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DOI: 10.1111/ijsw.

12044 I N T E R NAT I O NA L
Int J Soc Welfare 2013: 22: S85S101 SOCIAL WELFARE
ISSN 1369-6866

Private property and human rights:

A mismatch in the 21st century?
Harvey M. Jacobs. Private property and human rights: Harvey M. Jacobs1,2
A mismatch in the 21st century? 1
University of Wisconsin-Madison, WI, USA
Institute for Management Research,
This article explores the future of private property in Radboud University Nijmegen, Netherlands
land in the context of the United Nations (UN) human
rights framework. I examine the historical and current
debate, and show why it is difficult to come to a
definitive conclusion on a matter that has been so
central to social and political philosophy. Among the
questions that frame this investigation is the relevance
of 18th century property-related human rights con-
cepts in the 21st century, where the poor are increas- Key words: private property, human rights,
ingly residents of informal settlements in mega-cities. United Nations, global urbanization
I critically assess the wording and adoption of Article Harvey M. Jacobs, Department of Urban and
17 in the Universal Declaration of Human Rights. I Regional Planning, 925 Bascom Mall/Old
further examine the formal actions of the UN to Music Hall, University of Wisconsin-Madison,
demonstrate the confusion that exists about the role of Madison, WI 53706, USA
private property. Then, I argue that private property is E-mail:
a human right, but this does not mean that it will take
the form that it does in Western societies. Accepted for publication March 24, 2013

This article focuses on the right to private

property in land and the extent to which it
This is a period of history when there is a should be (and can be) understood as a fun-
great deal of global discourse about private damental human right. To answer this query, I
property specifically the ownership and explore how ownership and control of land
control of land and housing as a social and were understood as fundamental to both the
legal institution. This discourse is truly political and economic conception of human
global, occurring in developing, transition rights in the late 18th century intellectual
and developed countries. Some of this dis- movements that fed into the American and
course grows out of transformative political, French revolutions. Then, I turn to the 1948
social, and economic events of the late 20th Universal Declaration of Human Rights
century; some of this discourse grows out of (UDHR). Through an analysis of it and sub-
the explosive growth of mega-cities, prima- sequent United Nations (UN) Covenants, I
rily in the developing world, and the paths seek to explain the seemingly confounding
that might be available to the poor in these irresolution over private propertys place in
cities to move out of poverty, and some of this a human rights framework. I next examine
discourse is rooted in discussions that began the contemporary global debate over private
after World War II (WWII) and continue to property. Here, I focus especially on the
the present about the articulation and realiza- advocacy for private property as a vehicle
tion of fundamental human rights. to obliterate urban poverty in the growing

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mega-cities of the developing world and on debates had an EastWest structure focused
criticisms that this advocacy fundamentally on the relative merits of conflicting macro-
misunderstands both what might help the political economies socialism versus capi-
urban poor to overcome poverty and what talism, communism versus democracy. From
they themselves want. I close by seeking to the perspective of the early 1990s, the new
answer the question that frames this article: is era (post-Berlin Wall, post-Soviet Union)
private property a match or mismatch with would be one in which only one set of ideas
the 21st century conception of human rights? would prevail: capitalism and democracy.1
In all this, my approach is both interdis- The new countries of Central and Eastern
ciplinary and eclectic. I draw from across the Europe and the former Soviet Union as
social sciences to create a coherent narrative well as other countries that were undergoing
that situates the historic and current debate their own independent political changes
about private property in land. In so doing, I (such as South Africa) began asking them-
provide for an informed basis for my specu- selves and others how to become more inte-
lation as to how private property will (or will gral to the global community. How does a
not) come to be treated, as contemporary country acquire the economic standing of the
global discourses about the meaning of advanced developed countries? How does a
human rights unfold. Ultimately, this article country acquire the political legitimacy of the
both answers and does not answer the ques- advanced developed countries? How does a
tion it poses. That is, I conclude by arguing country acquire capitalism and democracy?
that private property is a human right and These became among the most pressing
has come to be understood as such as the questions of the late 20th century.
global debate on human rights has evolved. For reasons that are explored in more depth
However, I also conclude in line with many later, an answer centered on the social and
others that exactly what private property is legal institution of private property in land.
or should be is contentious, because of its Private property was understood as the literal
complex history and because it is an ever- key to a market-based capitalist economy and
evolving social and legal institution. to democratic political structures.
Over the past several decades, developing
and transition countries around the world
A global context
have, with the counsel of the multilateral and
Private property is a social and legal institu- bilateral international aid agencies, aggres-
tion that has a long history across many cul- sively moved to introduce the social and legal
tures and legal systems (Schlatter, 1951). It institution of private property (Deininger,
has come into contemporary focus because 2003). This tendency has been further aided
of the changing nature of the global poli- by advocacy suggesting that the creation of
tical economy. private property is the central variable to the
The fall of the Berlin Wall in the late alleviation of poverty in developing coun-
1980s and the dissolution of the Soviet Union tries (de Soto, 2000). In this same period,
in the early 1990s are what most obviously there has been a rejuvenation of the social
contributed to the new global interest in and legal debate about private property in
private property. When the Wall came down the USA (Jacobs, 1998, 1999, 2010), and in
and the Soviet Union broke apart, some Western Europe, decades-old institutional
prominent social commentators suggested
that the grand social debates of the 20th
century were finished (e.g. Fukuyama, 1989). 1
Huntingtons (1997) notion of a clash of civili-
According to this line of thinking, the zations is an alternate concept to the one
20th century social, political, and economic advanced by Fukuyama (1989).

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Private property and human rights

arrangements that have structured the rela- In the period prior to the Wests discovery
tionship of the individual to the state over of the Americas and sea routes to Asia, life in
the scope of private property have begun to Europe was characterized by a population
shift significantly (e.g. Allen, 2010; Jacobs, with access to limited natural resources. In
2008ab, 2012; Ploeger & Groetelaers, 2007). this situation, it could be argued that a more
In the last few years, the extent and sub- centralized and autocratic form of govern-
stance of this trend has become clear. There ance and resource allocation made sense. If
are few countries in the world where private there were limited resources and a steady
property is not a topic of public policy and or growing population, it was critical that
social debate. For example, two of the few resources not be wasted so that there was
remaining communist-led countries in the access to minimal resources by all. The age of
world have moved to embrace private pro- discovery and exploration changed all this.
perty. In the spring of 2007, China made inter- A literal explosion of resource availability,
national news through its revision of national resources such as gold, silver, fur, timber, and
laws that established the conditions for the land, transformed the economic and social
ownership of private property in housing, and reality of Europe. Life was no longer charac-
starting in spring 2008 and accelerating in terized by constraint but instead by unex-
2011, Cuba introduced laws that will allow pected and unplannedfor abundance. It is
the private ownership of houses (Anonymous, into this new material environment that new
2008; Cave, 2011; Zhang, 2008).2 ideas about governance and markets were
All told, this has led to heightened global introduced.3
discussion about private property and prop- John Lockes work was particularly influ-
erty rights. Leading legal scholars are noting ential (Locke, 1988/1689). Locke proposed a
a global debate over constitutional property relationship between landownership and citi-
(Alexander, 2006). Others suggest that the zenship, and landownership and democracy.
extent of private property rights protection According to Locke, the individual held a
serves as a reliable indicator of both eco- natural right to property, and one came to
nomic strength and political freedom, leading possess property through using it.4 According
to global rankings of private property rights to Locke, freely constituted governments
robustness (Bethell, 1998; Jackson, 2011). (i.e., democracies) existed for the protection
of individual liberties, including the liberty to
Private property in classical theory hold and control property.
and formulation Lockes ideas had substantial influence
on the ideas of Jean-Jacques Rousseau
Democracy and market economies are ideas
that have existed for millennia, yet demo- 3
This characterization about the emergence of
cracy as a form of governance and market democracy and markets draws strongly from the
economies as capitalism transformed from exposition by Ophuls (1977).
ideas into social realities in the 17th and 18th It was this argument that provided the justification
for taking land from native inhabitants in the
centuries. One theory for why this occurred Americas and Africa, who were not understood to
has to do with the so-called age of discovery. be using it in the European sense of active agri-
cultural and forest management. This argument
also justified proposals for the breaking apart of
Chinas efforts to create private property made it large, landed estates by the wealthy and redis-
the front cover illustration of The Economist on tributing land toward the laboring and newly
March 10, 2007. The illustration showed a happy emerging middle classes.
Chinese peasant atop a tractor, la Maoist-era Cronon (1983) is commonly cited as a pioneer-
realist art posters, holding up a little red book (an ing study documenting the attitudes of Puritans
allusion to Maos little red book). The words on toward the Native Americans use of their land in
the book property deed. the American colonial settlement period.

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(1994/1754; 1997/1762; Bromley, 1998). asserting propertys centrality, was not

Together, Locke and Rousseau strongly influ- unchallenged. Also drawing from Locke,
enced then-contemporary thinking about the others saw the need for private property
content of what became the American and ownership to bow to social needs. Among
French revolutions. As well documented, the American founders, these sentiments were
American Revolution was as much about argued most strongly by Benjamin Franklin
grievances over access and control of prop- (the colonies revolutionary-era ambassador
erty as about more commonly spoken of to France and the Netherlands). For example,
issues such as freedom of speech, freedom in the debate over the ratification of the con-
of religion, freedom of the press, or freedom stitution for the US state of Pennsylvania (his
of assembly (Ely, 1992). Ideas about human home state), Franklin (1907/1789, p. 59) said,
rights and what it meant to be a citizen were (p)rivate property is a creature of society,
developing, and they were directly tied into and is subject to the calls of the society when-
ideas about (private) property. ever its necessities require it, even to the last
In the nascent USA, the countrys found- farthing. In other words, Franklin viewed
ers drew from John Lockes ideas to argue as legitimate the publics right to create,
that one of the principal functions of forming re-create, take away, and regulate property as
a government was the protection of property. it best served public purposes.5
In the debate over the ratification of the Private property was thus a confusing
proposed US constitution, James Madison issue for Americas founders. How were
(who would go on to be the fourth American these disparate positions be resolved? With
President) wrote that government is insti- ambiguity. In 1776, the US Declaration
tuted no less for the protection of property of Independence (authored by Thomas
than of the persons of individuals (Hamilton, Jefferson) promised each (free, white, male)
Madison, & Jay, 1961/1788, p. 339). Other American life, liberty and the pursuit of
key contemporaries agreed. John Adams happiness. What is telling about this phrase
(1851/1790, p. 280) (who became the second is that Jefferson borrowed it directly from
American president) noted that property Locke, but Lockes phrase was life, liberty,
must be secured or liberty cannot exist. The and property. This is what Jefferson wanted
moment the idea is admitted into society that the Declaration to say, but Jeffersons (and
property is not as sacred as the laws of God, Lockes) ideas did not prevail in the final
and that there is not a force of law and public debate and ratification of the document.
justice to protect it, anarchy and tyranny com- Eleven years later, in 1787, the US Con-
mence. Thomas Jefferson (the author of the stitution was adopted. What did it say about
Declaration of Independence and the third land-based private property? Nothing. It was
American president) linked the individuals
right to own and control property with the 5
very existence and viability of democracy. These sentiments by Franklin were not isolated.
As noted by Brands (2000, p. 623): Franklin
According to Jefferson, ownership of land took a striking socialistic view of property.
by farmers created the very conditions that Brands (2000, p. 623) provides these other exam-
allowed democracy to exist (Bassani, 2004). ples of Franklins opinions: All property . . .
When a farmer owned his own farm, he could seems to me to be the creature of public conven-
tion. All the property that is necessary to a man
produce food, fuel, and building materials for for the conservation of the individual and propa-
himself and his family. In so doing, he was gation of the species is his natural right, . . . but
obligated to no one he was literally free to all property superfluous to such purposes is the
property of the public, who by their laws, have
exercise his political views as a democrat. created it, and who may therefore by other laws
However, this view of the relationship dispose of it whenever the welfare of the public
of property to democracy, and the fact of shall demand such disposition.

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not until 1791 with the adoption of the citizenship was conceptualized as directly
Bill of Rights that the so-called takings tied to property ownership.
(expropriation) clause appeared as the The French Revolution occurred only 13
closing phrase to the Fifth Amendment to years after the American Revolution (in
the Constitution: . . . nor shall private 1789), and access to and protection of rights
property be taken for public use, without in property were likewise central themes.
just compensation.6 When the revolutionaries sat to articulate
With the adoption of this phrase, the their ideas about the social and political
Constitution formally recognized four con- rights of citizens in the new France, one
cepts: the existence of private property, an of the rights that emerged was directly
action denoted as taken, a realm of activity parallel to the Takings Clause of the Fifth
that is public use, and a form of payment Amendment of the US Bill of Rights. In the
specified as just compensation. The interrela- Declaration of the Rights of Man and Citizen
tion of these concepts is such that where of August 1789, the final of the 17 rights
private property exists, it may be taken (i.e., states: Property being an inviolable and
seized by the government without the land- sacred right, no one may be deprived of it
owners permission) but only for a denoted except when public necessity, certified by
public use and when just compensation is law, obviously requires it, and on the condi-
provided. If either of these latter two condi- tion of a just compensation in advance.7
tions is not met, then a taking may not occur. All the structural elements of the Takings
Was anything either about property or Clause in the Fifth Amendment to the US
about citizenship and property settled by constitution discussed earlier are in Right 17.
the adoption of the US Bill of Rights? Yes and The right to private property is recognized.
no. In the new US suffrage, the right to vote The right of government to expropriate that
was restricted to those who held landed property is also recognized. However, the
property, and the legal protection offered right of government to advance against a citi-
under the Bill of Rights as adopted in 1791 zens right noted as inviolate and sacred is
was such that if one held property, then that only under the conditions of a public neces-
property was protected from arbitrary and sity that obviously requires it and when
capricious action by government. But despite such action is certified by law. When these
Locke and Rousseaus rhetoric, universal conditions are met, then the citizen is entitled
access to property was not guaranteed (in to the condition of a just compensation
spite of Jefferson advocating for it), and in advance.
While the legal framework appears essen-
tially the same, the political situation was
The US Constitution does speak to private prop- different. Given the structural conditions of
erty, just not land-based private property. What the relationship of the French aristocracy
the Constitution recognized was the ownership of to the populace at the time of the French
slaves as property under Section 2 of Article IV,
where it establishes the right of owners to have Revolution, the Revolutions ideas about citi-
escaped slaves returned to them. Also under zenship and property were both different than
Section 2 of Article III, the Constitution estab- and similar to those articulated in the USA.
lishes a procedure for how conflicting claims to At least in theory (although not in actual
state-based land grants by individuals would be
resolved. practice), the Revolution provided for univer-
It is also worth noting that in the Fifth sal suffrage; the right to vote was not tied to
Amendment the phrase preceding the takings the ownership of land. However, as in the
clause states No person shall . . . be deprived of
life, liberty, or property, without due process of
law, making explicit the Locke-inspired link A discussion about the property provision in the
between liberty and property. Rights of Man is contained in Jacobs (2008a).

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USA, the Revolution did not provide for Political scientists and legal scholars con-
each citizen to possess property. What it tinue to make arguments drawing from Locke
did instead was to provide against the and Rousseau and analogous to those of
arbitrary action of the state if a citizen did Jefferson (e.g. Freyfogle, 2010; Purdy, 2005),
have property. and economists continue to make arguments
The net result of these two events the that draw directly from Smith.8
American and French Revolutions was that Thus, the rationale for private property is
a formulation emerged. The rights of citizens, both political and economic. Drawing from
particularly the right to vote, might or might political theory, the argument is that owner-
not be tied to property, but the state was not ship insulates the owner from the arbitrary
going to guarantee citizens the right to prop- power of the state and provides the owner
erty. Instead of promising property, the state with the literal material conditions to exercise
was going to promise to protect property ones rights as a citizen in a democracy. That
against arbitrary state action when the indi- is, as Jefferson argued (drawing from Locke
vidual had independently achieved that prop- and Rousseau), (agrarian) landownership
erty, and even with this promise, the swath of because it allows the owner to provide food,
action that the state could engage in was fuel, and building materials for ones self
broad and relatively unbounded. and ones family frees one to exercise
At the same time, as these political argu- ones political judgment without coercion.
ments were being developed and adopted as Drawing from economic theory, the argu-
key components of the emerging American ment is that private property seeds the
and French Revolutions, a parallel economic system by making people accountable and
argument was being developed. In The assets fungible, by tracking transactions, and
Wealth of Nations, Adam Smith (1937/1776) so providing all the mechanisms required for
advanced the foundational argument for a monetary and banking system to work and
market economy; Smith argued for an eco- for investment to function (de Soto, 2000, p.
nomic structure based on labor specializa- 63).9 Intertwined, these two arguments pro-
tion and free market exchange of goods vided much of the rationale for programs of
and services. land reform in the post-WWII period, as
Private property is central to a market developed countries sought to foster private
economy. When someone owns land, they property (as an alternative to tribal, commu-
have something that has the potential to nal, group, and state property) in developing
return value to them. The owner has reasons and then transition countries.
to care for the land and to invest in the land
(e.g. to make it more productive). Individual
actions have the potential to provide direct The UDHR
returns to the owner. In addition, individual The UDHR was adopted by the UN General
ownership of property becomes a key to a Assembly in December of 1948 by a vote of
modern banking system. Ownership gives
the owner something of value that can be
invested in and borrowed against. Finally, See the section after Private property in the con-
Smith argued that the social institution of temporary global debate.
While dominant, political, and economic argu-
property provided one of the strongest justi- ments are the not the only ones that are made for
fications for a civil government. the focus upon private property and private prop-
Both sets of arguments for the centrality of erty rights. Garber (2000) provide an insightful
(and humorous) examination of the way property
private property the political (for demo- in American society becomes imbued with emo-
cracy) and the economic (for market econo- tional power and comes to represent many aspects
mies) have continued into the present day. of the self in society.

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48-0-8. Its emergence reflects directly the Why this is so becomes clear when one
atrocities of WWII, and the broad-based examines the evolving history of UN action
interest in an explicit statement about the subsequent to the Universal Declaration.
nature of human rights, specifying the
general commitment to such in the UN
Private property in subsequent UN
Charter of 1945. While adopted by the UN
covenants and documents
General Assembly, the Declaration does not
represent an official treaty of the UN and thus In 1954, the UN Commission on Human
does not have the force of law of an inter- Rights met to work on the draft of the
national agreement. This was by design, Covenant of Economic, Social, and Cultural
however, and in spite of its semiformal legal Rights. The 1954 meeting followed meetings
status, according to the UN, it has become the in 1951, 1952, and 1953. At these meetings, it
most translated document in the world. could not be agreed upon whether to include
Article 17 of the Declaration states (in an article related to property (United Nations,
full): 1. Everyone has the right to own prop- 1954). When the Commission met in 1954,
erty alone as well as in association with (n)o member of the Commission expressed
others. 2. No one shall be arbitrarily deprived opposition in principle . . . (h)owever, the
of his property. Commission failed to adopt a unified text
The drafting of Article 17, its adop- (p. 7). The USA proposed incorporating the
tion, and the subsequent implementation text from the Universal Declaration, but
of it belies the controversy it caused objections emerged from representatives
(Alfredsson, 1992, p. 255; see also Glendon, as varied as Chile, Egypt, India, Lebanon,
2001, pp. 182183 for a discussion about its Philippines, Poland, Uruguay, among others.
development and adoption). What was and These objections reflected the differing his-
continues to be of contention is what exactly tories and political economies of these coun-
is being addressed in this Article. Forty years tries, their stages of economic, social, and
after its adoption, a 1988 UN report sought to cultural development, and thus their perspec-
clarify Article 17s content. It was noted tive on land and property, and the interplay of
(W)hile no one questioned the right of the the rights of the individual and those of the
individual to own property, there have been state. Matters of when and how expropriation
considerable differences of opinion with may occur, conformity with state laws (such
regard to the concept of property, its role and as regulations) and whether a right to prop-
functions, and the restriction to which the erty meant a right to the essential needs
right of property should be subjected of decent living were among the conten-
(United Nations, 1988, p. 7). In a recent legal tious issues (United Nations, 1954, p. 8).
analysis, Golay and Cismas (2010, p. 11), Ultimately, the Commissions deliberations
discussing Article 17 and subsequent UN about incorporation of Article 17 (or some
treaties, came to the same conclusion: version of it) into the draft Covenant
. . . we can conclude that the general accept- adjourned sine die.
ance of the right to property is beyond doubt. The two most significant UN treaties to
But the definition of the right to property emerge from the Universal Declaration are
varies in the different legal instruments, in the International Covenant on Economic,
particular with regard to its limitations, the Social, and Cultural Rights and the Interna-
allowed balancing of interests and the clauses tional Covenant on Civil and Political Rights,
on social aspects . . . None of the universal both of which were adopted in 1966 (and
and regional instruments discussed offers a went into force in 1976) and were signed by
clear-cut definition of the object of the right, 160 and 167 nations, respectively (United
i.e. property . . . Nations, 1966ab). However, what is notable

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is that they are both silent on the right to right to property is engaged in one fashion or
property (Golay & Cismas, 2010, p. 3). As another (such as those for Africa, Latin
noted, going as far back as the early 1950s, America, and Europe), the report does
(i)n lengthy debates there was disagreement nothing to advance the discussion about
on practically every aspect of the topic . . . property, especially private property, as a
indeed the very inclusion of the right human right.
(Alfredsson, 1992, p. 259). More recently, in 2008, the UN
In 1988, the UN Economic and Social Development Programme issued a report
Council issued a report about Article 17 titled from the Commission on Legal Empower-
Respect for the right of everyone to own ment of the Poor. Chapter 2 of Volume II
property alone as well as in association with of the Working Group Reports focused spe-
others and its contribution to the economic cifically on Empowering the poor through
and social development of member states. property rights (Albright & de Soto, 2008,
The report: chapter 2, pp. 63128). Like the other work
cited earlier, this report frames its discussion
. . . recognized that there exist in Member
through the lens of Article 17 of the Univer-
States many forms of legal property
sal Declaration. However, it extends past dis-
ownership, including private, communal,
cussions through both its assertions and its
social and State forms, each of which
explicitness with regard to private property.10
should contribute to ensuring effective
The chapters executive summary begins:
developments and utilization of human
Property rights must be understood as a fun-
resources through the establishment of
damental human right and (t)hroughout
sound bases for political, economic and
history the idea of human rights has devel-
social justice. They have also recognized
oped in close association with the idea of
that the right to property may play an
private property rights (emphasis added,
influential role in fostering widespread
Albright & de Soto, 2008, p. 64). The report
enjoyment of other human rights and con-
then goes on to assert that (l)egal access to
tribute to securing the goals of economic
property rights for various groups is clearly
and social development (United Nations,
an over-arching and universal issue that
1988, p. 4).
should be at the centre of global efforts to
The report also: empower the poor (Albright & de Soto,
2008, p. 66). The bulk of the report engages
. . . recognized that the right to property
a broad range of contemporary literature
should be subject only to such limitations
about property and gender, womens rights
as are determined by law solely for the
(or more commonly their lack thereof)
purpose of securing due recognition and
to property, customary tenure, indigenous
respect for the rights and freedoms of
peoples rights, lessons from past efforts at
others and of meeting the just require-
formal entitlement, and speculations on the
ments of morality, public order and
potential role of property rights among the
general welfare . . . no State . . . should be
growing numbers of slum dwellers and small
engaged in any activity or perform any act
business operators in the mega-cities of
aimed at the destruction of . . . the right
the world.
of property . . . (United Nations, 1988,
pp. 45).
But beyond broad recognitions and then a
listing of the UN Covenants and Declarations 10
Perhaps this extension occurs because the
where Article 17 is obliquely addressed and Commission is not reporting as an official UN
regional Charters and Conventions where a body seeking consensus among nations.

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divorcing citizenship from property, applied

The debate about property and citizenship
policy initiatives in the developing world
in the latter half of the 20th century
were all about property and citizenship. In
In the middle of the 20th century, after the period after WWII, the developed coun-
WWII, the global community actively re- tries began working in the developing coun-
engaged matters of citizenship, property, and tries of the so-called third world actively
human rights. One version of this engage- pushing programs for land reform. Analyses
ment was through the issuance of the UDHR, of the time argued that concentrated forms
which addressed a wide range of issues, of landownership forms identified as anti-
including those having to do with slavery quated inhibited processes of economic,
(Article 4), rights before the law (e.g. Articles social, and political development. In order to
68, 9, and 10), forced marriage (Article 16), foster development in the latter part of the
and an adequate standard of living (Article 20th century, what was necessary, even
25), among others. essential, were new forms of landownership.
In this period, T. H. Marshall (1950) pub- Throughout Latin America, Africa, and
lished his seminal essay on Citizenship and Southeast and South Asia, the USA and
Social Class. What is significant about this Europe offered technical assistance for pro-
essay for this exploration is that it had little, grams of land reform whose goals were
if anything, to do with land and the link essentially the replication of the Western
of landownership to citizenship and human model of individual (private) property pre-
rights. Marshall was representative of a cisely because of the political and economic
group of scholars and activists for whom land advantages such a model was believed
had become or was becoming irrelevant. In to foster.
an increasingly urban world (Marshall was Another development that was about
writing about England in the mid-20th property (and tangentially about human
century) and at a time of universal suffrage, it rights) helped set the orientation of the then
did not appear necessary to think about or emerging environmental movement. Garrett
comment upon what role privately owned Hardin, a population biologist, published a
property should or might play to ones defi- seminal article in 1968 entitled The Tragedy
nition as a citizen or ones access to human of the Commons. His goal in the article was
rights. Instead, for Marshall, the argument to speak to management of human population
was to demonstrate how concepts of citizen- growth, but his illustration was about the use
ship had evolved and were evolving, and that of unmanaged natural resources resources
now, the focus was to be on the linkage owned by none but used by all, such as the
between citizenship and social rights. oceans or the atmosphere. An unanticipated
This theme was picked up in the USA a result of his argument, though, was its exten-
decade-plus later in a seminal article on The sion to all forms of natural resources, those
New Property by Charles A. Reich (1964). unowned but also those privately owned,
Unlike Marshall, Reich argued that property when rational decision making by the indi-
is still important for citizenship and human vidual does not result in rational outcomes
rights, but in Reichs formulation, as in for society at large (e.g. Sinden, 2007). While
Marshalls, it is about citizen access to Hardins analysis came to undergrid the
governmental programs welfare rights for rationale for public management (i.e., regu-
health care, housing, employment, and so lation) of a broad range of property forms,
forth. These are the new forms of property Hardin himself argued in the article that the
alluded to by the articles title. solution for the tragedy was the social and
Yet at the same time that Marshall and legal institution of private property (Hardin,
Reich, in England and the USA, were 1968, pp. 1245, 1247).

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To many, it was not clear that Hardins programs (Lastarria-Cornhiel, 1997), and the
analysis, while rhetorically compelling, was growth of slums in mega-cities and the long-
wholly correct. In particular two aspects are term status of their residents (Gulyani &
worth noting whether commons ownership Bassett, 2007; United Nations Habitat,
always leads to a tragedy and whether the 2003). In China, protests over land issues are
only viable (though imperfect) solution for the most common form of mass incidents;
the tragedy is the social and legal institution a sociologist has estimated that in 2010, there
of private property. Elinor Ostrom (1990) were 180,000 such incidents (A. Jacobs,
developed an analysis of common institutions 2011). Most of these were about government
that argued for their functionality and dura- expropriation of land for economic develop-
bility (her work led to her being awarded the ment. While land in China is owned by the
2009 Nobel Prize in Economics). She was central government, this does not appear to
among many who pointed out that Hardins remove a sense of ownership on the part of
work focused on a very particular type of farmers at the urban edge threatened with
commons open access commons and thus forcible removal, or the shock of more
should not and need not be generalized. well-to-do residents in suburban enclaves
So the legacy of this period was am- likewise threatened (A. Jacobs, 2011). Taken
biguous. On the one hand, in the developed together, this has led multilateral (and bilat-
countries, the link between property and citi- eral) aid organizations to begin to offer a
zenship seemed to fade, overtaken by urbani- more nuanced focus on lands role in eco-
zation, universal suffrage, and new concepts nomic development (e.g. Deininger, 2003;
of citizenship. On the other hand, the rising Deininger, Augustinus, & Enemark, 2010;
concern about environmental management United Nations Habitat, 2008). And even in
renewed discussions about property, particu- the developed world, there are intensive dis-
larly the social functionality of private prop- cussions about property, especially about the
erty vis--vis what has come to be known as appropriate extent of governmental action
sustainability. At the same time, while the toward privately owned land (e.g. Jacobs,
propertycitizenship discourse was fading in 2010, about the USA, and Allen, 2010,
the developed countries, these very same about Europe).
countries were fostering it in developing All of this focus serves to highlight some
countries globally. of the concerns that originally led to Article
17 of the Universal Declaration and continue
to animate discussion about the property
Private property in the contemporary
human rights link today. But what is different
global debate
today is the renewed focus upon private
The matter of property access to it, rights property as a property form. While some of
over it, possession of it, appropriate mecha- this is attributable to the historical shifts of
nisms for resolving social conflicts over it is the last several decades (see the section A
a very contemporary global issue, and it takes global context in this article), much of it is
many forms. In the developing world, some also a result of the advocacy and influence of
of these include the much discussed matter of Hernando de Soto, a Peruvian whose work
so-called land grabbing (large-scale land has had significant impact at the World Bank
economic concessions) for food production (de Soto, 2000). de Soto provides a 21st
(e.g. De Schutter, 2011, the Special Issues century updating of Adam Smiths argu-
of Journal of Peasant Studies, 38(2), 2011, ments but focuses on urban poverty in
pp. 206298, and Globalizations, 10(1), developing countries. He asks Why are the
2013, pp. 1209), the disenfranchisement poor, poor? To frame this question, he made
of women in the process of land-titling this observation:

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The poor . . . have things, but they lack the have a secure title, they have something
process to represent their property and against which they can borrow to increase the
create capital. They have houses but not quality of their residence or to use as collat-
titles; crops but not deeds; . . . It is the eral for other (business) investment.
unavailability of these essential represen- But, de Sotos solution is subject to a
tations that explains why people who have wide-ranging set of critiques. It is suggested
adapted every other Western invention . . . that de Sotos solution is simplistic, unreal-
have not been able to produce sufficient istic, and perhaps even unwanted to those to
capital to make domestic capitalism work. whom it is directed. Even where the poor do
This is the mystery of capital (de Soto, have title, it is not clear that financial institu-
2000, pp. 67). tions (banks) want to lend to them. Clear title
may be one component of credit worthiness,
For de Soto, the solution is about creating but so is demonstrable and steady income,
private property: which the poor can rarely demonstrate. And
Property . . . is . . . a mediating device that then, there is the matter of whether the banks
captures and stores most of the stuff want to (or can) repossess from the poor if a
required to make a market economy run. loan goes bad.
Property seeds the system by making Gilbert (2002) is one of many who
people accountable and assets fungible, by observed that land titling does not seem to
tracking transactions, and so providing all elicit a supply of credit to new owners, and it
the mechanisms required for the monetary is not clear that it contributes significantly to
and banking systems to work and for the emergence (beyond what exists infor-
investment to function. The connection mally) of a housing market (see also Payne,
between capital and modern money runs Durand-Lasserve, & Rakodi, 2009, for a
through property (de Soto, 2000, p. 63). broad ranging critique of the impacts of
titling). Galiani and Schargrodsky (2010) are
It is de Soto who co-chaired the UN more generous toward titling programs. They
Development Programme Commission on argue that titling does lead to increased
Legal Empowerment of the Poor and who so housing investment and a correlative set of
strongly influences the argument for linking social benefits (reduced household size and
human rights to private property (Albright & enhanced education of the households chil-
de Soto, 2008). The rapporteur for the prop- dren), but they also noted that this is not as a
erty rights chapter, a de Soto colleague, has result of improved access to credit.
elsewhere written: (T)he denial of private Gulyani and Bassett (2007) are among
property rights as human rights opens the many who wonder whether the poor actually
door to slavery and grave forms of exploita- want title. Title can have several counter-
tion and (T)he protection, guarantee, and intuitive results. Titles in formerly informal
respect of private property independently . . . settlements can make land attractive to the
are fundamentally useful for the promotion of non-poor (the middle-class). Titles thus can
individual and social wellbeing (Cheneval, lead to the displacement of the poor. When
2006, pp. 11, 16). this occurs naturally, some may argue that
de Soto has become most associated with it can be seen as a good thing (the poor treat
the idea that widespread land titling pro- their title as an asset to be converted to capital
grams in the slums of the mega-cities of the through selling it to the middle class). But
world providing private property title to even then, it can also mean that the number of
existing residents are a key action toward informal settlements does not shrink, but
the alleviation of structural poverty. Drawing only changes location. And then there are
directly from Adam Smiths logic, if the poor the instances where titling does not occur

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naturally but where elites displace the poor in the importance of property rights can pale
anticipation of titling, and the poor both in comparison with other more immediate
receive no benefit from titling and must relo- human rights and needs, especially for the
cate. And even where displacement as a result very poor (such as hunger and poverty).
of titling does not occur, the poor may still be
ambiguous about title; with title comes obli- As one expression of the points above,
gations for example to pay local taxes Alfredsson (1992, p. 260) noted that:
which may eventually lead to displacement. . . . property rights have been criticized as
So what do the poor want? They appear to standing in the way of progress . . . The
want many of those things normally associ- importance of property rights is often
ated with the benefits of clear title a secure deemed to pale against the background of
site for housing, access to clean water and other problems, such as hunger, poverty
human and solid waste disposal, and access and misery. Unequal distribution of
to a range of social and public services such wealth tends to follow the lines of sex and
as schools and health clinics. race, especially affecting . . . groups in
All in all, the provision of private property minority situations . . . The overall con-
is both a very current topic in global discus- centration of most of the worlds property
sion but also an ambiguous one vis--vis its in the hands of the comparative few . . .
impacts for improving the conditions of the makes property rights seem more a part
poor in the growing mega-cities of the world. of the problem than an interest entitled
And yet the ambiguity of private property to protection.
as a solution for poverty alleviation does
not appear to dampen the attractiveness of As we consider the question posed by this
de Sotos advocacy or the controversy such article, it is important to keep two things in
advocacy generates (see e.g. Granr, 2005, mind. First, property is a social creation,
and Gravois, 2005, as two examples). where society (the state) decides (defines)
what property is what constitutes private
Private property as a human right? property, public property, or any other prop-
erty form. Society also decides when and
Several things can be asserted about (private)
how property will be protected. That is,
property and human rights:
society decides the limits it will place upon
property rights are central to civil and itself. Second, people globally yearn for
political rights and have long been recog- property. This yearning may take different
nized as such; they have long been a core forms. It might not be for ownership in
part of the discourse about human rights; a narrow or Western sense, but it almost
property rights (territory) are definitional always reflects the deep desire for the secu-
for individuals and peoples (and are often rity and stability that property, and private
the source of intense social conflict (war); property as it is understood in the West,
human rights without property rights traditionally conveys.
has long been understood to be an Is property a human right? Yes! The his-
empty formulation. torical data suggests that since we began to
think about human rights in the modern era
But it is also true that:
(from the time of the American and French
property rights (property ownership and revolutions), property has been an integral
control) correlate with the empowered and part of the human rights discourse, although
the wealthy; always a controversial one. Is private prop-
property rights regimes can impede the erty a human right? Yes! It seems quite clear
realization of other human rights; that for both the Americans and French, the

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property being referenced in their respec- Unquestionably, there is an intrinsic link

tive foundational documents is largely and between property, land and food (p. 25), and
most significantly private property over land. so they conclude that The right to property
But exactly what this means or will mean is essential for the protection of human life
in this era is unclear. In 1948, the UDHR and dignity of the right holder as it contrib-
offered a formulation that did little to utes to the realization of economic and social
advance the one articulated 250 years ago in rights including the right to housing, to food
the USA and France. Article 17 acknowl- and to social security (p. 28).11
edges the right to own property, and it prom- Since 1948, official bodies of the UN have
ises that when property is owned, it should be sought to specify a meaning for Article 17.
treated respectfully by the state that it will Each time, the result is confusion and ambi-
not be subject to arbitrary and capricious guity. This is not surprising. Article 17 began
action. But Article 17 of the UDHR does not as a subject of intense controversy; its very
promise property, as did neither the Takings inclusion was contentious. The reason the
Clause of the US Bill of Rights or Right 17 of UN study groups through the years have not
the Declaration of the Rights of Man. That is, succeeded in a precise articulation of the
a narrow interpretation of the right to prop- meaning of Article 17 of the UDHR is the
erty from these documents is that it is to be very complexity of the subject. What prop-
construed as a right that comes into force erty even is cannot be agreed upon. Golay
with obligations from the nation-state and and Cismas (2010, p. 11), in their review of
international bodies if the individual has global and regional covenants and conven-
obtained property. There is no positive obli- tions, noted that none of the universal and
gation of the state to provide property. What regional instruments discussed offers a
there is instead is a positive obligation to act clear-cut definition of the object of the right,
toward property legally procured. i.e. property . . .
But there is an alternate interpretation for Within the UN today, there are strong
Article 17. As noted by Alfredsson (1992, advocates for a particular Western conception
p. 257), Article 17 should . . . be read in of private property who build their advocacy
conjunction with other provisions of the on the foundation of Article 17, and there are
UDHR. And when one does this, another equally strong skeptics. That is, there are
view of what Article 17 means emerges. For those who advocate for the recognition of a
Golay and Cismas (2010, p. 2), to use but one multiplicity of property forms as the best
example (but one in which the issue is exam- expression of a contemporary understanding
ined in depth), The right to property, under- of human rights and citizenship.
stood as a means of survival, is closely Is the social and legal institution of private
related to the realization of the right to life property a mismatch for the realization of
and of other human rights of the individual. human rights in the 21st century? In a histori-
In fact, they go so far as to assert that despite cal period where the world is more than 50
persisting controversies, the formal inclusion percent urban and becoming evermore so
of the right to property among the panoply
of human rights . . . is clearly attested . . . 11
(p. 3). In what ways is this true? In part, they However, Golay and Cismas are quick to
acknowledge, as are all commentators, that any
draw their links through Article 25 of the right to property is not one that is unlimited or
UDHR and its assertion of a right to a stand- unbounded. Instead, a right to property can be
ard of living, including a right to food and limited and shaped by the state for various
reasons [e.g. in their words, in order to resolve
housing. As they note: The link between social injustices and advance the economic,
property and housing is indeed so obvious social and cultural rights of specific disadvan-
that it requires little explanation (p. 23). taged individuals or groups (p. 28)].

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daily, is private property a useful, even essen- This should be a very reasonable and
tial, component of our lives? Does private doable challenge. Property as a social and
property matter to those estimated 2 billion legal institution is always evolving. Even in
people who will occupy urban slums in the Western societies what one can claim to
global mega-cities? My answer to these ques- own in this period of the early 21st century
tions is no, yes, and yes. is significantly different than what ones
Davy (2012) argued that property itself is grandmother or great-grandfather would
polyrational, that it requires a multitextured have claimed as ownership.
understanding, conceptualization, and policy At the beginning of the 20th century, an
approach.12 He is correct. The challenge is owner of landed property in the West could
that the tides of history and policy are nar- claim ownership to the heavens above; the
rowing the ability to approach property with invention of the airplane changed all that. So
this level of nuance. Globalization is foster- while a landowner still possesses air rights,
ing an institutional environment conducive these rights no longer extend to the heavens
to (even requiring) an ever-narrow defini- above. In this same period, wives were the
tion of private property precisely because a property of their husbands and children of
Western conceptualization of private prop- their parents. The womens rights movement
erty furthers the interests of global market and the child welfare movement began a
actors. At the same time, individuals actively century-long process of changing that. Also
seek secure property relations of the type in this period, domestic animals were the
that, at least theoretically, are embodied in property of their owners, and the first wave
private property. animal rights movement (societies for the pro-
Will private property in the 21st century tection of cruelty to animals) changed that.
only be individual ownership in the Western So by the beginning of this century in the
model? Probably not. Will it instead utilize developed countries, a man can no longer
build upon alternate (and often long- beat his spouse, send his children off to work
standing) forms of ownership, such as tribal, in the mines or the mills, or mistreat his horse
community, and social? Most probably. simply with the claim that they are mine,
Private property in the future will likely and I will do what I want with them. Rela-
modify these alternate forms while recogniz- tionships that were once defined as property
ing their prejudices (e.g. against women) have reformed so that women, children, and
and shortcomings. This will mean the need domestic animals now all have rights inde-
to invent new forms of ownership that pendent of ownership. None of this has
integrate old ideas with the demands of been without substantial social controversy,
new circumstances. but it illustrates that what society recognizes
and is willing to defend as a claim to private
property changes as technology and social
12 values evolve.13
Davy (2012) is one of many authors to stress
the multitude of ways in which property may
be owned, managed, and secured. As noted,
Ostrom (1990) argued for the viability of Ophuls (1977, p. 223) made a similar point when
commons management in counterpoint to he reflected on the relationship between private
Hardin (1968). And Payne (2004) provided a ownership and sustainability: . . . only over a
typology for owners and their land, which century ago it was legal to treat human beings as
ranges from pavement dweller to free-holder; he property. Already, many people are finding our
is a lead author for the report by UN Habitat slavish treatment of nature stupid at best and
arguing the need for secure land rights for all, morally repugnant at worst. Looking back on us
but where this does not have to mean private as we look back on our slave-holding ancestors,
property in the Western sense (United Nations our descendants will wonder why it took us so
Habitat, 2008). long to come to our senses.

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Thus, what is recognized as private prop- private property will take. Private property is
erty in the future is likely to be different than foundational to core ideas about both citizen-
what it is today. Elsewhere, I have offered the ship and human rights. The challenge for the
prediction that in the USA, for example, the 21st century is to foster forms of private
right of exclusion commonly associated with property whose benefits will be realized by
a home is likely to remain for the foreseeable those most in need of them.
future (I was given the task to predict prop-
ertys form 100 years into the future), but
this was unlikely to be the case for private Acknowledgements
membership clubs or private institutions of
Foremost, I am grateful to my colleague and
higher education. My prediction is these will
friend Benjamin Davy for facilitating the
come to resemble businesses more than they
invitation to be part of the ZiF (Zentrum fr
do homes. That is, they will lose the right of
interdisziplinre Forschung in Bielefeld,
exclusion just as commercial establishments
Germany) Cooperation Group The Road to
did following the American civil rights
Global Social Citizenship? Human Rights
movement of the 1960s.14 In addition, I
Approaches to Global Social Policies in
predict that certain rights in the property
springsummer 2011 from which this work
bundle that can now be claimed as individual
emerges. I also want to thank his collabora-
will no longer be so, including the right to
tors and co-project leaders, Ulrike Davy and
clear-cut trees, or plow virgin soil, or use
Lutz Leisering, for so warmly welcoming me
toxic chemicals for land management, if
into the group. In addition, I greatly bene-
doing so destroys the land, and wildlife on
fitted from the professional and personal col-
my land will gain stronger, independent
legiality of the other members of the core
rights (analogous to those gained by domes-
group Armando Barrientos, Hartley Dean,
tic animals) (Jacobs, 2009).15
and Sony Pellissery. And my friend and col-
So one way to frame the question of
league August E. Rsnes of the Norwegian
private property and human rights is not to
University of Life Sciences was very helpful
ponder whether private property will exist, or
in sharpening my thinking on an early
whether it will spread, or even whether it will
version of this article when he joined us at
be promoted as a solution to the needs of the
ZiF for a workshop in summer 2012. Lastly,
urban poor in mega-cities of the world.
I want to thank the students in my winter
Instead the issue becomes the precise form
2013 special topic graduate seminar at
the University of Wisconsin-Madison for
working with me to clarify my understanding
on the subject matter of this article.
Before the civil rights movement, owners of
commercial establishments could exclude on
the basis of race, ethnicity, and religion. As a
result of the civil rights movement, these References
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