Paul Babie, ‘Climate Change is Eco-Slavery: A Climate Future of Australian Property Law’

Abstract
This article considers a simple question: why should the law of property change in the face of climate change? This question receives an equally simple answer: climate change is not only metaphorically slavery, it is slavery. We are not only changing the climate; rather, we are using the environment and the climate to enslave people, including ourselves. I argue that when we view climate change through the lens of private property, we will see that it is eco-colonialism and eco-slavery. A failure to adapt the law of property leaves us stranded on a climate ‘Île des Sables’. The remainder of the article is more speculative and normative, seeking not to present positive law, but an outline of the climate future of property, one which prioritises obligation over self-interest. I argue that a theory of property ought to begin with obligation as a means of defining what we mean by the rights which form property. And that focus carries implications for property law, namely, the adoption of a socialobligation norm and its corollary, the doctrine of abuse of right. I examine the French approach to obligation in property law simply to outline the broad contours of a working social-obligation norm and the doctrine of abuse of right. This is not intended as prescriptive, nor is it exhaustive, and it is certainly not meant to provide a roadmap for implementation; indeed, even in those nations where a social-obligation norm forms part of the positive law of property, it is difficult to articulate its precise shape and scope. An attempt to do so in relation to a jurisdiction without a recognised social-obligation norm is a difficult task, one beyond the scope of this article. Rather, what I present here serves as a speculative/normative suggestion of what a social-obligation norm might look like, as a response to the challenge of climate change. The eco-slavery of climate change drives a ‘making new of the old’, or, put another way, a ‘back to the future’ moment for property law. In short, this is an article about a new way of life, one that places obligation towards the other over the self-interest of the individual. This article suggests why we should do that, and offers a proposal as to what it might look like.

Babie, Paul T, Climate Change is Eco-Slavery: A Climate Future of Australian Property Law (October 2, 2017). (2017) 43 Monash University Law Review 35-75; U of Adelaide Law Research Paper No 2017-28.

First posted 2017-10-05 05:54:32

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