Legal Perspectives on Property

The term 'property' as we have come to know it encompasses the intellectual organisation of the rights and relationships between a person and a thing; hence property rights are not absolute, but change from time to time and place to place. Society being built around property in its everyday functioning necessarily allows it to govern social order to some extent, and so different legal perspectives of viewing property can lead to drastically different outcomes.

In a European context, an important philosophy regarding property originated from 17th Century philosopher John Locke and his theories on property based on natural law. He argued that God gave the land to all men for the maintenance and comfort of their being, so in the beginning no one had property rights over any land. However, God did not intend for it to remain that way, as if property rights were not assigned no one would be able to make any use out of land. His fundamental argument, then, is that each man has a property in his own person, something that no one else can take away from him. Extending it further, one could say that his labour is also his property, and by annexing this property to the land through toil in the land, the fruits of his labour are necessarily his property as well, enclosing it from the commons as long as there is enough left for other men. The problem with Locke's argument as applied to a modern context is that scarcity plays a major role in society, meaning Locke's qualification applies and even those things to which we have annexed our labour no longer necessarily become our property.

Therefore, perhaps a critical legal perspective better explains how property law functions in a modern European context. Critical legal theory sees the law as reinforcing the status quo of those in power under the guise of legitimacy, and this is particularly prevalent in property law, which favours the monied, middle-class white man striving for success in the marketplace; these are the men of property. While previously property was defined by hard labours, now society has that labourers get a contracted wage for producing products, whereas shareholders get the bulk of the money earnt, and the labourers cannot just assume rights over what they produce as that would constitute theft. This not only illustrates that property law reinforces the rights of those with property and oppresses those who have annexed their labour to it, contrary to the natural law argument, but also that hegemonic consciousness infiltrates society, causing it to believe that favouring the propertied is an eternal part of the natural order, when it is simply reinforcing the interests of the dominant elite. An example that illustrates how these values about property, seen as immutable, are actually in flux is the contrast between property law in the 18th and 19th Century. while in the 18th Century, law tended to favour agrarian uses of land over industrial uses, based on the doctrine that a man cannot intrude upon another man's right to the quiet enjoyment of his land, in the 19th Century this doctrine was replaced by the doctrine of reasonable use. Judges now had the opportunity to decide which use of land was most beneficial for social development, and invariably they favoured industrial uses, causing the downfall of agrarian society, illustrating how law tends to favour those in the dominant majority of society at the time. Since agrarian society embodies Locke's theory of annexation of labour to land to create property, its downfall also marks the downfall of that concept and the evolution into modern property law. Hence modern property law ultimately embodies the critical legal belief that law reproduces the oppressive character of politics in society, and is not neutral to all - only those dominant and with property.

Both these European perspectives, however, operate within a European context and may clash with the laws of other cultures in a pluralist society. One example is Tikanga Maori in New Zealand. While natural law theorists following Locke's argument believed that land was only a person's property if labour had been annexed to it, for Maori, there was no concept of land ownership at all. In Tikanga, the Maori people are the people of the land, they come from the land, live harmoniously with the land and has a duty to sustain its life force, then returns back to the land in death; therefore rights over land are traced through whakapapa. This presents a problem when both the British and the Maori assert different property rights over the same land. From the British perspective, since Maori had not cultivated most of the land in New Zealand, even customary land could be considered wasteland as no one 'occupied' it. They thus demanded that all wasteland be vested in the Crown for the use of present and future settlers in order to develop the colony, infuriating the Maori who saw this as a violation of tikanga. All the land of a tribe is sacred to them and cannot be seized or sold; the Maori people are the kaitiaki and have a responsibility over all customary land with a duty to maintain its mauri and this right cannot be taken away by foreigners, even if it seemed like it was not being occupied or cultivated. For Maori, if this kaitiaki role is not fulfilled, they will not only lose their mana, but may incur harm in the whanau. The Crown eventually used its right of pre-emption to purchase all wastelands in New Zealand, but this imposition of Western law on Maori had devastating consequences leading to the breakdown of Maori community. Tribal authority was diminished, and Maori society became a true commons, where people competed to sell their natural resources as quickly as possible before their neighbour did, since if they did not the Crown would take it away anyway. Thus it can be seen that not only does the clash of property law between cultures affect the physical thing concerned, it also has grave consequences for the intellectual organisation of a society, as property is what society is primarily founded upon.

Therefore, while many of us take the concept of property for granted, it is actually subject to many different legal perspectives which can create very different views of how property law functions within society. While originally the ideal was that every man had an equal right to property provided that they annexed their own labour to it, as society has evolved, so has property law, and from critical and pluralist perspectives, it can be seen that property law, like politics, often oppresses those who do not fit the legal person that law favours: the middle-class, European man striving in the marketplace, thus keeping the status quo of the elite in society.