RPT draws insights from Fineman’s ‘Vulnerability Theory’, particularly her concepts of vulnerability and resilience, and her examination of institutional vulnerability, including that of the state itself. Building on Fineman's framework, we identified a crucial third insight that serves as a foundational aspect of RPT: acknowledging the state's vulnerability necessitates recognizing that states (and governments) act to enhance their own resilience, reinforcing their authority and legitimacy particularly amid conflicts or crises. This insight is essential because it reveals that states are not impartial mediators in property disputes. It highlights the realities of state responses to property issues, where states must balance their responsibilities to adjudicate and allocate resilience to competing individuals and institutions with their own need for resilience. Ultimately, this perspective allows us to develop a realistic, context-sensitive understanding of state action in the governance of complex property challenges.
Fineman’s Vulnerability Theory challenges the liberal tradition's portrayal of the "autonomous and independent subject" by instead basing legal subjectivity on the inherent, universal, and constant vulnerability of "real-life human subjects." Fineman contends that as "vulnerable subjects," we are both "embodied and embedded." Embodiment refers to the tangible, physical vulnerability that defines our human condition as one of ongoing and unavoidable vulnerability. Everyone—whether investors, owners, tenants, or squatters—seeks to alleviate, compensate for, mitigate, and manage this inherent human vulnerability through the acquisition or accumulation of 'assets of resilience' (we will return to this theme in a future blog focused on Resilience). Our capacity to gather these assets is determined by our social embeddedness within the institutional structures and relationships, such as markets and families, that provide resilience against our embodied vulnerability. While human-embodied vulnerability is constant and universal, resilience is specific to each individual, emerging from the assets or resources one inherits, accumulates or utilizes throughout life and through interactions with and access to societal institutions.
The second insight we draw from vulnerability theory addresses the inherent vulnerability of social institutions, including 'the state.' Fineman posits that, similar to individuals, the institutions we develop and rely on for resilience—such as markets, families, welfare systems, private property, and states—are not fail-proof shelters, even in the short term. They are also susceptible to issues like decay, manipulation, corruption, and decline. She notes that these institutions can falter due to factors such as market fluctuations, evolving international policies, institutional and political compromises, or human biases. Over time, even the most established institutions may prove unstable and vulnerable to challenges from both internal and external forces. This notion of 'institutional vulnerability' is well-known to liberal property theorists who often invoke the need to protect and promote the 'institution of private property'. The assertion that one of the factors shaping property law is the need to protect and sustain the institution of private property suggests that, without proper normative guidance, legal and policy decisions could jeopardize this fundamental liberal institution.
Fineman centers the role of 'the state' in establishing and upholding the economic (e.g., market), social (e.g., family), legal (e.g., constitutions), and political (government) institutions that generate and distribute resilience. These resilience-building institutions are created, maintained, regulated, legitimized, and their authority over individuals is enforced through law. While Vulnerability Theory is a ‘theory of change’—seeking to promote or advance specific normative outcomes—RPT is a ‘change theory’—focused on developing empirically and theoretically grounded accounts of how change happens (see Paradigms of Property Scholarship blog). Resilient Property Theory (RPT) explores the implications of the state's own institutional vulnerability, focusing on both the state's role in distributing resilience resources (its 'other-regarding' role) and its own claim to resilience (its 'self-regarding' role). In this analysis, it is crucial to differentiate between 'the state' as a lasting political entity and the current government, acknowledging that liberal property theories often blur the distinction between ‘the state’ as the collective sovereignty of 'we the people' and the state as government. However, this distinction is essential for RPT for two reasons. Because, although state’s rarely fail, government failure—when one governing party administration is ousted and replaced by the opposition—is regular. While some may find it desirable for governments of one or another political stripe to fail, more of us can agree that it is preferable, as a normative principle, that democratic states do not fail (for example, by tipping into undemocratic, authoritarian or totalitarian states). Recognizing the state's own resilience needs, and understanding the normative significance and practical constraints of these needs in guiding state-backed allocations of property resilience to competing claimants, sets RPT apart from traditional liberal property theories, whether 'conservative' or 'progressive'.
The idea of adaptiveness to changing circumstances is a central component of “resilience,” as this concept has been developed in the context of sustainability theory. “Resilience” is defined as the capacity of a system to respond to, and rebound or recover from, shocks (sudden or extreme events) and stresses (long-term trends that undermine the system) without changing its basic state.99 Resilient systems have the adaptive capacity to remain in a functional state;100 to avoid “tipping” into an altered state, by maintaining equilibrium in the face of challenges or crises. A related point can be made about the resilience of the frames or paradigms that contain and constrain state responses to property problems. The “hinterland” or “nomos” of property norms shapes state responses to property crises. The property nomos in each of the jurisdictions we examined comprised a complex hybrid of norms, providing a range of latitude for different types of response to property problems. This normative hybridity also supports adaptiveness in moments of crisis; and this adaptiveness enables states, governments, and property systems to be resilient: to recover, and to avoid tipping into an altered state. Hybridity supports flexibility, while the scaling of state responses across the multilayered institutions of the state enables states to meet different resilience needs.
The dynamic processes of stability and change that produce adjustments within hybrid normative orders - the processes through which legislation, judicial interpretation, and doctrinal development shape and reshape the content of property law as it tracks political movements over time – tend to be crowded out by the dominant political mood in any given moment. The systemic importance of normative pluralism is not fully reflected in the dominant, or “official,” narratives of property law, which typically tell simplified stories about property that elevate certainty over flexibility, predictability over adaptiveness. These narratives have important implications for property theory’s moral reasoning. Most notable, perhaps, as we reflect on the importance of adaptiveness, flexibility, and innovation to maintain equilibrium and enable recovery in times of crises is the narrative that locates the essence of property in the “property values” of stability, certainty, predictability, and the protection of the status quo..
Van der Walt described the dominant normative order – the orthodoxy – as imposing an: ‘established hierarchy … on law and meaning by the courts and the state for the sake of clarity, certainty and predictability … established and imposed, as Cover so compellingly argued, through violent suppression of alternative views, alternative meanings, alternative laws … [that] can only be established by violently suppressing some of the energy and diversity that is at work in a legal system.’ That energy and diversity, plurality and hybridity – distributed across scales of governance – enables property systems (and the states that constitute, maintain, and rely on them) to resist and overcome institutional, structural, or dogmatic inertia or polarization. It underpins the normative orientation of RPT toward equilibrium.
Paying attention to equalibrium within systems then also means we must pay attention to gaps in resilience and also to resilience drainage. Both gaps and drainage point to imbalance in institutions that may signal structural failure.
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