Public Property, Law and Society

Owning, Belonging, Connecting in the Public Realm

John Page

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000331257
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

This book examines the almost entirely neglected realm of public property, identifying and describing a number of key organizing principles around which a nascent jurisprudence of public property may be developed.

In property law terms, the public realm is lost to plain view. Despite the vast acreage of public lands, or the extensive tracts of private lands over which public rights subsist, there is little commensurate scholarly discussion of the ideas, theories, practices, and laws of public property. This is no accident. Public property has been marginalized and pushed to the periphery for centuries, a consequence of the dominant discourse of private property, and its enclosing, encroaching tendencies. This book explores the rich diversity of the public estate, of what the public realm means for us, the general public, canvassing what we may 'own', where we may 'belong', or not, and how we may 'connect' through a shared use and enjoyment of public place and space. To better understand public property is to better value its critical public-wealth. Whether overlooked, over-used, or under threat of imminent loss, this book maintains that our loved (and not so loved) public spaces are essential components of our diverse, functioning, and optimistically livable human geographies. As such, they demand legal protection.

This important and original book will be of considerable interest to scholars and others with interests in property and land law, socio-legal studies, legal geography and urban studies.

1

Introduction

Our relationships with public real property are as diverse and varied as the vast public estate itself. Whether grid-locked on Los Angeles’ Interstate 405, trudging through London’s sunless, unremarkable Passing Alley, or tramping the wild emptiness of New Zealand’s high country, we engage with public property in ways that stretch the limits of description – and imagination. Our very public sharing of this public space never ceases in an infinite, ever-changing constancy of time and place, the social, inherently propertied interactions that shape who we are, where we belong, and how we connect. Yet, despite its centrality, the public estate remains sorely under-theorized and under-documented in the common law – a legal poverty out of all proportion to the vast acreage of public lands, the diversity of intangible public rights, and the cognate literature of public space that fires the scholarly imagination in disciplines such as geography or urban design. This book is a response to this incongruity, its objectives to first capture the scattered literature of public property jurisprudence, and second to develop a theoretical framework that explains, or at least contextualizes, the public realm in the common law tradition.

To engage with public real property is to resist a dominant narrative, to challenge the universalizing notion that all property is private, and to refute its corollary – that the public estate is ‘bereft of property, a terra nullius’ (Blomley 2008, p. 321). Non-private property has been marginalized for centuries, pushed to the periphery and diminished from plain view. Indeed, since (near) time immemorial, the forces of enclosure and privatization have conspired to transform legal landscapes from rich heterogeneous patchworks to ‘improved’ private monotones.¹ The normalization of ‘private property’ as ‘property’ impugns both the fact and the idea of property’s other, a physical and metaphysical encroachment that renders the concept of non-private property awkward to propertied ears. What prevails is a counter-factual paradigm entrenched by centuries of precedent. Thus, the once widely accepted common right to glean was reduced by an English court in 1768 to a ‘mere practice’ characterized by its ‘vulgarity’ and ‘promiscuity.’² Just over two hundred years later, the Australian High Court re-affirmed property in singularly private terms, where ‘a [property] right … does not mean a public right; it means an individual right of a proprietary nature’, and ‘interest’ mean ‘interests held by persons in their individual capacity.’³ Collective rights have long been suspect, mired in their feudal origins (Rose 1998, p. 179) and dismissed as the mere practices of custom, not rights of property.

Another implication is the widespread confusion that marks the blurred delineations between different types of non-private property. Public property is state property, federal lands, the commons, collective property, Crown land, and so on. As Chapter 2 details, the task of categorizing public property is fraught, its amorphous boundaries open to conjecture, and wide institutional uncertainty. Indeed, in its opening words, this book fares little better – its several references to ‘non-private’ property a concession to the rhetorical (and intrinsically diminishing) power of defining something by what it is not.

With these challenges in mind, the book asks a core question – how should we define the essence of public real property? Its approach is to identify and interrogate a number of key organizing principles, divergent themes around which ideas of public real property coalesce. It pinpoints five, beginning with ownership and ending with democracy and protest. In between these two bookends, the strengths and flaws of sociability, belonging, and connection are in individual turn explored. The book’s trajectory can be measured in several ways. Doctrinally, it begins with the law, yet ends ostensibly beyond it. It commences with the black letter, the formality of legal title but shifts to the study of the extra-legal or performative effects of connection. Theoretically, it follows a similar path, radicalizing as it shifts from the orthodoxies of ownership to the fallout of protest, and moving away from an abstract, rights-based understanding of property to a relational, material one. However, its scrutiny remains lawful, its objective to capture a jurisprudential snapshot of the common law public estate.

In each chapter, specific enquiries are canvassed pertinent to the theme or organizing principle under scrutiny. For public order, the question is asked, should we be content to define public real property descriptively, accepting half-hearted attempts at legal hierarchy as good enough? Or is ownership the golden thread, and if so, who owns public real property, and in what capacity? Is the ‘owner’ the government, a state agency, or is it ‘us’? And if the latter, what does ‘us’ mean? Leaving behind doctrine, and its orthodox imperatives to own, the book crosses over to property’s otherness. It starts in the safer territory of progressive property, Aristotelian theories the likes of property as propriety, the rationales of sociability, even the promotion of happiness. The book scrutinizes the implications of these proprietarian accounts, and critiques their relevance as both optimal and all-encompassing explanations of the public estate. It then strays into the more radical terrain of property as belonging, an arguably fuller explanation of property that opens up a ‘black box’ of unofficial, sometimes utopian claims, practices and norms – performances of property beyond the private model. Belonging segues to connection, an organizing principle viewed through the eyes of the pedestrian trope. It observes how connection and movement enjoy nuanced yet robust links with the common law at justiciable, theoretical and normative levels, links that enact and contextualize our propertied relations with the public estate. Last, it ends in the convergence of public and democratic terrain, remarking upon the telltale, unassuming centrality of public real property to democratic discourse and civil protest.

In terms of structure, Chapter 2 begins by outlining how certain jurisdictions have instilled their own semblance of public order into the public estate. While not an organizing principle in itself, this chapter canvasses the ways in which four jurisdictions: Scotland, England, the United States and New Zealand, have sought to acknowledge, classify and structure the public realm. These jurisdictions exemplify very different approaches to the task, from a conscious design based on a rich albeit little-known history, to a resigned sense that there is little, if anything left to catalogue – the meagre remnants of an exhausted public estate.

The chapter observes that the public taxonomic project has been an underwhelming one. Attempts at legal order have been largely ad hoc, reactions to context or the imperatives of exigency. While they yield a diversity of form – corporeal, incorporeal and sui generis – unsurprisingly, they tend to end messily, taxonomies replete with loose ends. Such inconclusiveness institutionalizes performances of failure. It also exhausts theoretical curiosity, a preference to put the threadbare public house in order rather than rationalize why. That being said, taxonomy has its upsides. As Wesley Hohfield argues, it sharpens intellectual rigor (1913). It helps to prune, to discard unhelpful categories. Ancient Scots law identified regalia minora, the likes of royal swans, wild salmon and the sovereign’s castle as a unique type of public property. Today, such regalia minora are analogous to Crawford Macpherson’s ‘state’ or ‘corporate public property’, essentially private lands where the exclusion stick is held by individual state agencies, not the public at large (1978). Rigor suggests these ostensibly public interests could be parked elsewhere, safely sidelined in their own public sub-ledger.

The chapter also offers an opening definition of the ‘public estate’, or its interchangeable equivalents, ‘public real property’ or the ‘public realm’. These are terms used liberally throughout this book, along with ‘public realty’ and ‘public property in land.’ Such descriptors rarely appear in land law texts, nor are they commonly taught in property law curricula. Where they do manifest, they are exceptional, at odds with the common law’s erstwhile focus on the private right. Outlier examples include the study of federal public lands in the western United States, or public real rights within the numerus clausus of Scots law. Otherwise, the study of the vast public estate is lost to plain sight – and scrutiny.

Chapter 3 introduces the reader to the first of the organizing principles of the public realm, the prism of ownership. The chapter seeks to find value in the idea of public owning, scrutinizing title from divergent theoretical, metaphoric, spectral and spatial perspectives. There is an inherent risk that the question who ‘owns’ public real property, is an inapt enquiry, a construct designed in the private paradigm, and thus ill-suited to the public. If this premise is correct, logically the answers it yields may be compromised, or at best, problematic.

Despite such misgivings, Chapter 3 begins by exploring familiar property terrain, the metaphor of the bundle of sticks, a private paradigm where divisible ‘stick’ rights are detached and re-assembled at will. Here, almost immediately things go awry. The public estate’s dilemma lies in identifying which ‘stick’ best highlights its core ‘public-ness’. Indeed, private property has long struggled with its own analogous conundrum. For example, if exclusion is the private right’s sina qua non, then logic might suggest that inclusion is the public estate’s inverse gatekeeper. Yet in practice, inclusion is, at best, patchy and inconclusive. Contrarily, Carol Rose argues that possession is the first right, the origin of property, but possession finds little literal or theoretic traction in public lands. Indeed, use and enjoyment better describes the exercise of public rights, where sharing seems the key. Curiously, though, this particular stick right remains as vague as the jurisprudence of public real property itself. By and large, private metaphors tend to lock public real property into closed loops – endless circularities that are both stale and wearying.

Employing the image of the spectrum is another way to posit the various meanings of public real property ownership. As canvassed elsewhere,⁴ seeing public ownership as gradations along an axis helps to explain many of its key iterations. The unitary state as owner, the state as trustee, even the unorganized public, fit defensibly on a continuum where position on the axis turns on owner-identity. The chapter then shifts to a spatial analysis of ownership, and the unique porousness of public borders. It ends in disruption, contesting colonial assumptions about public ownership in the settler colonial state, and challenging the emphasis on owner-identity, when owner-purpose may be a less vexing explanation of public owning.

Chapter 4 is, as foreshadowed, Aristotelian. It explores literature devoted to sociability, human flourishing, and the emergent ‘science’ of happiness. In this chapter, property is not the majoritarian ‘land as commodity’ private model. Rather, property serves virtuous ends, the citizen’s well-lived life. Through this perspective, public realty promises an enhanced, perhaps leading role. Carol Rose’s 1986 article, ‘The Comedy of the Commons: Custom, Commerce, and Inherently Public Property’ is a seminal work that concludes that sociability is the overarching modern rationale for public property. Gregory Alexander’s ‘other-half’ explanation of property, ‘property as propriety’, likewise offers a plausible justification for the public estate (1997). Equally, the happiness of public spaces, and the ever-growing roll call of ‘livable cities’ boasting rich public infrastructure compounds the utopia that public spaces are an Elysian amalgam of happiness, sociability and propriety rolled into one.

Yet the comedy of the public commons is not universally comedic. Other literature speaks of the grinding loneliness of dispersed commuter neighborhoods, scattered from the metropolis to the suburb, to the exurb, and forever outwards. In these ubiquitous ‘geographies of nowhere’ (Kunstler 1993), the common denominator is the freeway, the long thin lifeline of public concrete that links the commuter to employment and a remote social life. These far-flung places may be ‘dysfunctional suburb[s] of people shuttling from private interior to private interior’ (Solnit 2001, p. 255) but they are enabled and connected by the public road, the thoroughfare that began as a pastoral footway and metamorphosed into the ten-lane interstate. This dystopian alt-account suggests that public real property is more than sociable national parks and loved public squares. The sunniness of sociability, let alone happiness, is not always the inexorable outcome of every manifestation of the public realm.

Chapter 5 analyzes the implications of ‘property as belonging’ to the public estate. Belonging is a school of property theory that re-imagines property relationships on the bases of proximity, attachment or connection. Belonging underscores that property is intrinsically a social institution, with constitutive human connections to ‘proper or rightful place’. Belonging is thus intimately contextual, and spatial. As Sarah Keenan explains, ‘focusing on belonging rather than exclusion brings into view spatial factors that tend to be otherwise overlooked in exclusion-focused theorizations of property’ (2015, p. 72). Belonging also makes sense of property’s ‘otherness’, its ‘unofficial black box’ of informal norms, claims and behaviors (Cooper 2013).

Belonging helps to explain public real property because the public estate is mostly beyond the orthodox terrain of justiciable rules, subject-object relationships, and ‘exclusion focused theorizations of property’. Importantly, belonging cuts both ways, describing places that are well loved and those that are not. In this way, belonging accounts for the inconvenient gaps that sociability ignores. If there is a flaw of belonging, it is its equal plausibility for private property or common property. After all, all property is belonging.

Connection in Chapter 6 builds on belonging in Chapter 5, observing that conne...