298 Pages Posted: 9 Oct 2011
Date Written: January 22, 2011
This jurisprudential thesis argues that when an economy has grown so large that it has reached or exceeded the threshold point beyond which any further growth is ‘uneconomic’ (i.e. socially or ecologically counter-productive), property relations as expressed in law should no longer be defined and defended in order to grow the economy. Instead, property relations should be reconstructed in order to achieve more specific welfare-enhancing objectives – such as eliminating poverty, lessening inequalities, and protecting the environment – and the efficient growth of GDP or lack thereof should be treated as a by-product of secondary importance. For these reasons reference will be made to a ‘post-growth’ property system, a system whose coherency, viability, and desirability will be evaluated and ultimately defended as the central project of this thesis.
After outlining the central thesis, the introduction looks more closely at the notion of economic growth (as measured by increases in GDP) and considers how its rise to dominance as the pre-eminent policy objective of governments has given modern property law a ‘pro-growth’ structure (focusing on the U.S. jurisdiction). Chapter One presents a multi-dimensional critique of growth – social, ecological, and economic – and concludes by proposing a new macro-economic framework ‘beyond growth.’ Chapter Two examines whether the macro-economic framework proposed could be advanced legally by reconfiguring property relations in advanced capitalist societies. Responding to the objection that such institutional restructuring would illegitimately interfere with established property rights, it is argued: (1) that due to the indeterminacy of property, contract, and market concepts, significant reform of a private property/market system is not a conceptual impossibility; (2) that the state is always and necessarily involved in defining property entitlements and market structures, a point that fundamentally blurs the private/public distinction which is often used to insulate the economy from state intervention; and (3) that defining those property entitlements and market structures is a normative, value-laden undertaking and therefore cannot be done in such a way that is neutral between conceptions of the good life.
Having established that property law, in particular, and the legal framework of the economy, in general, are malleable creatures of legal convention, the argument of the thesis becomes explicitly engaged with questions of normativity and value. Chapter Three draws on the life and ideas of Henry Thoreau to express an anti-consumerist ethics of consumption. It is argued that Thoreau’s ethics of consumption provide a coherent and attractive normative foundation for a post-growth jurisprudence of property. Chapter Four focuses attention on theories of law reform arising out of the growing literature on law and social movements. After explaining how cultural values and practices shape law, this chapter examines the Voluntary Simplicity Movement, an emerging social movement which represents the most coherent manifestation (in contemporary Western culture, at least) of the Thoreauvian ideals of sufficiency and simplicity. It is argued that this social movement will almost certainly need to expand, organize, and politicize, if anything resembling a post-growth property system is to be realized in law. The final chapter goes beyond foundational theory and critique and sketches an outline of what a post-growth property system might actually look like as a legal reality.
Keywords: degrowth, voluntary simplicity, simple living, sustainable consumption, critical legal theory, property, politics of consumption
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