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E-book Placing Property : A Legal Geography of Property Rights in Land

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Penilaian

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Land undergirds human existence, providing the material conditions for suste-nance, shelter and quality of life. The human past reveals a variety of practices and strategies for land use, given the diversity and instability of environments over time. It is therefore remarkable that land today is classified according to one main characteristic: ownership. Private property rights insofar as they refer to land are defined by the exclusive ownership of a bundle of rights that can be transferred by title. The legal title holder of such rights can thus exclude any non-member from the use and benefit of the land.1 In both the common law and civil law systems, ius abutendi grants the owner the right to neglect and abuse property, which conflicts with the sustainable governance of resources2 and notions of integrating planetary limits in policy-making.3 Private property was not the dominant form of land use around the world, or even in England, until about 1800.4 As Rachael Walsh and Lorna Fox O’Mahony note, the ‘1925 legislation’,5 a suite of consolidating statutes establishing the ‘modern’ framework for land ownership in England, elimi-nated ‘the features associated with the aristocratic, status-based land system, in favour of capitalist, contract-based free trade in land...Land was re-configured as a fungible commodity, as readily exchangeable as any other’.6 In the transi-tion to a market-based concept of property rights, informal and unregistered claims to land were unacknowledged. Today, property in land can be defined as land, or a right to the land, or a social utility, leading Kevin Gray and Susan Gray to conclude that ‘few concepts are quite so fragile, so elusive and so often misused as the idea of property’.7 It is with these informal understandings of land disregarded by the 1925 legislation and modern land law more generally that this book is occupied, as they are directly linked to the amorphous nature of property, its present-day contradictions and incompatibilities. Current property law texts agree with Gray and Gray, admitting that classic property theory rests on precar-ious conceptual foundations.8 Nevertheless, this position has been qualified by Alison Clarke, noting that land law was incrementally developed in England with no seismic changes9 ; no particular interest prevailed once the system was rationalised10 ; and former colonies adapted the common law to local condi-tions.11 This restates the common law stance in modern terms. What Gray and Gray, Clarke, and other property lawyers and scholars have all acknowl-edged is that property has diverged from land in a complex historical process. Yet, despite legal innovations to promote sustainable land use today, modern legal conceptions of property have proven unable to address the realities of land-driven crises such as pollution, climate change and the pressures of globalisation, and in many cases, enables them. What was erased by the 1925 Act was not just an antiquated system of tenures, to be replaced by a modern land registration system, but ways of seeing and understanding land defined by features and processes, rather than boundaries; specifically, the relationships communities developed in interaction with their environs, and the customs generated to maintain those relationships and a way of life. Known as landscape, this cultural geographical descriptor of place implied a distinct locality that connected community, land and law for centuries and functioned as a rubric for diverse non-proprietary interests in land.

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Ketersediaan

Informasi Detail

Judul Seri

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No. Panggil

346.04 BYE p

Penerbit

Switzerland : Springer Nature., 2023

Deskripsi Fisik

78 hlm

Bahasa

English

ISBN/ISSN

9783031319945

Klasifikasi

346.04

Tipe Isi

text

Tipe Media

computer

Tipe Pembawa

online resource

Edisi

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Subjek

Property

Info Detail Spesifik

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Pernyataan Tanggungjawab

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Versi lain/terkait

Lampiran Berkas

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