Ecological Property
Rodrigo Míguez Núñez
Ecological Property (EP) constitutes a transformative reconfiguration of one of the foundational institutions underpinning the accumulation and production of wealth in the Western economic and legal and economic tradition. Its purpose is to overcome the classical and individualistic conception of absolute ownership in order to propose a responsible management of land and natural resources, grounded in the interdependence between persons, things, and ecosystems. EP is based on the premise that there exists a natural continuity and reciprocal dependence between human beings and non-human nature, requiring the law—especially private law—to transcend the traditional dualism between subject and object and adopt a less atomistic legal grammar centered on the relevance of the ecosystemic bond (Míguez Núñez, 2025). In this sense, EP is not limited to configuring a right of appropriation, but rather presents itself as a web of biological, cultural, social, and economic factors that interact with one another, demanding an interdisciplinary methodology capable of integrating law with ecology and environmental sciences (Davies, 2023). The principal objective of this new way of understanding the relationship between person and thing is therefore to align the content of property with an ecological rationality, recognizing that the legal function of land and portions of nature is not exhausted by techniques of appropriation or by the satisfaction of economic interests, but instead incorporates, as a guiding criterion of the entire discipline, the duty to protect the interests of the “more-than-human” world and of future generations (Schuijers & Bush, 2023).
From a historical and philosophical perspective, the concept of EP emerges as a critical response to the paradigms of modernity that reduced land to a “fictitious commodity” (Polanyi, 2001 [1944], pp. 75-76) or to a “mute fragment of the cosmos” (Grossi, 2012, p. 1070). While thinkers such as Kant, Locke, and Schmitt situated occupation and labor upon the land as primordial acts founding law and sovereignty—a notion followed by the geometric codification of space (Pistor, 2019)—the contemporary ecological vision proposes a genuine ontological shift: against the abstraction and dematerialization of portions of nature in traditional legal discourse, where they are conceived merely as support for the exercise of the dominus’ powers, ecological property reclaims the physicality of territory, that is, the relevance of matter and of its constituent elements.
A paradigmatic expression of this ecological turn can be observed in the legal framing of the asset that historically represented the ideal model of exclusive and compact appropriation: land. Its legal understanding abandons the traditional characterization of soil as an inert element subordinated to human artifice in order to recognize it as a vulnerable, non-renewable ecosystem essential for biodiversity and capable of providing fundamental ecosystem services, such as carbon-cycle regulation, water filtration, and biomass production. At the basis of this transformation lies the role of conservationist philosophy, which responds not only to economic demands, but also to scientific, cultural, aesthetic, moral, and even affective concerns aimed at integrating the diverse elements of the “territorial community” within a perspective of symbiotic and responsible relations between human beings and the environment (Freyfogle, 2017). The transition from land-as-thing to land-as-ecosystemic-resource thus finds its foundation both in the reception of environmental ethics and “socio-ecological systems” theory, and in the reinterpretation of classical categories of private law in light of these new conceptual coordinates (Schuijers & Bush, 2023).
The legal framework of EP draws upon important international and supranational developments, such as Goal 15 of the United Nations 2030 Agenda, the European Union Soil Strategy for 2030, the European Green Deal, and the European Nature Restoration Regulation. These instruments promote a vision of integral conservation that recognizes the intertwining of natural and human evolution. In this context, property can no longer be understood as an absolute power of abusus or destruction, but rather as an “acquired responsibility” to care for the land. The classical relation of domination is thereby reversed: the owner’s powers become functionalized toward the protection of territory, while the notions of duty and “internal morality” acquire particular significance in the management of portions of nature and of the artificial goods affecting them.
Two principal consequences derive from this approach. On the one hand, EP no longer refers to a closed relationship between an individual and a thing, but instead configures itself as a relational system of governance, open to the community and grounded in rights and duties of access, preservation, and transmission of natural resources to future generations. On the other hand, environmental protection acquires the status of a foundational value of property law, generating an active duty of stewardship upon citizens through the application of the principle of horizontal subsidiarity, that is, the State and Public Administration’s duty to encourage autonomous initiatives from the citizenship in the development of general interest activities, rather than undertaking or monopolising them directly. In this sense, the limit of property is no longer understood exclusively as an external restriction imposed in the interest of neighbours, the community, or the State, but rather as a dimension inherent in the material and ecological reality of the asset itself. Consequently, the content and limits of property tend progressively to be defined according to the “carrying capacity of ecosystems,” that is, the biological threshold beyond which the resource would suffer irreversible degradation, concerns connected to the very ecological function that Law acquires (see Ecological Function of Property).
Another fundamental aspect of EP is the concept of “ecological citizenship”, which shifts the debate from a strictly legal dimension toward an ethical and educational dimension (Dobson, 2003). EP requires the owner to act as a “guardian of nature” or steward of a common heritage, an idea that parallels the Anglo-American notion of environmental or land stewardship. This perspective is grounded in the principle subordinating private property to the universal destination of goods and connects with proposals advocating a “virtuous” and “wise” use of land capable of ensuring the “flourishing” of both human and biotic communities (Alexander, 2018, pp. XIV FF). In this regard, the most advanced doctrines and legislations—such as those of Colombia, Slovenia, Sweden, Argentina, China, Brazil, and Ecuador—progressively recognize that the social function of property is also, and perhaps today primarily, an ecological function. This entails the imposition of positive obligations (in faciendo) directed toward maintaining ecosystem quality and incorporates the ecological dimension as an inherent content of private property for the benefit of the biotic community as a whole.
The ecological function of property expresses a profound transformation in the understanding of the relationship between law and material reality, insofar as the naturalistic and ecosystemic characteristics of the asset come to be assumed as the foundation of the relational configurations articulated around it. The property paradigm thus tends to reorganize itself around the interconnection and interdependence characteristic of the elements of non-human nature subject to appropriation. From this transformation two complementary trajectories emerge: the growing valorization of the ecological dimension of the “social agreements” concerning things, and the progressive recognition of the epistemic relevance of knowledge relating to portions of nature and ecosystems. Consequently, a necessary correspondence emerges between the ecological function of property and the ecosystemic functions of the object of the right, which are assumed as internal parameters for evaluating the sustainable use of resources. In this context, the social function acquires a renewed configuration whose structural flexibility manifests itself in its capacity to adapt to normative and factual transformations, orienting the legal order toward a reinterpretation of the content and limits of ownership in terms of “resilience” (Akkermans, 2022).
Another central element of EP is the recognition of natural goods as commons, a question that opens the discourse of “multiple enjoyment.” This implies, for example, that different interests may converge upon the same portion of land: the individual interest of the owner and the collective interest linked to preserving ecological functions. The most attentive scholarship has connected this coexistence to categories such as “trans-subjective rights” (Femia, 2018) or “trans-appropriation” (Ost, 2003), concepts that transcend the individual sphere in order to protect common non-appropriative interests, such as the right to a healthy environment or to climatic balance. Thus, goods with an evident diffuse dimension—such as soil, forests, or watercourses—come simultaneously to constitute the support of individual “patrimonial goods” and collective “natural goods,” a circumstance that requires reconsidering the scope of the right to exclude within property law (see Public Trust Doctrine).
At the operational level, the practical implementation of EP requires innovative private-law tools capable of overcoming the administrative logic of “command and control” and instead fostering cooperation and private autonomy. Among these are contractual and market-based instruments—not without criticism regarding new forms of commodification of nature—such as Payments for Ecosystem Services (PES), land associations, and contractual measures promoted within the frame of Red Natura 2000. The contract thus acquires an ecological dimension (see Ecological Contract) insofar as it becomes an instrument capable of functionalizing property and recovering spaces of solidarity and sustainability, limiting contractual autonomy whenever it may compromise biodiversity or ecosystems (Pennasilico, 2018).
Likewise, EP proposes a reinterpretation of classical real rights in re aliena (that is, those rights which confer upon a person a direct and immediate control over property belonging to another owner) from an environmental perspective. Emphyteusis, the real right whereby a landowner grants another person the right to use and enjoy the property for a very long period or in perpetuity, in return for the payment of a periodic fee and subject to the obligation to “improve” the land, for example, is being re-evaluated as a tool for conservation management, where the obligation to “improve” the land is now linked to increasing biological fertility and restoring natural balances. Similarly, the easement (that is, the real right encumbering a property – the “servient tenement” – for the benefit of another – the “dominant tenement” – belonging to a different owner, through a functional limitation on the use of the former) is transformed into an “ecological” or conservation easement —following models developed in US law—, through which one property can benefit from the ecosystem services of another, whilst ensuring the permanence of environmental links thanks to the inherent nature of real rights.
From a critical perspective, linked to currents of radical ecology and the Earth Jurisprudence movement, it has been argued that the PE does not truly transcend the modern logic of domination over nature, but merely reformulates it in environmentally sustainable terms, which are even susceptible to being exploited in greenwashing practices or new forms of “green capitalism”. Although it introduces ecological limits on the exercise of property rights, EP continues to conceive of nature as an object that can be appropriated and managed by humans, thereby maintaining an anthropocentric legal structure in which the non-human remains subordinate to human interests, now under the rhetoric of conservation and sustainability.
Despite these criticisms, it can be asserted that the aim of EP is precisely to transform “from within”—within a system that cannot deny some form of anthropocentrism—one of the cardinal institutions of appropriative capitalism, by altering the way we understand our relationship with the non-human: no longer in terms of absolute domination, but of stewardship and ecological responsibility. EP ultimately defends a genuine refoundation of property: the transition from a predatory logic toward a generative and protective one, in which ownership is understood as a relationship of care, responsibility, and respect among the different members of the Earth community (Kelly, 2012).
At its deepest level, EP expresses the idea of an “animated Earth,” open to cooperation and capable of sustaining life through reciprocal relations among subjects, objects, and ecosystems; an Earth of which law itself forms an integral part, embedded within and shaped by the very ecology in which it operates.
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