The

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The Taking of Europe? Globalizing the American
Ideal of Private Property

• Prof. Harvey M. Jacobs
• Department of Urban and Regional Planning
• Gaylord Nelson Inst. for Environmental Studies
• University of Wisconsin-Madison, USA
• Working Paper available from
• Lincoln Institute of Land Policy
• http//www.lincolninst.edu/pubs/PubDetail.aspx?pub
  id1105

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The Taking of Europe?

• Question for this research
• Role of private property and takings in the
  re-forming of Europe?

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Outline

• The Meaning of Taking
• Context
• 1 Global Changes
• 2 Europes Changes
• Two Nations?
• Case Data
• Conclusions The Taking of Europe?

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The Meaning of Taking

• Two meanings
• narrow legal
• broader social

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Narrow Legal

• Taking
• The right of the citizen to demand that the state
  provide compensation for regulatory action that
  is deemed too onerous
• That goes too far

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Broader Social

• Taking
• A change in the relationship between the citizen
  and the state in which the citizen feels
  empowered to push back against the states
  regulatory demands
• Regardless of any formal changes in law

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Context - 1

• Fall of the Berlin Wall 1989
• Fall of the Soviet Union early 1990s
• Outcome
• The End of History (Fukuyama, 1989)
• We won

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• 20th century debate was over
• Democracy vs. Socialism
• Capitalism vs. Communism
• Through 90s and early 00s only one set of
  institutions were considered viable for the
  planet
• Democracy as a political system
• Capitalism as an economic system

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Policy Question of the 1990s

• What are the necessary pre-conditions to create
  democracy and capitalism
• In the newly transitional countries
• In the countries of the developing world?
• (i.e. in all countries of the world?)

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Answer?

• Private Property!
• Private Property is key to democracy
• Private Property is key to capitalism

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Globalization of Property Rights

• This has been a period of history when private
  property has been actively promoted
• By bi-lateral and multilateral international
  development organizations
• e.g. USAID, GTZ, UN, World Bank
• And actively sought after
• By newly independent countries around the world

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Why?

• American Experience
• Strong democracy
• Strong market economy
• Especially the economic dot-com boom of the
  1990s
• Political and Economic Theory

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Political Theory

• By owning one is literally free
• Owning provides the owner with the ability to not
  have to be under the control of another
• Thus the owner, by the act of ownership, is
  empowered to exercise their democratic rights
  (e.g. the right to vote ones conscience) without
  threat

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Economic Theory

• Adam Smith The Wealth of Nations (1776)
• Hernando DeSoto The Mystery of Capital (2000)

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DeSoto on Property

• The poor inhabitants of these nations . . . do
  have things, but they lack the process to
  represent their property and create capital.
  They have houses but not titles crops but not
  deeds . . It is the unavailability of these
  essential representations that explains why
  people who have adapted every other Western
  invention . . . have not been able to produce
  sufficient capital to make domestic capitalism
  work. This is the mystery of capital

• Property . . . is . . . a mediating device that
  captures and stores most of the stuff required to
  make a market economy run. Property seeds the
  system by making people accountable and assets
  fungible, by tracking transactions, and so
  providing all the mechanisms required for
  monetary and banking system to work and for
  investment to function. The connection between
  capital and modern money runs through property

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Context - 2

• Europe is undergoing a process of fundamental
  change
• A United States of Europe is unfolding
• Elimination of border controls
• Creation of common labor market
• Introduction of a common currency (the euro)
• Integration of the higher education system

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Europes Concern

• Emergence of a bi-polar globe
• The U.S. and China
• Interest in positioning Europe as a third pole in
  this alignment

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Propertys Role

• Europe did not experience boom of 1990s why
  not?
• Some suggest it has to do with
• Power of the central state
• Legacy of command-and-control
• Definition of property
• Need for political and economical robustness

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U.S. as a Model?

• For the 20th century Europe was a model for the
  U.S. for planning
• City planning
• Peri-urban planning
• Urban sprawl containment
• Landscape management
• Appropriate balance of private public rights in
  land
• Now Europe is looking to the U.S.

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The Taking of Europe?

• Question for this research
• Role of private property and takings in the
  re-forming of Europe?

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Two Nations?

• U.S. and Europe
• Often characterized as two nations in which
  property hold a similar historical place
• Yet where its treatment is remarkably different

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• This difference is often attributed to
• Differing legal systems
• Europe civil code
• U.S. common law
• Differing histories
• Europe feudalism, communitarianism (social
  democracy) and limited space
• U.S. colonialism, individualism and unlimited
  space

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Case Data

• (southern) France
• Montpelier region
• Nimes

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Institutional Context

• Strong state authority for planning and
  regulation
• Ability to designate lands for permanent
  agriculture and open space
• Little basis for landowner to challenge
  designation

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• Legal framework provides for state to be buyer of
  first refusal for all lands in designated
  protected areas
• Offered price (by state) does not have to match
  offered market price
• Landowner can choose to not accept price
• But then must continue with protected land
  activity

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• Situation would seem to put state in strong
  position vis-à-vis landowners
• But . . . .

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Policy Interactionand Consequences

• European Union agricultural policy directs France
  to cut back on viviculture (grapes for wine)
  production
• Most of the agricultural land in urban fringe
  southern France is in wine-grape production
• Most of the agricultural land in urban fringe
  southern France is designated as protected
  (non-developable land)

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Policy Quandaryand Landowner Response

• Landowners are required by local planning and
  zoning to only use their land in agriculture
• But EU says they cant use their land for grape
  production (the principle viable use)
• Landowners have no basis for claiming regulatory
  takings
• What to do . . . .

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Politics of Planning

• Landowners pressure local officials to
  re-designate their lands for non-agricultural use
  (i.e. development)
• A form of Molotchs growth machine has emerged

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Unique Situation?

• Norway different part of Europe, different
  institutional situation, same basic story

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The Taking of Europe?

• No and Yes

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• No
• In the narrow legal sense
• Little chance for the formal establishment of a
  concept of regulatory takings in European law

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• Yes
• In the Broader social sense
• There is interest in a set of property rights
  related policy initiatives throughout Europe
• In selected countries, social attitudes seem to
  be moving towards a more classic U.S. concept
• There are sophisticated, well-connected advocacy
  groups and think-tanks concerned with property
  rights

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The Taking of Europe?

• The status of private property and takings is
  changing in Europe
• Though the exact form of this change has yet to
  be determined
• The change has to reconcile with long-standing
  values about
• Landscape
• Social obligations and responsibilities
• New European spatial policies

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