Justice as fairness: A Rawlsian perspective in compensating regulatory land takings

Publication Type

Journal Article

Publication Date

6-2022

Abstract

Purpose: The purpose of this paper is to articulate the inherent unfairness in compensation outcomes between landowners whose land is physically taken versus those whose land is regulated. Using Rawlsian theory as the normative standard of “fairness as justice”, the paper argues that both physical and regulatory takings should be compensated. Design/methodology/approach: Most jurisdictions invariably provide market price compensation when land is physically acquired. When land is not physically taken but merely subject to regulation, however, there is no corresponding need to compensate, even where the economic loss suffered by the landowner is the same. Adopting Rawlsian theory, this paper explains why justice and fairness in land use planning require both physical takings and regulatory takings to be equally compensable. Findings: Applying Rawlsian theory to compare compensable compulsory purchase with non-compensable regulatory takings of land show that the latter is not compatible with an ethical planning praxis. Originality/value: While Rawlsian theory has been applied in urban planning research before, this would be its first application in highlighting the apparent justice paradox which now distinguishes a physical and regulatory taking of land.

Keywords

planning law, John Rawls, just competition, land regulation, planning theory, regulatory takings

Discipline

Land Use Law

Research Areas

Asian and Comparative Legal Systems

Publication

Journal of Property, Planning and Environmental Law

Volume

14

Issue

2/3

First Page

45

Last Page

60

ISSN

2514-9407

Identifier

10.1108/JPPEL-11-2021-0054

Publisher

Emerald

Additional URL

https://doi.org/10.1108/JPPEL-11-2021-0054

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