Keywords

This book has expanded the critique of property, situating property’s origins not in Lockean political economy, but in prefeudal landscape, a matrix of custom, commons and land use. By incorporating landscape and its relation to property in the analysis of the conceptualisation of land in the common law, I considered the spatial implications of the classic hallmarks of property—individual, exclusive and abstract tradeable rights—through an examination of the contributions of foundational thinkers on property—Locke, Blackstone and Marx. In particular, I assessed Marx’s ecological critique of property rights and land in legal geographical terms.

Property diverged from its collective place-based origins, not as a result of a linear evolutionary process, or a response to natural changes in the physical world, but rather as a deliberate policy choice, executed through enclosure, colonisation and displacement. These practices were facilitated by the common law system as it gradually retreated from grounded perspectives on land in favour of abstract rights that were spatially unjust in effect. When landscape was homogenised, its distinctiveness was ascribed to individuals as the force behind acceptable land use rather than the community–environment dynamic; when its social functions were externalised, it became capable of exclusive possession, as other uses of the land become burdens, privileges or embellishments, permissible only at the discretion of the landowner when previously intrinsic to the land’s character; and when it was severed from nature or dephysicalised, landscape transcended its natural limits, becoming alienable and tradeable as a commodity to one and all.

The scale of land dispossession and the acceleration of environmental degradation have concentrated themselves within the last two hundred years of human existence, coinciding with property’s ascendance. But the spatially unjust  effects of the enclosure of the commons, plantation monoculture, Native genocide and slavery in the longue duree are easily obscured by the law’s neutral conceptualisation of property rights for sale on the global market. While property has been limited and adapted over the centuries, its central features remain, and continue to resist emplacement, valuing placelessness above all else.

The law regulates the use and access of land, and so plays a vital role in sustainable land use. However, the law defines land in terms of ownership, which is detached from the physical reality of land, land-based relations and functions that relate to people, species and ecosystems. This detachment has served to distort the understanding of land, which is ironic, since property originally encompassed socio-cultural and ecological functions of land when it was integrated with landscape. Property as currently configured therefore constrains our ability to see land beyond ownership, eschewing such insights in favour of technical solutions that are State-driven and entrench commercial and elite interests in land. Yet, we cannot transcend the limits of land. Property rights have stimulated industry, advances in technology, as well as the accumulation of wealth and the distribution of benefits to society. However, property rights have arisen in undemocratic and ecologically destructive circumstances that continue to threaten sustainable land use today, welcoming all benefits of land use while transferring the costs of private ownership as externalities to the wider public. This is not tenable, and we have to contend with the implications of conceiving property in isolation from the landscape.

Landscape is an antidote to this thinking because it offers a counternarrative to the homogenising, universalising and interchangeable nature of property rights. Acknowledging dynamic, evolving, non-ownership interests in land  offers a perspective that embraces land in all its dimensions, aligning with the reality of diversity in people, ecosystems and biota.

When land is treated as abstract space by the law, there are profound implications for communities, ecosystems and planetary boundaries. Ownership is too narrow a filter for defining and managing land when land security is of global  concern. Re-engagement with the landscape could offer a comprehensive and materially relevant understanding of the land, and challenge property’s placelessness.

The deficiency of this conceptualisation of land as property however  is only fully evident through a legal geographical lens. Embedding law within its geographic reality emphasises the absence of landscapes, through the alienation of peoples and environments that contribute to and define the land in all its complexity. A critique of property law thus necessitates this examination of the divergence between landscape and property.