Land, the Social Imaginary, and the Constitution Act 1867 (Qld)

Abstract

Answers to property questions must be integrated into a state’s property institution. That institution is a product of the state’s legal and political arrangements. In law and in society, property questions are likely to be contested, dealing as they do with “property as things” and “property as wealth”. This chapter analyses, with reference to the real property institution established when the colony of Queensland was created in the mid-nineteenth century, legal and social (including political) theory of J.W. Harris, Charles Taylor, and Jeremy Waldron relevant to allocation of property as wealth. Early constitutional provision, enacted to give effect to the instrumental values of the “idea of order” in the new colony, is found to have continuing relevance. This finding demonstrates the importance of due appreciation of the historical evolution of a property institution if answers to property questions—in Queensland, generally in legislative form—are to allocate property as wealth on just and principled lines. It is argued that, as in Queensland, an appreciation of a state’s property institution—including the deeper normative notions and images of the common understandings of the state’s idea of order—is essential to amendment of legal and political arrangements.