Planning, Law, and Property Rights: A US–European Cross-national Contemplation

Abstract

Globalization today encompasses multinational dialogues on the appropriate role for planning in mediating relationships between individual and community, state and citizen, government and market, and people and property. Yet confusion persists as speakers from one country attempt to convey concepts different from what listeners from another country hear. This paper provides a cross-national contemplation on the sources of that confusion, comparing the USA to Western Continental Europe, primarily Germany. Americans and Europeans engage fundamentally different worldviews in promoting progress while reconciling harms, stemming from different philosophical traditions that can be broadly characterized as a Millian versus a Hegelian liberalism, respectively.

Notes

1. The authors of this paper are colleagues of different national origin at the University of Michigan. Norton is from the USA and has studied primarily ecology, land-use planning and development management, and planning law, while Bieri is from Switzerland and has studied primarily urban and real-estate economics, public finance, and economic geography. This paper was prompted by our ongoing conversations and recurrent ‘ah-ha' moments upon realizing that we have yet again been speaking past one another. Some of this confusion undoubtedly stems from differences in disciplinary perspective, but much also clearly stems from our different national cultures and expectations.

2. There is an inherent challenge here in labelling philosophical propositions according to philosopher, first because the philosophers discussed here were so prolific and their philosophizing so nuanced (and sometimes seemingly self-contradictory), and second because subsequent scholarly characterizations of their work situate their propositions in different ways (cf. Germino 1972; Ryan 1984; Sandel 1982). Nonetheless, acknowledging that variation in interpretation and meaning across scholarship, we believe the apt way to characterize the American liberal tradition particularly in juxtaposition to the Germanic ‘Hegelian’ liberal tradition, and particularly in the context of planning, law, and property rights, is as ‘Millian liberalism'.

3. In this section we do not repeat citations to source materials provided above, but we do cite additional sources as appropriate.

4. Formally, the US dual federalism emerges from the Tenth Amendment to the US Constitution, whereby the national government is supreme only to the point where reserved state power is invaded. The Tenth Amendment thus arguably constitutes a judicially enforceable limitation on the Supremacy Clause (Fellman 1948), giving rise to active tension between federal authority and states' rights that are as unthinkable in a European context as they are relevant for US federalism debates today (e.g. in the medical marijuana laws or national health care legislation).