I had the privilege of meeting Professor Christian Mouly a few years before his untimely death at 47 He did us the honour to speak at our first conference of Aix en Provence in June 1996 and its brilliant communication ‘The place of ownership among the human rights’ had moderated a debate including Jean-Yves Cherot, Professor of public law.
He invited me to speak at a seminar at the Faculty of law of Montpellier, which, as an alumnus, I rediscovered with emotion and pleasure.
Christian Mouly’s premature death delayed the participation of private law to the evoluton of French environmental law–today the quasi exclusive domain of public law. The fact that in this remarkable article he mentions Richard Epstein shows his openness to Common Law and his adherence to the principles of environmental liberalism (Free Market Environmentalism)
Today a new generation of Jurists emerges to deal with the challenges of the management of the environment by relying less on government regulation but more on a renewed conception of property rights and contract–the traditional guarantors of liberty and prosperity.
This is a wonderful and premonitory paper to be read and meditated by all who do think that only government, by weakening private property until its eradication, will solve environmental problems.
The opposition between private property and public property is old. It is now renewed by a displacement of the arguments of their effectiveness to their justice. Despite the attraction that exercises public property to try to reach the mirage of social justice (attempt that couldn’t be that unsuccessful because of its theoretical and practical bases), experimentation and theory show most justice of private property based on its modes of operation and its result or consequences (procedural sense of justice to a legal institution), although in addition, because it is just, it better reduced human miseries, especially those of the poorest. Comparison and reasons for its superior justice are provided by history (I), the economy (II), morality (III), which leads to a search for the criteria to distinguish public ownership of private property (IV). The debate ended on the greater justice of private property can find an exit in the application (and justification) of the subsidiarity principle, incorporated into the Treaty of the EU, which leaves the less efficient and less fair property public little room, and for some of them only for a transitional period.