Operationalising Progressive Ideas about Property: Resilient Property, Scale and Systemic Compromise

Property theory is at a crossroads. In recent decades, scholars seeking to advance progressive ideas about property have embraced ‘Progressive Property’ theories that seek to advance the goals of social justice and the common good, offering a vital counter-weight to utilitarian and neo-conservative accounts of property. Progressive Property theories seek to correct an imbalance in American property discourse which—across the temporal scale—has sustained a range of narratives and normative commitments, but which has veered towards extreme acquisitive individualism and the rhetoric of property absolutism since the 1970s. The idea that individual property rights are not absolute but defined by the requirements of social justice is uncontroversial in many European jurisdictions, reflecting their normative foundations in traditions of European social welfarism and Catholic social teaching. In Property Rights and Social Justice: Progressive Property in Action, Walsh foregrounds a system designed for normative hybridity, and evaluates the practical possibility of balancing commitments to social justice within a system that upholds private property rights. In this paper, we build on Walsh’s account to consider the implications of her insights for scholars seeking to advance progressive ideas about property in the U.S. context across three registers of scale: rhetorical, jurisdictional and physical. Applying Resilient Property Theory (RPT), we reflect on how the dominance of rhetorical methods in the last half-century has foregrounded ideological conflicts between competing normative commitments in U.S. property scholarship, locating scholars seeking to advance progressive ideas about property on a battleground that has been prepared to benefit others. Building on Walsh’s approach of “widening the doctrinal lens,” we argue that RPT offers a new methodological toolkit for advancing progressive ideas about property: by widening the legal lens; widening the contextual lens; and widening the methodological lens. We argue that each of these approaches, as they engage with material and hierarchical scales, offers opportunities to identify and advocate for compromise positions between respect for private property rights and social justice considerations, enabling active political and legal engagement with normative diversity and respecting and taking seriously different legal conceptions of the good.