Lynda Butler, ‘The Importance of Viewing Property as a System’

Serious questions are now being raised about the viability of American capitalism and the American property regime that enables capitalism to exist and thrive virtually without constraint. Those questions arise in the context of global problems of extremes that threaten the integrity of Earth’s biophysical systems and undermine the stability of political and social systems. Western-style property regimes stress the importance of unrestrained marketplace transactions and the decision making of self-interested property owners. The American approach, in particular, legitimates the power of property owners to decide how and when to use and manage their property. The approach assumes that each owner makes rational decisions, maximizing the owner’s welfare and therefore the welfare of society. The problems of extremes now developing on a global level, however, provide important feedbacks that call into question the validity of the assumptions and norms of the American approach. Can the core norms and principles of western-style property regimes adapt to curb excesses inherent in the dominant form of capitalism? Answering this critical question requires an understanding of the structure of property that enables property law to evolve, react to changing conditions, and take into account new information and knowledge about current physical and social realities. The key to taking this step is to view property as a system with a complex structure and embedded norms and operating principles that fail to reflect current biophysical and social conditions.

Butler, Lynda L, The Importance of Viewing Property as a System (July 20, 2020). San Diego Law Review volume 58, 1 (2021), William and Mary Law School Research Paper No 09-421.

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