Foundations

Why should the law create a new property right for conservation? Two complementary justifications support the conservation right: a normative justification, grounded in rights and liberties, which makes it a robust institution of private law; and a socio-legal justification, grounded in the post-regulatory rationality of reflexive law. Together with its economic rationale, they explain why it was designed as an affirmative right rather than as a restriction on land.

1. Normative justification

The conservation right is not an interventionist public-policy instrument. Its justification lies in rights and liberties. Following the interest theory of rights of Joseph Raz, as applied by Jeremy Waldron and James Penner, the interest that justifies it is:

“the interest of the parties to freely regulate the conservation of environmental aspects of a property.”

Ubilla Fuenzalida (2016b), p. 164. This interest may be non-patrimonial: what matters is that conservation can be valued, not that the holder’s interest is economic.

From a liberty of the owner to a faculty to conserve

Ownership already contains incidents that amount to a “right to conserve”. The conservation right reconfigures and bundles them into something new:

1. The owner’s mere liberty to conserve (a privilege, in Hohfeld’s sense) becomes a right whose only and necessary content is to conserve, with correlative duties on the property.
2. That right becomes autonomous and is elevated to a faculty or potestas — the ius conservandi.
3. “Conservation” takes its meaning from environmental law: ensuring the permanence and regeneration capacity of the environment (Law No. 19.300) and its maintenance and recovery (Convention on Biological Diversity).
4. Assets that were mere attributes of a property — and invisible to private law — emerge as legal things for the purpose of their conservation.
5. The value of conservation enters private law as a dimension of value distinct from use, enjoyment and disposal. The conservation right is therefore a sui generis real right, not a right of enjoyment.

Ecosystem functions are proper legal things

2. Socio-legal justification

The conservation right is a reflexive legal form. Its design rests on the theory of reflexive legal forms developed by Jaime Ubilla, which extends Gunther Teubner’s reflexive law and draws on Niklas Luhmann’s systems theory and George Spencer-Brown’s laws of form.

The regulatory trilemma

Biodiversity law has suffered repeated regulatory failures. Following Teubner, they take three forms, which conventional property rights and conservation easements tend to reproduce:

1. Mutual indifference between law and society: legal instruments fail to translate society’s expectations about nature, and social spheres fail to internalise the law’s purposes.
2. Disintegration of society by law: for example, communities displaced from their habitat, with the loss of generations of ecological knowledge.
3. Disintegration of law by society: the capture of law by particular interests or discourses.

A fourth generation of environmental regulation

A new type of real right

1. It recognises private interests that come from science, ethics, religion, aesthetics and culture — not only from the economy — and so helps reconcile public and private interests.
2. It is the first real right whose normative core reflects social orientations, not only individual autonomy; in other property rights these appear only as external limits, such as the social function of property.
3. It expresses society’s expectations about the value of biodiversity through an affirmative legal form, instead of distorting them through restrictions such as easements or real covenants.
4. It is oriented to conservation, not to use, enjoyment or exploitation: it is a right to conserve the environmental patrimony, not to own it.
5. It is not defined by exclusion: its objects are openly accessible and non-rival, benefit the whole community, and several titleholders — public and private — can hold rights over different functions of the same property.

Public and private interests are thus understood as a reflexive continuum, allowing many combinations, rather than as a binary opposition.

3. Economic rationale

• Lower transaction costs. Conserving a site no longer requires buying it. The owner keeps the land, and several titleholders can finance the conservation of the same space (Ubilla Fuenzalida, 2003).
• Conservation as wealth, not burden. Real rights have always served the circulation of wealth. An easement-type charge obstructs it — which is why the Chamber of Deputies capped the duration at 40 years. An affirmative right creates and circulates new wealth, which justified its indefinite duration.
• Natural capital and new markets. As argued before the Senate Constitutional Commission, the conservation right captures intangible values that other real rights fail to capture: “a new wealth, which has been called natural capital, which, following the principle of wealth circulation, can generate new markets.”
• A new answer to the tragedy of the commons. The debate since Hardin has looked only at tangible, productive uses and at a binary choice between ownership and State regulation. The conservation right adds a right oriented to conservation and to intangible functions, opening room for cooperation among many stakeholders.
• De-commodification, not propertisation. It is not ownership of nature but a faculty to conserve it. The assets it creates are openly accessible and non-rival, and the State itself can hold conservation rights where public policy requires it.

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Bulletin 2 of the Commemorative Series, Philosophical, sociological and economic foundations, will be published on 17 November 2026. See the Library.