Introduction: A Legal Geography of Property Rights in Land

Abstract

The opening chapter sets out the aim of the work, which is to examine the common law concept of property in relation to land using a landscape lens. The chapter distinguishes this research from other genealogies of property by emphasising the use of the legal geography methodology to critique property in terms of its relation to space. The chapter summarises the main features of modern land law. The book’s structure is outlined, beginning with an exploration of property’s roots in landscape, an investigation of the development of the classic hallmarks of property through a legal geographical analysis of classic property theory, a discussion of property’s linkages to spatial injustice and a critique of progressive property’s potential to challenge the ownership paradigm in property law.

Land undergirds human existence, providing the material conditions for sustenance, shelter and quality of life. The human past reveals a variety of practices and strategies for land use, given the diversity and instability of environments over time. It is therefore remarkable that land today is classified according to one main characteristic: ownership. Private property rights insofar as they refer to land are defined by the exclusive ownership of a bundle of rights that can be transferred by title. The legal title holder of such rights can thus exclude any non-member from the use and benefit of the land.¹ In both the common law and civil law systems, ius abutendi grants the owner the right to neglect and abuse property, which conflicts with the sustainable governance of resources² and notions of integrating planetary limits in policy-making.³

Private property was not the dominant form of land use around the world, or even in England, until about 1800.⁴ As Rachael Walsh and Lorna Fox O’Mahony note, the ‘1925 legislation’,⁵ a suite of consolidating statutes establishing the ‘modern’ framework for land ownership in England, eliminated ‘the features associated with the aristocratic, status-based land system, in favour of capitalist, contract-based free trade in land…Land was re-configured as a fungible commodity, as readily exchangeable as any other’.⁶ In the transition to a market-based concept of property rights, informal and unregistered claims to land were unacknowledged. Today, property in land can be defined as land, or a right to the land, or a social utility, leading Kevin Gray and Susan Gray to conclude that ‘few concepts are quite so fragile, so elusive and so often misused as the idea of property’.⁷

It is with these informal understandings of land disregarded by the 1925 legislation and modern land law more generally that this book is occupied, as they are directly linked to the amorphous nature of property, its present-day contradictions and incompatibilities. Current property law texts agree with Gray and Gray, admitting that classic property theory rests on precarious conceptual foundations.⁸ Nevertheless, this position has been qualified by Alison Clarke, noting that land law was incrementally developed in England with no seismic changes⁹; no particular interest prevailed once the system was rationalised¹⁰; and former colonies adapted the common law to local conditions.¹¹ This restates the common law stance in modern terms. What Gray and Gray, Clarke, and other property lawyers and scholars have all acknowledged is that property has diverged from land in a complex historical process. Yet, despite legal innovations to promote sustainable land use today, modern legal conceptions of property have proven unable to address the realities of land-driven crises such as pollution, climate change and the pressures of globalisation, and in many cases, enables them.

What was erased by the 1925 Act was not just an antiquated system of tenures, to be replaced by a modern land registration system, but ways of seeing and understanding land defined by features and processes, rather than boundaries; specifically, the relationships communities developed in interaction with their environs, and the customs generated to maintain those relationships and a way of life. Known as landscape, this cultural geographical descriptor of place implied a distinct locality that connected community, land and law for centuries and functioned as a rubric for diverse non-proprietary interests in land.¹²

This book uses the landscape lens to trace the emergence of property in English land law and the common law system, as it diverged from a cluster of place-derived interests to assume its current placeless iteration. ‘Placing’ property is twofold in meaning: contextualising property as the concept evolved in the development of real property law; and describing location-based understandings of land, in which complementary and competing spatial definitions of land represented viable non-ownership interests shaped by their material conditions—the landscapes of Great Britain, Ireland, the Americas and the Caribbean in particular. The book is therefore both a genealogy and legal geography of property, expanding previous property scholarship that charted the historical development of the term as it emerged from court records, or considered the concept indirectly in relation to the development of the common law.¹³

This spatial reading of property examines the geographical origins of the legal concept and its impact on specific places. Legal geography conceives of a broader understanding of the law beyond its doctrinal foundations, to uncover spatial assumptions and biases that are accepted or ignored.¹⁴ Formal law may derive much of its (often silent) ideology and values from pre-existing systems of lore and norms that are spatially located, influencing its development and implementation.¹⁵ Specifically, legal geography engages law’s presumed neutrality in the context of ‘spatial blindness’,¹⁶ and asks how established legal categories such as property can be reconciled with the reality of geography.¹⁷ This requires integrating the material conditions of specific places into the law. As Robyn Bartel et al. have noted, ignoring geography has political consequences; if we do not ask questions about the location of law’s impact, and therefore who it impacts, then its effects, such as environmental destruction or the dispossession and genocide of Indigenous peoples, may be dismissed.¹⁸ Geographically sensitive rules thus make the law relevant and capable of delivering spatial justice. Legal geography is also cognisant of the historical context, examining material conditions, limits and connections over time.¹⁹

In the first chapter, property’s origins are explicated, followed by a discussion of the key developments in the conceptualisation of land as property, as the common law system gradually retreated from grounded perspectives on land in favour of abstract rights that are individual, exclusive and alienable—the so-called classic indicia or hallmarks of property. The contributions of Locke, Blackstone and Marx are each analysed in relation to the classic hallmark of property with which they correspond. The implications of private property as the outcome of the legal extinguishment of the landscape are then discussed in the context of spatial injustice. I address briefly the potential of the progressive property school to contribute to a more spatially just concept of property before concluding with some final thoughts.