Property in land is a dependable institution, often dull, sometimes arcane. Without giving it much thought, we tend to respond to property in conventional, unreflective ways. We assume with property that ’what we see is what we get’.
However this unimaginative way of looking at property in land may be but a half-truth of the dialectic. Perhaps, property is a lot more diverse than the orthodoxy we suppose? This question forms the core of this thesis, the elaboration of an alternative description of property in land termed ‘property diversity’. The thesis argues that the descriptive truth of property, its grounded reality, is far more heterogeneous than we are conditioned to recognize. What we have got with property in land is what ‘we have talked ourselves into seeing’ , a liberal, post-enclosure paradigm that is universalizing in its effect. Contrary to the descriptively inadequate private model, human landscapes are ‘intensely propertied places’ where a plethora of rights, uses and claims overlap, compete and co-exist amidst inter-connective ‘mosaics’ of private, public and common interests in land. These ‘interests’ are themselves equally diverse; ancient as well as novel, common law and statutory, shared and exclusive. And to complete the mosaic, our ‘ownerships’ are likewise pluralistic, ranging from strictly enforceable right through to vague concepts of belonging, illusory at law, yet routinely acted upon.
In articulating a reconceptualized property right in land, the thesis adopts the following broad structure. First, it seeks to explain why the private ownership model prevails, such that ‘property’ and ‘private property’ are mostly synonymous. Both dominant and domineering, this narrow view stresses the primacy of individualism, the power of exclusion, and the values of commodity. Second, it argues that this perspective is an incomplete description of property in land, canvassing the richness of the public and common estates, and the under-regarded social and communitarian nuances of private property. Third, it describes a theory of property diversity in land, more like Hanoch Dagan’s ‘full (sometimes cacophonous) symphony’ than any ‘singular melody line’.
Fourth, it considers the implications of property diversity for two ‘blind spots’ in modern property discourse, the proprietorial place of community, described by Joseph Sax as the ‘missing blank in American law’ and the generation of obligation as an incident of land ownership, again in Sax’s words, the law’s ‘awkward little secret’ .
The thesis canvasses the literature of the private, public and common estates, property and community scholarship, and stewardship discourse. It also reaches beyond legal property with a brief foray into legal geography and sustainable urban design. Its novelty lies in not only collating this literature into one body of work, but in viewing it through the prism of landed property diversity.
This reconceptualization has consequences; it shifts the focus from the private right to a wider perspective, contextualizes the res as a critical element of propertied relations, and provides a theoretical construct for an alternative ‘seeing’ of property right in land, one where a ‘swarm of possibilities’ offers new imaginings for property in land.