Reflexive law and reflexive property rights: tackling the regulatory trilemma of ecosystems conservation
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Date
24/11/2016Author
Ubilla Fuenzalida, Jaime Cristian
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Abstract
This thesis intends to be a contribution both to the sociological analysis of
law and to the analysis of regulatory approaches of biodiversity conservation.
In particular, and on the one hand, I intend to contribute to a better
understanding of the regulatory trilemma of ecosystems conservation in the context
of the local implementation of the Convention on Biological Diversity (the ´CBD´).
Specifically, I examine how local legal systems utilize traditional regulatory
instruments, and particularly traditional property rights, in order to implement the
ecosystems conservation -or in-situ conservation- measures of the CBD.
On the other hand, I intend to develop an understanding of the reflexive or
non-exclusionary nature of law, on the basis of the general theory of society of
Niklas Luhmann. This will entail the development of an understanding of the
reflexive form of law, which in turn will, first, allow us to go beyond the Weberian
dichotomy between form and substance and, second, allow us to assess the varying
degrees of social reflexivity –or reflexive capacity- of different legal forms.
These theoretical developments will then be combined with Gunther
Teubner´s post-regulatory approach known as reflexive law, which will allow us to
explore general mechanisms for enhancing mutual observation and interference
between law and society that, in turn, will be expressed on new forms of law that
should have a higher reflexive capacity to tackle the limits of regulatory law.
Furthermore, in the context of my analysis of reflexive law, I will propose an
understanding of Teubner´s idea of interference –and of the encompassing idea of
direct contact between law and society- by reference to Maturana´s and Hejl´s
ideas on the relational and social domain, and to Bankowsky’s notion of
transitional spaces, that should allow observing or better observing the interactions
between law and different spheres of society.
These theoretical understandings will allow me to better analyse the
regulatory trilemma of ecosystems conservation and, particularly, better assess the
limitations of the legal form of traditional property rights as a regulatory instrument
for ecosystem´s conservation. This will show that these property rights are
predominantly reflexive to the observations of the economic sphere but not to the
observations of other social spheres. This analysis and critique will be mainly
focused on ownership but, as will be shown, it will also apply to other traditional
property rights such as easements and servitudes.
Finally, it will be on the basis of all these understandings and
considerations that I will propose and assess the creation of a new property right -
the conservation property right- as a reflexive law mechanism that should allow
broader social interaction amongst different spheres of society for the purpose of
better tackling the regulatory trilemma of ecosystems conservation.