Resilient Property Theory

England and Wales, the US, and some other ‘advanced democracies’, are currently experiencing a period of significant political turmoil and change. In this ‘age of crises’, both the role of property as an ‘asset of resilience’, and the resilience of our property systems, have been foregrounded. As conflicts over access to resources have intersected with an exclusionary turn in the politics of belonging, theoretical accounts of property law must navigate questions about poverty, inequality, and unequal access to opportunity; the impacts of affordable housing and wider economic crises; the role of the state (including the apparatuses of law) in privileging and protecting vested property rights; land use and environmental sustainability; and individual-societal relations. Resilient Property seeks to understand the complexities of state action in response to property problems, by paying close attention to state responses to property problems in the context of changing pressures on the state. In doing so, we build on Lehavi’s account of the importance of ‘regime goals’ in giving content to property law in each jurisdiction. In The Construction of Property, Lehavi argued that property theory does not—for definitional purposes—inherently require that we subscribe to core content: asserting that while the concept of property has structural and institutional traits, it has no “inherent essence.” Rather, Lehavi argued, property law’s “essence” flows from whatever each society’s institutions choose to promote as values and goals. The structural traits of property provide the frameworks for translating these ideals from moral and social concepts into legal concepts, working through the interactions of legislatures, courts, and the professional organizations of civil society (legal and social institutions) that create property norms. Resilient Property Theory recognizes that, in reality, these ‘choices’ are contextualized and constrained by a range of factors that are both within and beyond the control of the state itself or the social institutions it sustains (for example, the market). State responses to property problems are dynamically shaped, and sometimes constrained, by a complex array of competing, at times overlapping, influences: from multiple or hybrid property ideologies, to the implications of property practices ‘on the ground’, in the context of national and international events and externalities. Finally, we recognize that state responses to property problems—including through law—are multi-scalar, from local authority/municipality/city-level laws and governance through to the national scale, and the influences of trans-national political and legal trends.