Extinguishing Landscape, Creating Property: Property and Spatial Injustice

Abstract

This chapter reflects on the ways in which loss of place or landscape destruction can be considered intrinsic to property’s formulation in the law. In summarising the relationship between the common law and land by examining property’s impact on various geographic locations, it becomes clear that private property has benefitted from undemocratic and environmentally harmful activities that have concerning implications for sustainable land use. Failure to consider enduring people–place relations developed in response to local limits means that property operates without regard for the physical environment, including its cultural dimensions, and this has implications for human rights and ecological resilience. The chapter closes by identifying this transition from landscape to property as spatial injustice that is upheld by the law.

Property has been abstracted to the point where it is illusory.¹ Indeed, Margaret Davies denounces property by stating:

It is evidence of the perniciousness and emptiness of this concept of property that it is extendable equally to a person (through the now-defunct concept of slavery) and to a plastic bucket, and that it can imagine land as two-dimensional space without ecological characteristics or heritage.²

This abstract logic of property is symptomatic of the law’s perceived impartiality, which relies on the denial of geography to be universally applicable. Yet, acknowledgement of geographic disparities is central to spatial justice. It follows that property’s ascendancy coincides with the destruction of landscapes, which were defined by locally specific uses and interests in land.

The accretion of private property rights in the common law thus required the elimination of the social and cultural dimensions of land. Locke, Blackstone and Marx were not familiar with landscape as a legal geographical concept, but their contributions to property theory are relevant to the integrity of land. Locke focused on the individual using his labour to transform the commons into private property. This influenced the perception of common resources, the core of the working landscape, as primitive, undeveloped and homogenous. Garret Hardin’s influential article on the ‘Tragedy of the Commons’,³ relied on this misconception of the commons as an open resource situation inherently incapable of management, while positioning private property as its superior alternative, though Hardin later recanted and revised this thesis.⁴

Enclosure of common land was achieved through Parliament (the Enclosure Acts) and the courts. This had far-reaching biogeographic and social consequences, facilitating the decline of diverse communally managed areas in England. The American colonies in particular served as the loci for Locke’s theories of land acquisition and property, where commons were ‘wasted’ and required individual improvement to generate maximum profit. At home and abroad, enclosing land served to flatten ecosystems, interests and communities into the imperial landscape from which property rights could be created. European settlers ejected Native Americans from their own land in violent and oppressive ways, also masked as legal transfers on the land market.

Like Locke, Blackstone was well versed in the fluidity of interests in land and discussed them in his chapter on tenures.⁵ However, Blackstone relied on medieval legal sources on feudalism to legitimise the common law, contrasting feudal Norman values with ostensibly liberal, enlightened English ones. He paid scant attention to local lived-in land practices and customs in England, denoting them encumbrances against the landlord, which impaired his ability to exercise full possession and enjoyment of the land. These uses were no longer proto-regulatory mechanisms developed by commoners to ensure their independent way of life, but constraints or burdens upon the private landowner. Blackstone thus contextualised the development of property as deliverance from the ‘slavery’ of feudalism and viewed the assertion of private property rights through the right to exclude as an attempt to restore the original liberties of the Saxon constitution.⁶

Marx, unlike Blackstone, emphasised the social relations that belied the tenurial system in feudal England, and examined the costs of the loss of these mutual social relations when people were dispossessed of land, now celebrated as a key characteristic of property: alienability. Land’s capacity for alienation accompanies the abstraction of land or the complete extinguishment of the landscape. The starting point is the dephysicalisation or rift between people and nature. Marx questioned the ecological costs of capitalism through its deployment of property rights in the accumulation of wealth. In his critique of capitalism and the idea of the metabolic rift, Marx addressed the concept and impact of the human loss of place-defined relationships in land. Colonies such as Ireland and those in the Caribbean found themselves at the frontier of capitalism, where land was exploited beyond its physical limits. The metabolic rift thus occurs when land has been so dephysicalised that there are no limits to exceed—and this enabled the ecological collapse that preceded Ireland’s Famine and the destruction of Caribbean island ecosystems and societies via plantation agriculture.

These examples of landscape destruction were accomplished through the delineation and imposition of property rights. The emphasis on law’s abstract logic enabled the dismissal of geographical disparities wherever property was deployed. This is demonstrated by the inability of land law in various jurisdictions to respond to locally specific conditions, resulting in spatial injustice. But, it is difficult to challenge property when it acts as a filter constraining the way land itself is understood. Private property rights are aligned with liberal democracy, impoverishing property discourse by framing private property as the ideal institution keeping repressive monarchy at bay at one end of the spectrum, while avoiding collectivist agriculture models imposed by the State at the other.⁷

The inability to recognise distinctive communal land regimes explains the continuing failure of the law to regulate the commons adequately, since prescribed management mechanisms treat all commons as homogenous and interchangeable.⁸ The influence of the American concept of wilderness on international cultural heritage law and environmental law can be seen in the protection of national parks around the world that were often originally lived-in landscapes from which Native peoples had been expelled, as was the case with Yosemite and Yellowstone National Parks.⁹ Privatisation of public space has spatial implications, especially in small island states where developers view land as a commercial asset, and planning permission is often granted without considering non-ownership interests of local communities that affect their livelihoods and continued existence.

Landscape now exists only in the scenic sense (such as a landscaped garden) because its representative qualities for the community have been reduced to the pictorial. Other ways of construing land have not been extended beyond the Indigenous context, which means that the law treats collective understandings of land as an exception. Attempts at defining collective or communal land practices are often fixed in time, imposed from the top down (the écomusée model of a heritage landscape) or performative (a commune) or are absorbed into ethno-nationalist extremist views.¹⁰ These all fail to capture the dynamic sense of the flexible working landscape as a nexus of land, law and people.