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Journal of Comparative Urban Law and Policy

Abstract

This article is a comparative analysis of property systems and their social dimensions between the United States (U.S.) and the European Union (EU). Throughout the article, we show how the fees and development taxes applied in the U.S. refer to an ex ante rationale assumed by private owners to compensate communities for land transformation or environmental impacts, while inside the EU, the political consensus is responsible for the imposition of limits in ex post abuses of ownership. Either in public administrations, or in the Council of Ministers of the EU, the social function of property is better understood as a sensitive matter of national governments that may affect the harmony of the organisation (Trstenjak, 2017). First, we point out the importance of the social function of property in historical terms with the intellectual debate introduced by Léon Duguit on the internal limits of ownership. Second, we apply an interpretative methodology to distinguish the meaning, use and totality of law from experience (Ferrajoli, 2008). Third, leading U.S. and EU case laws about disputes involving impact fees, development taxes and the juridical category of social dimension are discussed. Our study concludes that the U.S. legal system is mostly linked to the notion of fees and taxes to tackle abuses in urban development against the environment. The American federalist pact provides public administrations, local, and state courts with robust discretionary power. In contrast, we observed that the EU tends to be more anarchical in mechanisms of enforcement when compared to its institutional legal organisms with supranational binding decisions (Muir, 2015; Wendt, 1992).

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