Volume 6: The Role of Property in Secure Societies

The Hague, Netherlands
October 19–21, 2016

Board of Advisors and Journal Staff
Table of Contents

Opening Remarks: How Property Rights Even Stop Wars

Hernando de Soto

From the rural farmer in Latin America who is struggling to protect his family and his possessions to the street vendor in Tunisia whose wares are confiscated, the desire for property and property rights is universal. While many scholars take a theoretical approach to property rights, discussing and proposing what should be, I have devoted my career to finding out what is and use that knowledge to help bring peace, security, and stability. My research has taken me around the world, consulting with governments in an effort to bring stability. Time after time, I have discovered that property—in particular the legal protection of property—has been the key to unlocking the value of people’s labor and creating economic, political, and social stability. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 1 (2017).

Excerpts from The Mystery of Capital

Hernando de Soto*
* Reprinted from HERNANDO DE SOTO, THE MYSTERY OF CAPITAL (2000), with permission from the author.

The hour of capitalism’s greatest triumph is its hour of crisis. The fall of the Berlin Wall ended more than a century of political competition between capitalism and communism. Capitalism stands alone as the only feasible way to rationally organize a modern economy. At this moment in history, no responsible nation has a choice. As a result, with varying degrees of enthusiasm, Third World and former communist nations have balanced their budgets, cut subsidies, welcomed foreign investment, and dropped their tariff barriers. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 9 (2017).

How to Make Land Titling More Rational

Benito Arruñada

Discussions on economic development have lately focused on the role of institutions in protecting property rights and reducing transaction costs. In particular, the idea has taken root that development would benefit from facilitating access to legality. It is thought that, if those in possession of even small buildings and plots of land have good titles, they will enjoy better incentives to invest and can use these real assets as collateral for credit. Similarly, if business entrepreneurs are able to “formalize” (for our purposes, publicly register) their firms easily, they will benefit from operating them as legal entities. For instance, they will have access to the courts for enforcing contracts and settling disputes, and will also be able to obtain credit and invest more. Consequently, firms will grow faster and be more productive. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 73 (2017).

Formalization, Possession, and Ownership

Thomas W. Merrill

This paper is a comment on the work of Hernando de Soto, who has done so much to highlight the importance of property rights, especially in the context of what I will call migrant communities within developing countries. These are the shantytowns of Peru, the favelas of Brazil, and the bidonvilles of Haiti. De Soto characterizes these communities as “extralegal zones.” They consist, in his words, of “modest homes cramped together on city perimeters, a myriad of workshops in their midst, armies of vendors hawking their wares on the streets, and countless crisscrossing minibus lines.” I am interested in de Soto’s work on these migrant communities for two reasons, which are related. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 113 (2017).

Freedom in Property: From the Magna Carta to Land Reform in Jamaica

Janet Bush Handy

The Brigham-Kanner Property Rights Conference provides a unique opportunity for members of the practicing bar and academia to explore recent developments in the laws that affect property rights. In 2016, this opportunity was expanded to consider international themes with the joint sponsorship of William & Mary Law School and the Grotius Centre of International Legal Studies at the Thirteenth Annual Brigham-Kanner Property Rights Conference at the Peace Palace in The Hague. The recent law developments herein addressed concern the continuing evolution of land reforms in Jamaica and the lessons that they provide about the continuing importance of the work of this year’s Brigham-Kanner Prize winner, Hernando de Soto. This essay attempts to place those land reform efforts in a historical context. A short essay can only skim the surface of a history of people who have faced untold challenges, but it is offered as a tribute to those who end their national pledge with an invocation of hope, asking that Jamaica may “increase in beauty, fellowship and prosperity, and play her part in advancing the welfare of the whole human race.” (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 129 (2017).

Property's Role in the Fundamental Political Structure of Nations: The Southern African Experience

Heinz Klug

There is a dominant assumption that private property is a fundamental element in the protection of “all other rights” and serves as a bulwark against oppressive government. Yet, we also recognize that historically there has been an intimate relationship between the power of the State and property, including private property. As the prominent legal realist, Felix S. Cohen, famously argued in his Dialogues on Private Property, private property may best be described by the statement:

To the world:
Keep off X unless you have my permission, which I may grant or withhold.
Signed: Private citizen
Endorsed: The State (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 145 (2017).

Private Property for the Politically Powerful

James Burling

Traditional Anglo-American law always considered property rights nearly sacrosanct, with the giants of the legal field equating private property with liberty and an area that was best not molested by government. A central purpose of government was seen to be a protector of private rights and liberties, including and especially, rights in property. And, so great was the regard for private property, that not even actions for “the common good” could violate it. Of course, the practical necessity of condemnation was recognized by early theorists such as Blackstone, who cautioned government to use that power sparingly—noting that it is not the sort of power that an individual man, or even a “set of men,” can exercise. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 179 (2017).
 
Are Eminent Domain and Confiscation Vehicles for Wealth Redistribution? A Skeptical View

James W. Ely, Jr.

Wealth redistribution, at least rhetorically, is back in vogue in the United States. A number of scholars have called for a redistribution of economic resources. During the 2016 presidential election campaign, Democratic Party candidates echoed this assault on concentrated wealth. This, of course, was not the first episode of redistributive fervor to appear over the course of American history. Sporadic complaints about wealth distribution in the United States have been a recurring feature of political life. One thinks of the Populist Movement of the 1890s and the New Deal years of the 1930s. But in fact these outbursts produced little change in wealth patterns. For example, despite talk of soak-the-rich policies, the New Deal 1935 tax law neither significantly altered the distribution of income nor broke up accumulated wealth. Whether the present clamor will result in meaningful change remains to be seen, but there is reason to be doubtful. Americans have never demonstrated a sustained national commitment to economic equality. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 211 (2017).

Ownership of Data: The Numerus Clausus of Legal Objects

Sjef van Erp

From a comparative viewpoint, “ownership” at a formal level (i.e., technical-terminological), but even more so at a substantive level, already has a wide variety of meanings. It ranges from the fullest right possible with regard to tangibles (thus excluding intangibles as in German law) to the fullest right possible with regard to both tangibles and intangibles (as in French law) to an exclusive right to possession (as in common law, where we should, furthermore, distinguish between “estates” in land and “titles” to personal property). What has hardly been noticed is that the description of what is meant by ownership, although primarily aimed at delineating the content of that right, also characterizes the object of the right. The object of the right is thus a part of the right’s content. In other words, the right (ownership) and the object (tangible/intangible) have traditionally been connected; the object is a qualifier of the property right. This intersects with the civilian idea of a numerus clausus of property rights, which is thus buttressed by a numerus clausus of legal objects. The type of property rights is seen as limited, both with regard to number and content, and so is the type of objects related to those property rights. The digital revolution, with its rapid growth of digital data and incredibly fast expansion of interconnectedness and interoperability, thus makes us question both what can be recognised as a legal object (can it include “digital data” and if so, under which conditions?) and what the impact of the recognition of digital data as a legal object means for our understanding of ownership. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 235 (2017).

Property in the Anthropocene

J. Peter Byrne

Human-induced climate change threatens perilous risks for our physical homes. It also poses a serious challenge to our legal institutions. Several scholars already have remarked on the disruption climate change has brought to specific legal areas, such as tort, standing, and national security. This essay argues that climate change will also disrupt fundamental ideas about real property. Prior work has explored the need for fresh approaches to land use regulation and a shift in regulatory takings law. This essay looks at the more fundamental assumptions and principles of property law. It maintains that the growing need for human management of dynamic natural forces, distorted by greenhouse gas emissions, will erode the foundations of physical stability and owner autonomy that shape basic doctrines of property law. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 259 (2017).

The Missing Rung: Challenging Regulatory Barriers to Property Acquisition

Christopher Serkin

A reliable property system, accessible to all people, is a critical precondition to a well-functioning economy and even to democracy itself. The absence of such a system can force people into informal legal relationships, largely invisible to the State and economically perilous for the participants. Hernando de Soto has explored in detail the regulatory and legal barriers in developing countries that prevent significant swaths of the population from participating in the formal property system. In de Soto’s telling, the problem is not the absence of law, but instead its over proliferation. The result is that formal property is all but impossible to access, and those relegated to informal systems cannot climb the economic ladder. Formal property, in this view, is the missing rung in meaningful access to capital and to economic opportunity. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 275 (2017).

Protection of Property and the European Convention on Human Rights

Frankie McCarthy

A scholar with an interest in the constitutional property rights of any legal system will eventually find herself exploring the literature from the United States. Over the years, the Takings Clause has generated such a treasure trove of judicial thought and legal writing that to ignore it is to impoverish the property rights scholarship of other jurisdictions. It was a genuine delight, therefore, to read that the 2016 Brigham-Kanner Property Rights Conference was to be held in Europe, and that continental property scholars would be invited to participate in an exchange of knowledge with the expert U.S. delegates who have made the conference what it is over the years. During my three days in The Hague last October, I not only learned a great deal, I also enjoyed one of the warmest and most collegiate conference experiences of my career to date. It was a pleasure, if not a surprise, to find that the hospitality of U.S. property rights lawyers is every bit as rich as their writing. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 299 (2017).

Property Rights as Defined and Protected by International Courts

Michael Rikon

International agreements have broad implications for property ownership and trade. Under international agreements, property is not limited to real property and intangible commodities but includes intellectual rights and any other right which have value. International conventions establishing rules expressly recognized by the contesting state must be applied by an international court when deciding disputes that are submitted to it. From this one may conclude that treaties are one of the principal sources of international law. (read more)

6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 329 (2017).