We talk a lot about environmental protection, but very little about property rights. However, protecting the environment most often implies limiting the right to property, which leads to incessant conflicts between the State and the owners. Why ?
Posted at 9:00 a.m.
Difficult to know without a historical perspective over a few centuries.
Ownership in the Middle Ages conferred only limited rights. God owns everything, man is at best its usufructuary (a kind of tenant), and the king, anointed by God, grants overlapping rights. This deal divine implies leaving to the peasants the use of vast common spaces and natural resources to ensure their subsistence (the commons). Life there is fundamentally communal and precarious. Nature, mysterious and cruel, dominates man, and from afar. The law is adapted to this customary reality, which is called feudalism.
Newton arrives. He is modern, scientific and formidably intelligent. He makes the indirect demonstration that the dominion of God, that is his domination over all that cannot be explained, finds its reason in science. In a few years, God descends to Earth (read: God takes a considerable landing) and loses the privilege of being the author and source of all mysteries. To consecrate reason is to understand this frightening Nature which oppresses us and to dangle innumerable possibilities of success and wealth. But in order to dominate Nature, cultivate on a large scale or own millions of sheep whose wool will clothe the whole of Europe, the course of things must be changed and the common spaces privatized (i.e. the current equivalent of air and the water).
The law then moves away from custom and, like science, is anchored in reason. The proof of a right implies, as for the scientific fact, the analysis of the facts.
The property becomes the fact that one tries to demonstrate. To do this, we draw on Roman law. The res nullius solve this thorny problem. While in theory what belongs to no one belongs to all (these are the res communis), them res nullius admit the opposite: what belongs to no one can be taken by a single individual. The common spaces disappear in favor of capital and the peasants then become the workers of this new system of extraction and large-scale production: capitalism.
All colonies will be built on this principle. Exit therefore the res communis. Since we think on a large scale, the law invents the moral person, a creature of rights, but of few obligations, which skims the seas, the riches of the colonies and founds countries, then vast commercial enterprises. Let us think of the VOC of the Dutch merchants, richer on its own than the group formed by the Big Fives (GAFAM). The law is aligned with this new paradigm and adapts to this unqualified vision of the right to property, which is fundamental to commerce.
Then comes John Locke, English philosopher and ardent supporter of God (and shareholder of the Bank of England), who sees in the right of property the salvation of the individual. He who can support himself cannot be anyone’s slave. The freedom associated with the right of property will be enshrined in several constitutions, including that of the United States. Canada, like most Commonwealth countries, will never do so so as not to compromise the powers of Parliament and the King. Now, says Locke, an individual is able to demonstrate his right of ownership by his labor. In a few words, freedom is associated with the right to extract through one’s occupation of the land (which can moreover be appropriated by prescription). We will retain from his thinking that it is through action that we enhance the soil, that is to say that we give it a value, by “working” it, and that it is a question of an act of freedom, fundamental to the exercise of capitalism.
Even today, land only has value if you can attribute a price to what you can extract from it.
Thus, owning a forest is not an act of valuing the soil, because nothing can be gained from it. But cutting down the forest implies drawing a price from the cut trees. There is, in doing so, reclamation of the soil in the sense understood by John Locke and most of the current owners.
Over the centuries, countless laws of social order have come to limit and frame the rights to extract and exclude. The reason ? The obvious impossibility of endlessly sustaining so-called unsustainable GDP growth without harming the survival of species and resources. Once again, the law adapts. But how far has he adapted?
If Newton lived today, it is likely that he would take note of the situation, like the IPCC and the multitude of scientists who, after analyzing the facts, are sounding the alarm. But the res nullius and the right to extract and exclude are tough. But they were born when the earth’s population approached 500 million individuals and their survival did not depend on the protection of the environment.
What about now in the face of a population of nearly eight billion people? Is it time to change the business model and adjust the legal model? If the law, once again, follows the scientific model, the question does not arise. In fact, the answer is known to everyone and the law is quick to recognize the facts.
Moreover, whereas a few years ago the law presented property as a fundamental right, it now presents housing as such a right and, as a sign of new times, now attributes the title of fundamental value to the environment, a evidence that was unnecessary to name before the industrial revolutions. The current downgrading of private property is probably a transitional phase towards an increased recognition of the omnipotence of Nature.
But time is running out. And the real question that must now be asked is, in my opinion, the following: who is in control of the time we have left? In fact, these are no longer the res nullius which pose the greatest problem, but rather the time that we will take to dominate what we have invented and to combine environmental imperatives with the sometimes irremediable consequences of the exercise of property rights on our collective survival.