation-induced LUC may not have been as high as some might like to claim.

Human rights law, intellectual property and vaccine nationalism: lessons for the post-COVID-19 world

ABSTRACT The rollout of COVID-19 vaccines during the pandemic was labelled a ‘parallel pandemic of human rights’. Occuring simultaneously with the primary public health crisis, the production, distribution, and profiteering that followed the announcement of vaccines were satirically referred to as ‘vaccine nationalism’ or ‘vaccine apartheid’. Against the backdrop of the COVID-19 pandemic and its attendant vaccine inequality, this article examines the extent to which existing international human rights laws provide a framework for equity in global vaccine distribution. The article explores the delicate balance between protecting intellectual property and promoting public health and human rights: the private property rights of vaccine developers and the broader human rights of members of the public to vaccine access. It does this by appraising the decision on the proposed waiver of intellectual property rights for COVID-19 vaccines and treatments under the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights during the pandemic. The article argues that a reform of the WTO multilateral system is needed to ensure that in future global health emergencies, private interests are subordinated to global public health needs and that global action is not conditioned by nationalism and hegemonic positions in international relations.

Protection of Property Rights during the Russian-Ukrainian War: Theoretical and Legal Analysis

Background: This article presents a scientific and legal analysis of the provisions of the current legislation of Ukraine and international legal acts in the field of protection of private property rights during the Russian-Ukrainian war. Based on historical and legal analysis of scientific heritage and modern scientific theories in the field of protection of private property rights and the right of possession by all subjects of public life, the authors of this article provide generalisations and recommendations for improving the effectiveness of international protection mechanisms in this area. Methods: The authors resort to numerous research methods, such as the method of philosophical dialectics and hermeneutics, historical, comparative, structural, and functional methods, analysis and synthesis, and induction. Results and Conclusions: The article examines international and Ukrainian regulatory legal acts that substantiate the mechanisms of acquisition, possession, and disposal of property owned by a person on the right of private property. Particular attention is paid to the latest problems associated with bringing to the established international responsibility war criminals involved in causing property damage and moral damage to the civilian population in connection with the destruction of private property. The authors suggest improving the mechanisms for the protection of the rights of private property that has been destroyed or damaged as a result of war crimes committed by Russian invaders on the territory of Ukraine.

Right to Private Property under Martial Law in Ukraine

In Ukraine, the inviolability of the right to private property is guaranteed by the Constitution. However, under martial law, introduced in Ukraine as a result of aggression by the Russian Federation, restrictions on private property rights and even forced alienation of property for the needs of the state are allowed. This paper aims to determine the peculiarities of the legal regulation of private property relations under the legislation of Ukraine and to study the reasons for limiting property rights under martial law in Ukraine. Furthermore, it looks into the mechanisms for restoring property rights and issues in the field of implementation and protection of property rights under martial law. Such cases of restriction of private property rights as forced alienation of property and impossibility of disposal of property under martial law are being highlighted. The article also analyzes the problems of compensation for damage caused to property in terms of the war.

Libertarianism and Original Appropriation Homesteading: Response to Dominiak

What is the ultimate justification for private property rights? How do they first legitimately come into being? Both Dominiak and I reject the usual explanation: they come into existence based upon a grant of executive privilege, based upon the will of the king or the democratic legislature. For this leaves open the issue of why either of them have the right to grant private property rights in the first place. Dominiak claims this is based upon first or prior possession. In the present paper I will criticize that alternative, and defend the John Lockean notion of “mixing labor” with land and natural resources as a means of coming to own them via homesteading.

On land, life, and labour: Abundance and scarcity in Locke, Smith, and Ricardo

On land, life, and labour: Abundance and scarcity in Locke, Smith, and Ricardo

Property as an Asset of Resilience: Rethinking Ownership, Communities and Exclusion Through the Register of Resilience

This article sets out a new conception of ‘property as an asset of resilience’. Building on Fineman’s emphasis on ‘webs’ of resilience, and applying insights from Actor-Network Theory and Resilient Property Theory, we examine how the rhetorical claims asserted by owners and non-owners, individually and collectively, and the ways that law recognizes and endorses those claims, affect the production of property-as-resilience. Applying Fineman’s framework, we argue that the ‘embodiment’ and ‘embeddedness’ of human vulnerability is revealed by the necessary and inevitable relationship we have with land, housing and place. Everyone—including homeless people—must ‘be’ somewhere (embodiment); however, it is our ability to access ‘assets of resilience’ through our social embeddedness in institutional structures and relationships that mitigates (or not) our experience and life opportunities. In this article we analyze the nature of real property as an asset of resilience, the consequences of exclusionary concepts of ownership for how resilience is allocated, and the implications for how we think and talk about ‘exclusion’ and ‘inclusion’ in property theories and property law. We consider the roles that states perform in the allocation of property as an asset of resilience: both directly, through the protection and enforcement of private property rights and official narratives about the nature of private property; and indirectly, as owners leverage the hinterland of privilege extended to ‘ownership’ and owners to deepen their own networks of resilience.

The morality of illicit markets: “Greasing the wheels” or “greasing the palm”?

When and why are illicit markets regarded as morally legitimate? We address this question in the context of Soviet and post-Soviet Russia, where the moral legitimacy of commerce has waned since the collapse of the Soviet Union. We do so by analyzing the continued resiliency and robustness of illicit markets and their moral perception in Soviet and post-Soviet Russia, where de facto private property rights have remained insecure in spite of de jure political and economic reform. Given the continuity of illicit markets across both periods, we argue twofold. First, what has remained constant in the moral nature of illicit markets across both periods has been the entrepreneurial drive to realize gains from trade by circumventing and evading a predatory state. Secondly, given this constancy in the form of illicit market exchange, we contend that changing moral attitudes toward commerce have resulted from the changing manifestation of illicit market exchange, in response to the predatory nature of the state. In both the Soviet and post-Soviet period, the state has remained a means to create monopoly privileges. However, whereas in the Soviet period, illicit markets served as a means to “grease the wheels” of commerce, economic transition in post-Soviet Russia corrupted the moral legitimacy of a market economy by transforming illicit markets into a means to “grease the palms” of government officials in the name of “privatization.”

토지수용에 관한 법적 쟁점의 해결방안

Article 23 (3) of the Constitution provides for the guarantee of property rights, while stipulating that property rights can be restricted based on law on the premise of payment of legitimate compensation if there is a public need. The judicial problems related to land expropriation are as follows. First, land expropriation contains legal issues regarding landowners and related persons who have interests in the land. In particular, the legal status of a person with a security right with respect to the expropriated land and a buyer with a claim for bond registration on the land is a problem. Second, if landowners receive expropriation compensation instead of losing their ownership through land expropriation, they sometimes deposit expropriation compensation on behalf of the land, so the mortgage holders acquire the right to property compensation, and the bond claimants who purchased the land acquire the right to claim. This is a matter of legal interpretation and at the same time is linked to the guarantee of property rights of landowners and interested parties. Third, there is a significant possibility that there will be a legal dispute or not consultation on the appropriate theory of compensation for loss between the landowner and the project operator who are deprived of property rights in the process of land expropriation for actual public projects. There is an opinion that public collection can be a serious infringement on private property rights in that property rights such as land of others are acquired for public interest and other welfare purposes. The main purpose of this paper is to derive public and judicial problems related to land expropriation and to find solutions to the extent possible. In particular, it is necessary to clarify whether the protection of the property rights of landowners who lose their ownership due to land expropriation can be protected in a way other than the payment of compensation for expropriation. In other words, by deriving an appropriate legal remedy for private ownership infringed by public utilities, we intend to find the right balance between public interest and private interest.

North Korean Corporate Governance Reform and the State‐Market Nexus

The question of economic reform has been one of the most debated issues in the study of North Korean political economy. Through examining the case of corporate governance reform under the Kim Jong Un government, we argue that existing discusions of North Korea reform rest on a problematic ontological separation of state and market that fails to capture the extent to which the state uses economic reform to embed itself in and in certain respects deepen market dynamics to ensure its own reproduction. As we argue, the Socialist Enterprise Responsibility Management System has sought to reduce the role of central planning, increase management rights and incentives, institutionalize SOE engagement with the market, and provide more scope for performance‐related pay for workers. In recognizing the role of private capital, it has placed enterprises' market activities on a firmer legal basis, albeit without fully legalizing private property rights. The measures represent not only the recognition of existing market dynamics but also their institutionalization, giving the reforms both a reactive and a proactive dimension. However, there are also strict limits placed on this process as part of the state's strategy of political control. While the state's policies can to a degree be seen as “pro‐market,” policy makers are reluctant to allow space for a genuine non‐state sector to emerge and accept the market only to the extent that it contributes to and strengthens the state sector.

Cıvıl-legal regulatıon of the procedure of requısıtıon ın the case of natural dısasters, accıdents, epıdemıcs, epızootıcs and other extraordınary cırcumstances ın Ukraine

The spread of the coronavirus pandemic throughout the territory of Ukraine, the introduction of martial law in connection with the full-scale invasion of the russian federation, require the state to apply such legal mechanisms that would help eliminate the negative consequences that arose in connection with dangerous events, or prevent their occurrence. One of such mechanisms is the institution of requisition, which is legalized in national legislation by the constitutional provision of Article 41 of the Constitution of Ukraine. Thus, according to the specified article of the Basic Law, forced alienation of objects of private property rights can be applied only as an exception for reasons of public necessity, on the basis and in the manner established by law, and on the condition of prior and full reimbursement of their value. Compulsory expropriation of such objects followed by full reimbursement of their value is allowed only under conditions of war or emergency. At the same time, the state’s right to requisition property is an exception to the basic principle of inviolability of property rights for every legal state. Forced expropriation of property must be carried out with strict and unwavering adherence to the legally established procedure, which confirms the relevance of this scientific issue.The article states that it is not only correct, but also urgent to adopt a special law on requisition with the definition of the body (or bodies) that would be in charge of the forced expropriation of property independently or in coordination with other state authorities. In addition, we believe that the determination of the value of property should be carried out on the date of its assessment, by analogy with the way it is provided for requisition under the legal regimes of war or state of emergency, and carrying out the assessment as of the date of adoption of the administrative act on the requisition of property is erroneous.

Grounds for the right to use someone else's property (easement).

The institution of the right to use someone else's property (easement) originated in ancient Rome. Its reception in the Ukrainian legal system is due to the economic development of Ukraine and the introduction of the right of private property. In connection with the recodification and renewal of the civil legislation of Ukraine, as well as the introduction of martial law, the need for further research into issues related to easements has become beyond doubt.
 The article has been devoted to the study of the grounds for the emergence of the right to use someone else's property (easement) under the legislation of Ukraine. The Civil and Land Codes of Ukraine contain an exhaustive list of the following grounds for the emergence of the right to use someone else's property (easement): contract, law, will and court decision. An easement can arise both on the basis of only one legal fact and a certain legal structure.
 The particular attention has been paid to the issue of the emergence of easement under the contract. Types of contracts on the basis of which servitude may arise have been analyzed. The emphasis has been placed on the parties and the essential terms of the easement agreement. The cases provided for by the legislation, in the presence of which, the right to demand the conclusion of an agreement on the establishment of an easement may belong to persons engaged in certain types of activities, have been studied. The specifics of the regulation of servitude relations under the contract during martial law have been clarified.
 The peculiarities of the emergence of the right to use someone else's property (easement) on the basis of a court decision have been analyzed. As a result of the consideration of the dispute, the court may make the following decisions: regarding the obligation of the defendant to conclude a contract with the plaintiff or its decision to establish an easement.
 The easement can be established by direct prescription of the law and by will. The differences between establishing an easement in a will and in a testamentary refusal are considered. Based on the results of the research, conclusions have been made regarding the prospects for the settlement of the studied relations.

Coase and the problem of social cost

In the view of many, Coase (1960) overcame and supplanted Pigou (1932) in terms of the sophistication, and accuracy of the law and economic analysis of social cost. It is the task of the present paper to main that the same fate should befall Coase. We have through are paper tried to redefine the problem, showing in the process that the problem of social cost is the problem of violation of private property rights which in policy and judicial implementation becomes the problem of establishing the harm done, and holding the damaging party responsible for the violation.

Public-private linkages and the case of asteroid mining

ABSTRACT This paper highlights the role of government in boosting the private space sector and proposes that public-private linkages and state support are critical for the success of private space endeavours, such as the fledgling asteroid mining one. The economics of high costs in tandem with outsized risks, and the long time-horizon for the investment to reap a return, have been big obstacles for companies that want a stake in asteroid resource extraction. Such factors necessitate the state stepping in to share the burden. Government funding, technological help, and the state's underwriting of high-level risks, along with ensuring private property rights, are critical for the viability of the asteroid mining infant industry. This paper shows that without enough government backing, the possibility of success for such an enterprise is compromised, as seen in the dismal outcomes of the asteroid mining companies that emerged in recent times.