Sustainable Obligations in (Dutch) Property Law

Summary

INTRODUCTION

Private law does not operate in isolation. Throughout history, private lawyers have been aware of the limits of their field. In property law, this traditionally means referring to public law – especially public law limitations to property rights. The juxtaposition so created is that private law stands for freedom and autonomy and it is public law, in the form of constitutional law or administrative law, that forms most restrictions. With the exception of the doctrine of abuse of rights the ideas surrounding the right of ownership are virtually limitless. The owner is the person that can dispose over his property in the most absolute manner.

Of course, the application of the law in practice has led to many restrictions, such as on mining or airspace, but the starting point in private law remains freedom and autonomy. So much, that freedom of ownership, including the right for everyone to hold and trade property, has become the hallmark of our economic system.

In the 21^st century, it is becoming more and more obvious that this system cannot be maintained. Not only our economic system, but also the world around us is changing. Change to the climate, more and more referred to as a climate crisis, calls on everyone and every area of society to contribute to finding a solution. Environmental concerns are becoming more and more mainstream and slowly making their way into the field of private law.

To some – some would argue a considerable – extent, existing rules of private law can contribute to finding solutions. In the context of sustainability, especially eco-sustainability, restrictions imposed on the use of property take a central role. Increasingly, the current theoretical foundations of property are challenged. Most systems of property law currently are considered to operate on the basis of a utilitarian foundation. Combined with a neoliberal economic foundation, property rights have taken a central place in the accrual of personal wealth.

This does not just concern applying the rules of property law in a different manner but requires a strong foundation to guide their application. Such foundation can be found in human flourishing theory. Human flourishing theory offers us boundaries, in the form of a balance between individual and collective interests. Central to human flourishing theory are relationships between individuals, which come in the form of obligations we hold towards each other.