Property

Meanings, Histories, Theories

Margaret Davies

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781134087181
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This critique of property examines its classical conception: addressing its ontology and history, as well as considering its symbolic aspects and connection to social relations of power.

It is organized around three themes:

• 
  
  

• the ways in which concepts of property are symbolically and practically connected to relations of power
• the 'objects' of property in changing contexts of materialism
• challenges to the Western idea of property posed by colonial and post-colonial contexts, such as the disempowerment through property of whole cultures, the justifications for colonial expansion and bio piracy.

Dealing with the symbolism of property, its history, traditional philosophical accounts and cultural difference, Margaret Davis has written an invaluable volume for all law students interested in property law.

Chapter 1
Critiques

INTRODUCTION

I can’t help it, I am going to begin the book with a cliché, nothing less than the most obvious starting point for a book on property and the most over-quoted piece of prose on the topic, by William Blackstone:

There is nothing which so generally strikes the imagination, and engages the affections of mankind as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right. Pleased as we may be with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built.

(Blackstone 1766:2)

There are a number of good reasons for this being such a well-known quotation. It raises, in a very succinct form, quite a few of the issues which many discussions of property raise. For instance: are ‘we’ (meaning in this context the Western liberal ‘we’) really as obsessed with property as Blackstone claims? If so, why? In what sense is it a ‘sole and despotic dominion’? Can only ‘external things’ be property, or can we own ourselves? Is it really about such ‘total exclusion’ of everyone? Why are we so wilfully blind to the justifications for property and so dogmatic about the rights associated with it? Do we really have a deep-seated fear that we do not in fact have a very good moral or other right to whatever it is we think we own? When distributions of property are so manifestly unequal, we do not need to go very far to find a source for such a fear: although politicians, philosophers, ideologues and others may find it equally easy to dream up justifications, a persistent doubt about entitlement remains.

The following somewhat different description of property emphasises obligations towards others, rather than rights exercised ‘in total exclusion’ of them:

The ability to control one’s property can promote human dignity, individual fulfillment, and social welfare. Yet the various tensions embedded in the property system require us to impose obligations on owners – obligations to use their property in a manner that is not inimical to the legitimate interests of others. Entitlement initially appears to abhor obligation, yet on reflection we can see that it requires it. Indeed, it is the tension between ownership and obligation that is the essence of property.

(Singer 2000:204)

This more modern understanding of property insists upon its relational dimension. Property is not just about individuals exercising control over external things and (therefore) over others. Rather, property concerns individuals and communities: how they are formed, how they live together, and how they use their resources. On this understanding, property brings into play an entire social order.

This book will consider a range of issues raised by these, and other, interpretations of property. In doing so, it takes as its focal point property theory, rather than property law. Of course, to the extent that Anglocentric¹ property theory is based upon a culturally distinctive common law approach to property, occasional reference to property law will be useful and necessary. But, as I hope to show in the following chapters, the concept and the manifestations of property in the Western liberal context go far beyond legal doctrine, extending to ideologies of the self, social interactions with others, concepts of law, and social concepts of gender roles and race relations. More generally, as Carol Rose has shown, cultural narratives about ourselves and our environment play an important role in influencing or persuading the community about different notions of property (1994:1–7). While this short book aims centrally to provide an overview of critical approaches to property, it also proposes a particular approach to understanding property as a cultural as well as a legal phenomenon. Put simply, that approach is pluralistic in that it rejects the idea that there can be a single explanation or theory of property. Rather, I will present property as a multi-faceted, sometimes self-contradictory and internally irreconcilable notion which is variously manifested in plural (though inseparable) cultural discourses – economic, ethical, legal, popular, religious, and so forth. My objective is neither to undertake a critique of property nor to construct a theory, but rather – using a variety of methods or media – to construct a composite picture, a collage, of property. This is not by any means a realistic or representative picture: it is more impressionistic in some of the links which it creates and leaves many blank spaces to be filled by scholars with more detailed knowledge than I can claim.

More specifically, I focus upon three dimensions of what I would call a ‘cultural matrix’ of the Western liberal understanding of property – first, the symbols and meanings of property in a broad cultural context; second, the histories (legal, political, social) of property; and third, the theories of property, in particular those theories which have been influential in shaping key aspects of Western liberal ideas about property. ‘Meanings’, ‘Histories’, and ‘Theories’ are the subjects of Chapters 2, 3, and 4 respectively. These chapters present an immanent description and critique of property theory – that is, taking the idea of property as a fundamental part of the Western and in particular liberal world-view, the approach is to explain theoretical perspectives on property, and to apply various critical techniques which contest, complicate, or challenge some core ideas about property. Chapter 5, ‘Horizons’, is different in that it presents in outline some alternative ways of thinking about the relationship of individuals and social groups to the world’s resources: while most of these still originate in the West, they represent efforts to move beyond both traditional and critical articulations. The chapter looks at alternative theories about property, as well as contemporary activist movements which attempt to mobilise one or more of these alternatives.

Given the length of this book, I do not attempt to be comprehensive in my coverage of any of these matters. Moreover, given its introductory nature, I have endeavoured to consider a broad range of topics: even if the treatment of these is often sketchy, this seemed preferable to very detailed consideration of a more limited number of subjects. Having said that, in many respects the selection of materials and topics is a personal one, and it undoubtedly presents a very partial view of property: I touch very little, for instance, on classical economic theories about property, have hardly given credit to several important contemporary theorists such as Nozick or Rawls, and consider little of the extensive theory concerning distributive justice. More significantly for a supposedly critical approach, I have provided no systematic discussion of the extensive social-scientific scholarship which deals with the complex modalities through which things and spaces are constructed, normalised, and contested in human relationships (for some interesting examples see Pottage and Mundy 2004 (critical anthropology); Cooper 2004:16–29; Crabtree 2006; Blomley 2004 (critical geography)).

This chapter will address a number of introductory issues. First, it will outline the approach of the book and in particular consider what a ‘critical’ approach is, emphasising the Kantian and Frankfurt School notions of ‘critique’ and extended contemporary versions of critique which address structures of power such as race, gender, class. Second, it will highlight some of the practical issues and key themes which make property such a significant part of the political and social fabric of contemporary cultures: the tension between property and the commons; debate concerning the nature of property (as a bundle of rights or as something more solid); the question of whether property is merely a legal construct or exists in some ‘natural’ state; and finally – most significantly for any discussion of this topic – the relationship between property and power. Third, it will outline one of these central issues in more detail – debate over the legal characterisation of property. The other themes will be considered substantially in Chapters 2, 3, and 4.

CRITICAL THEORY

This book has been specifically written as part of a series on ‘critical approaches’ to law. What does it mean to say that a ‘critical’ approach is being taken to a subject area? Why do we (legal scholars) characterise some types of scholarship as ‘critical’ and others as ‘non-critical’ or traditional? The epithet ‘critical’ is very frequently and self-consciously adopted by theorists who wish to distinguish their style, method, or approach from ‘non-critical’ or ‘traditional’ scholarship. The same cannot be said of those we (critical scholars) designate as ‘non-critical’: hardly anyone characterises their own scholarship as ‘non-critical’ or ‘traditional’ (Pavlich 2005:95–6; Douzinas 2005:47), though many have positioned themselves in opposition to particular forms of critique. Indeed, shouldn’t all scholarship aspire to be ‘critical’ in the sense that it ought to refuse to take accepted knowledge at face value? Surely it is the task of scholarship to be self-reflective as well as to subject others’ views to detailed scrutiny in the interests of promoting debate and dialogue. Self-designated ‘critics’ do not ‘own’ critique any more than I ‘own’ property by writing a book about it – unless and until of course such a claim is recognised by the community of scholars as a valid appropriation.

Interestingly, property or ‘the proper’ is sometimes itself deployed as a trope for that in knowledge which is established, bounded or obviously correct. By contrast, critique would be the improper or non-proprietorial. Consider this tantalising thought from Julia Chryssostalis and Patricia Tuitt:

For critique, there can be no hope or promise of closure: it is fated to occupy that enduring state of anxiety that accompanies the homeless, the wayward or the dispossessed.

(2005:1)

Established knowledge has closure or at least aims for it, even if this is by way of an artificially enforced boundary or set of undisclosed or unexamined assumptions. Critical theory is destined to be constantly ‘on the move’, unlike the owner but like the dispossessed. This metaphor works only while property is regarded as an exclusive and closed terrain: it becomes more difficult to sustain once we start thinking that perhaps property is itself not proper, closed, or certain. (I will come back to this in Chapter 2.)

As usual, I am getting ahead of myself. To return to the question, what is a critical approach, which would be different from a normal scholarly approach? Critical theory, as understood by contemporary critical legal scholars, can mean a number of different things. Reference is often made to the philosopher Immanuel Kant, whose critical works – primarily the critiques of Pure Reason, Practical Reason and Judgment – were generated by the need to establish secure non-dogmatic foundations for knowledge. In this sense, critique is the necessary and a priori basis of all that we know: without it, we simply have assumptions and beliefs (Kant 1929:9). Critique is also often understood as social critique, consisting of a more expressly socio-political agenda of systematically exposing the operations of power and domination in ordinary social structures and institutions in order to change them: such a form of critique may be traced to Marx (1845). In its twentieth-century form, Max Horkheimer reiterated Marx’s call for a transformative social critique and argued that critical theory is immanent and reflexive: it is immanent because rather than simply rejecting a particular system of established thought from the outside, it works at finding the internal contradictions and inconsistencies of that theory; critique is also reflexive in that it appreciates the interrelationship of objects, theories and subjects in the process of knowledge construction (Horkheimer 1972:2010–211).

In the more specifically legal tradition (though as others have pointed out, there is a legal element of philosophical critique²), although the US-based critical legal studies movement was the first self-consciously to adopt the term, ‘critical’ legal scholarship is now geographically widespread and diffuse in its themes and approaches (Douzinas and Geary 2005:229–58). Legal critique can be either abstract/conceptual or social/transformative or, ideally, both: the forms of critique which have most successfully connected the abstract and the practical are those strongly motivated by the need to transform social distributions of power – feminism, critical race theory, critiques of ongoing colonialism and imperialism within law, sexuality and gender critiques. All of these critical approaches have had an impact on property theory, some aspects of which will be considered throughout the book.

Referring to the critical approaches of Kant (epistemological critique) and Marx (social critique), Wacquant argues that a combination of both is to be preferred:

… the most fruitful critical thought is that which … weds epistemological and social critique by questioning, in a continuous, active, and radical manner, both established forms of thought and established collective life – ‘common sense’ or doxa (including the doxa of the critical tradition) along with the social and political relations that obtain at a particular moment in a particular society.

(2004:97)

If I were to adopt a manifesto for the book, then, this would be it: to combine the epistemological and fundamental critical analysis of the concepts, theories, and established knowledge about property with an understanding of the social and political conditions of property distribution which co-exist with these concepts. Property is an exceptionally fertile ground for such critique, since – as many have observed – its very being is often predicated upon the liberal ...

Table of contents

• Contents
• Acknowledgements
• Chapter 1 Critiques
• Chapter 2 Meanings
• Chapter 3 Histories
• Chapter 4 Theories
• Chapter 5 Horizons
• References
• Index