Property Diversity and its Implications

John Page

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317273622
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

Property is more diverse than is usually assumed. Developing the concept of property diversity, this book explores the varied role of property in placed human landscapes. In acknowledging the propertied diversity about us, the book highlights the paucity of our settled contemporary assumptions of property as defined by private ownership. Challenging this universalizing model, the book analyses how this self-limiting view produces critical blind spots in modern property discourse. In response, it offers a re-conceptualization of property that matches the grounded reality of our rich and diverse relationships with land. Integrating the plurality of real property types (private, public and common) with inclusive understandings of both interest and ownership, it thus identifies and substantiates an overarching theory of property diversity. Drawing on studies from numerous jurisdictions, including the USA, New Zealand, Australia, and the UK, its analysis of property as something more – and indeed other – than a place-less abstraction provides an invaluable contribution to the contemporary law and theory of property.

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Part I

The diverse private, public and common estates

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Chapter 1

Private property and the domineering right to exclude

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1.1 Introduction

Private property has been the dominant (and domineering) form of property in land since the eighteenth century. It has successfully marginalized and discredited alternative forms of property, such that today we see property through a myopic prism of private property rights. Hence, for most people, the terms ‘property’ and ‘private property’ are synonymous and interchangeable. This chapter challenges this narrow and incomplete description of modern private property that has conflated its reach and concealed its nuance. The chapter’s aim is to better depict the private estate, and in so doing, clear sufficient space for property diversity.

The all-consuming edifice of private property, William Blackstone’s famous ‘sole and despotic dominion’ and its hallmark right to exclude, is a structure less absolute than its persuasive rhetoric exhorts.¹ Private property was never unqualified or unfettered in its reach; public and communal rights and restraints have long defined the ambit of private rights. Likewise, the divide between public and private is (and was) porous, private rights exist in public property and public rights in private. For all its apparent and substantive dominance, a dual paradox lies at the heart of private property. First, the absoluteness of private rights, manifested in the right to exclude, is reliant on a flawed assumption that the public-private dichotomy is distinct and inviolate. This misassumption accentuates the propensity of private property rights to conflate, in the process distorting their integrity and obfuscating the coherency of private property’s rationales. Second, the flawed public–private divide itself is premised on an historic interpretation of private property frozen in time. The mantra that private property must be stable and certain does not equate to its immutability. Private property is a dynamic social institution, subject to historical, social and political pressures, one that is constantly, albeit incrementally, dynamic.

The substance of private property is the security it affords right holders in their exclusive use and enjoyment of their rights. Yet the narrative or rhetoric of private property has diverged from this central organizing basis. Secure exclusivity of use has become exclusivity simpliciter, with the paramount right to exclude overshadowing the complexities and nuances of private property. Like private property itself, the right to exclude is not only singularly dominant, but domineering. This perversion has unduly distorted property discourse and fed a propensity for courts and legislatures to overstate the extent of private property rights. Private property is better understood as securing an exclusivity of use, coupled with a qualified freedom from interference, and not an arbitrary exclusivity of possession. Such a descriptive re-emphasis does not diminish the essence of private property, its security of title. However, it does enable the theoretical oxygen for other potentially co-existing property rights, uses and claims, as well as duties or obligations, to subsist. By seeing private property in such a light, we begin to see it in a pluralistic, diverse context.

In this chapter, the history of private property is analysed as it pertains to so-called ‘settler societies’, particularly the United States, Australia and New Zealand, beginning in section 2 with the seminal seventeenth- and eighteenth-century writings of William Blackstone and John Locke. Sections 3 and 4 then trace the shift from a pre-industrial to industrial society, and the implications and opportunities this presented to a burgeoning private estate freed from the inconvenient strictures of English property doctrine and energized by the bundle of rights metaphor. Sections 5 and 6 concentrate on the often-overlooked dynamism of private property, and the complexities that arise when stasis distorts key aspects of private property, exemplified by the public–private divide. Section 7 then considers the plausible yet descriptively flawed narrative of private property that has come to dominate, while section 8 distils the qualitative attributes of private property that form the core of its revised description. The chapter concludes by re-examining the rationales and justifications of the critical right to exclude in light of this re-defined paradigm.

1.2 Blackstone, Locke and historical origins

In charting the rise of private property and its hallmark right to exclude, it is convenient but not contrived to commence in 1765 with the Commentaries of William Blackstone. Blackstone wrote his Commentaries at a crucial era as England vigorously expanded its colonial empire. Blackstone’s timely summation of the great body of common law jurisprudence enabled this important, and transportable, compendium to reach far beyond English shores, as Anglo-settler societies extended across North America and the Pacific Rim (Banner 2007). Blackstone’s thinking proved foundational to many newly establishing jurisdictions (Alschuler 1996). Indeed, his summaries of the law were noetic. This was particularly so for concepts of property as nascent societies struggled with the political and social imperatives of settling vast, ‘empty’ hinterlands, whether in pursuit of Manifest Destiny, or more mundane, practical policies of closer settlement.² Blackstone captured a notion of property that conformed to the spirit of the times, an articulation that matched the zealous conquering of frontier.

In writing of property, Blackstone famously observed:

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.

(‘Of the rights of things, of property in general’, Book II, Ch. 1, cited in Jones 1973, p.119)

Unsurprisingly, much emphasis was placed on Blackstone’s ‘sole and despotic’ prescription to justify an absolutist, highly individualized and exclusive notion of property in settler societies. Moreover, his definition divorced property from the things of the external world. But as Carol Rose observes (1998b), Blackstone’s definitive assertion (Rose calls it the ‘Exclusivity Axiom’) was immediately followed by his own doubts as to the origin of such seemingly unequivocal rights, what Rose terms Blackstone’s ‘Ownership Anxiety’.

And yet there are very few, that will give themselves the trouble to consider the origin and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in title … We think it enough that our title is derived by the grant of the former proprietor … not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground.

Rose argues that the problem is that not enough property jurists have read that much Blackstone. ‘If those who quote Blackstone’s definition read further, they might come to think that Blackstone posed his definition more as a metaphor than a literal description … a point of departure’ (Rose 1998b, p.602). Indeed, had scholars headlined the later line in the same chapter, ‘so it is agreed … that occupancy gave … the original right to the permanent property in the substance of the earth itself; which excludes everyone else but the owner from the use of it’ (emphasis added), then perhaps property rights may well have taken on more usufruct-like characteristics. Rose concludes that Blackstone’s ‘Exclusivity Axiom’ is a metaphoric over-statement, a ‘trope’, that ‘conceal[s] the interactive character of property and give[s] an inappropriately individualistic patina to this most sociable of human institutions’ (Rose 1998b, p.632).

Yet, it is not just Blackstone’s text that was problematic, it was also the context in which he wrote. As Eric Freyfogle notes, Blackstone had different ideas about ‘dominion’ derived from late-eighteenth century English agrarian society, than we may understand the term in a twenty-first century urban environment. Freyfogle argues ‘dominion’ to Blackstone meant ‘the right to quiet enjoyment … the right to halt any appreciable interference by a neighbor’ (Freyfogle 2003, p.68). Pointedly this did not equate to the absolute right to exclude. Rather it contemplated contexts where multiple rights co-existed lawfully, where reasonable co-enjoyment was implied, but unreasonable interference with another’s peaceful use and enjoyment was an actionable breach of ‘dominion’. Rose likewise factors in context, positing that Blackstone was aware of how feudal and entailed limitations on estates, and the obligations of riparian and nuisance law, ‘seriously’ qualified the extent of an owner’s dominion (Rose 1998b, p.603). Murray Raff (1998) cites the not-so-distant English Revolution as one reason why the power to exclude would have been foremost on Blackstone’s mind – the power to exclude the Crown. Even Blackstone himself, the alleged absolutist, acknowledges waste and nuisance as a contextually legal limit on a private owner’s dominion.

More significantly, Blackstone’s ‘context’ was one where non-exclusive property rights subsisted and co-existed with private rights. While the enclosure movement had gained considerable momentum in the second half of the eighteenth century, common property rights were still widespread. The myopia that ‘property’ and ‘private property’ were synonymous and interchangeable terms had not taken hold, rather property existed in more diverse forms. But Blackstone’s ‘sole and despotic’ refrain became private property’s ‘sound bite’. Like most sound bites, they sell perception, a message, not substance or nuance. This message, Rose’s ‘trope’, proved too successful, thereby informing and distorting an absolutist exclusive notion of private property, to the detriment of its qualified nuance.

If William Blackstone articulated a key, albeit selective, mantra, John Locke provided the theoretical underpinning for private property in the crucial early phases of settler society. Indeed, Lockean notions of property continue to stress the primacy of individual dominion, and are often used to describe politically conservative approaches to private property rights. Locke wrote a century before Blackstone, but his themes of the inherent worth of individual labour struck an especial chord in republican America.

The basic Lockean system of property as a license for unlimited individual accumulation via unilateral action has held a powerful place in the American pantheon of political thought since the Revolution.

(Raymond 2003, p.45)

According to Locke, ownership of one’s own body was the starting point to justify the private ownership of external things. When one mixed individual labour with things found in the common fund, or natural world, something of value was created. Morally the fruits of one’s labour justified that ‘thing’ being owned by the person whose labour had created it. This transfer of ownership was good for both the individual and the collective whole, improving land adds value (by ten-fold in Locke’s estimation), an apt political narrative. Some value owned by an individual is better than no value owned by the collective. Locke’s labour theory corroborated the individual acquisition of private property transformed by ‘sweat...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of figures and tables
• Acknowledgments
• Introduction
• Part I The diverse private, public and common estates
• Part II The implications of property diversity for place, community and obligation
• Conclusion
• Index