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Property pluralism and the partial reflexivity of conservation law: the case of upland commons in England and Wales*

Margherita Pieraccini

Keywords: conservation law; pluralism; phenomenology; property rights and reflexive law

This article is concerned with rights and property paradigms within the context of conservation law in England and Wales. Property is a relational concept. However the ways in which its relationality unfolds are multiple, as are its impacts on the conservation of nature. This article argues that property's relationality can be interpreted by reference to two distinct paradigmatic views: the first emphasizing its socio-legal relationality, the second focussing on property's ecological relationality. The first paradigm finds its justification in modern property law theory and culminates with a conceptualization of property as stewardship. The second paradigm, anchored in phenomenological thought, places the accent upon practices, movement and dwelling; it emphasizes the ecologically embedded nature of property by defining property as the contingent product of humans and non-human animals’ interactions with the land. It is argued here that UK conservation law operates with an understanding of property stemming uniquely from the first paradigm, yet the context it seeks to regulate is also permeated by the manifestation of ecologically embedded property. What counts as property is therefore contestable, and certain answers are marginalized by current conservation law. This article shows that the marginalization of ecologically embedded property rights is problematic from an environmental perspective. Using the example of upland common land in England and Wales, it is demonstrated that without acknowledgment of the presence of the two meanings of property, conservation law is unlikely to achieve full environmental effectiveness. Some reflections are also offered in relation to the implications of property pluralism for the discourse on the right to property as a human right. It is concluded that reconciliation between the two property paradigms can be achieved by accentuating the reflexive elements in conservation law.

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