Property

The idea of property carries both extensive symbolic resonance and significant practical implications in contemporary Western societies. Legal works on property emphasise formal legal regimes of property ownership, while philosophical treatments focus upon moral and economic justifications for property. Property: Meanings, Histories, Theories examines property in a cultural, symbolic and historical framework. One aim of the book is to outline the ways in which concepts of property are symbolically and practically connected to social relations of power. A second aim is to consider and critique the ‘objects’ of property in changing material contexts. Third, the book explores challenges to the Western idea of property posed by colonial and post-colonial contexts, such as the disempowerment through property of whole cultures, the justifications for colonial expansion, and biopiracy. These themes are considered in three central chapters dealing with the meanings of property, its history, and philosophical accounts of property. A final chapter considers some alternative narratives of property and possibilities for its reconstruction.

Margaret Davies is Professor of Law at Flinders University, South Australia. Her research covers several fields of legal theory, including feminist legal theory, legal pluralism, the philosophy of property, and postmodernism. She is the author of several books, including

Asking the Law Question (2002) and Delimiting the Law (1996).

Property

Meanings, histories, theories

Margaret Davies

First published 2007

by Routledge-Cavendish

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Simultaneously published in the USA and Canada by Routledge-Cavendish

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This edition published in the Taylor & Francis e-Library, 2007.

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© 2007 Davies, Margaret

A GlassHouse book

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

British Librar y Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Librar y of Congress Cataloging in Publication Data

Davies, Margaret (Margaret Jane)

Property : meanings, histories, theories / Margaret Davies. p. cm.

Includes bibliographical references and index. ISBN–13: 978–1–904–385–84–4 (pbk. : alk. paper) ISBN–10: 1–904385–84–2 (pbk. : alk. paper) ISBN–13: 978–0–415–42933–7 (hardback : alk. paper) ISBN–10: 0–415–42933–1 (hardback : alk. paper)

[etc.]

1. Property. I. Title.

K720.D38 2008

346.04–dc22

2007024475

ISBN 0-203-93731-7 Master e-book ISBN

ISBN10: 1–904385–84–2 (pbk)

ISBN13: 978–1–904385–84–4 (pbk)

ISBN10: 0–415–42933–1 (hbk)

ISBN13: 978–0–415–42933–7 (hbk)

eISBN10: 0–203–93731–7 eISBN13: 978–0–203–93731–0

Contents

Acknowledgements

I have received invaluable assistance from a number of people. I would like to thank David Bamford, Tina Dolgopol, Gary Davis, Natalie Fowell, Mary Heath, Eric Richards, Kathy Mack, Ngaire Na ne and Andrew Stewart for providing some useful references and resources, and indulging in conversations about di erent aspects of this book. I would also like to thank Judith Bannister for reading and providing feedback on the intellectual property material in Chapter 3. Excellent research assistance has been provided by Reetvinder Randhawa, Debbie Bletsas, and Christina Son. At Routledge-Cavendish, Colin Perrin has been most encouraging. And Liz Rawlings has as always been extremely patient and supportive.

In particular, I would like to thank Davina Cooper, Jane Knowler and Lesley Petrie for reading the entire draft at very short notice and under a limited timeframe, and for providing many useful comments, criticisms, and suggestions.

The author and publisher are grateful for permission to reproduce short excerpts from the following articles:

Davies, M., ‘Queer Property, Queer Persons: Self-Ownership and Beyond’ (1999) 8 Social and Legal Studies 327–52

Davies, M., ‘The Proper: Discourses of Purity’ (1998) 9 Law and Critique 147–73

Davies, M. ‘The Common Law Culture of Property and Propriety’,

Rättsculturer – rapport från ett seminarium: Skrifter från Juridiska institutionen vid Umeå universitet No 5/2001, 33–43.

Chapter 1

Critiques

INTRODUCTION

I can’t help it, I am going to begin the book with a cliché, nothing less than the most obvious starting point for a book on property and the most over-quoted piece of prose on the topic, by William Blackstone:

There is nothing which so generally strikes the imagination, and engages the a ections 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. And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right. Pleased as we may be with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built.

(Blackstone 1766: 2)

There are a number of good reasons for this being such a well-known quotation. It raises, in a very succinct form, quite a few of the issues which many discussions of property raise. For instance: are ‘we’ (meaning in this context the Western liberal ‘we’) really as obsessed with property as Blackstone claims? If so, why? In what sense is it a ‘sole and despotic dominion’? Can only ‘external things’ be property, or can we own ourselves? Is it really about such ‘total exclusion’ of everyone? Why are we so wilfully blind to the justifications for