Liberal property and lived property: a critique of abstract universalism in the human right to property

This study argues that the liberal hold on the human rights discourse leads to a definition of the right to property disconnected with property relationships as they are experienced on the ground. Abstract universalism prevalent in international human rights law creates an erroneous conflation of liberal property rights (individual and exclusionary rights over commodified objects) and the human right to property. The latter ought to be understood within the context of the human rights mission which, this thesis proposes, is to enable people’s meaningful social participation. Indeed, human rights cannot exist in a vacuum. They are responses to concrete social struggles and interactions and should reflect needs expressed by people within these circumstances. Two consequences emerge from the claim of human rights’ sociality: first, the definition of a human right to property ought to draw its meaning from lived experiences in location, in particular those of marginalized and underrepresented people, not abstract reason; and second, the relative importance of property in a person’s life ought to be evaluated within the complex network of relationships that make up a person’s lived experience instead of assuming its centrality as liberal theory suggests. This exploration does not reject the idea of universalism in human rights law, but embraces a bottom-up version of universalism, in which shared values are drawn from a plurality of voices in a dialogical manner.The confusion between liberal property rights and the human right to property is present in legal theory as well as international practice. Yet, closer scrutiny exposes multiple instances where property’s liberal premises were set aside in favour of a definition based on the protection of a minimum standard favouring social inclusion. Regional human rights case law shows for instance how giving space to personal stories of property leads to adopting unorthodox but concrete meanings of property, whether it is by recognizing ownership of land in the absence of title based on neighbourly relationships, or by establishing hierarchies based on the importance of property for survival and social cohesion, for instance for peasants or displaced people. But exploring lived experiences in location also reveals the limits of qualifying all relationships with the material world as property, for instance for the homeless and tenants who are excluded from property’s benefits or for indigenous peoples for whom claims of autonomy are only imperfectly encapsulated by the language of property. This is why human rights violation ought to be approached in an integrated manner, emphasizing concrete needs over abstract rights. Ultimately, a focus on lived experiences as source of universal standards means that human rights are best understood as procedural (asking questions) rather than substantive (proclaiming truths), and that rights language ought to remain dynamic and adaptable

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