Conceptual developments

Chapter 5
Conceptual developments

Political revolutions aim to change political institutions in ways that those institutions themselves prohibit.

(Kuhn 1996: 93)

However unreal social reality was becoming under the fetish of the commodity it was also actual. The logic of the thing-thing conception is a totalisation. It is not the totality.

(Kerruish 1999)

5.1 Introduction: dephysicalisation

Theories of property have contributed enormously to both the creation of modern property law and to its development to the present day. Theories of property have informed and influenced legal practitioners and law teachers for centuries. For this reason, it is important to understand how the theories of property have developed the person/thing paradigm of people–place relations since the time of Locke. In the nineteenth and twentieth centuries, the person–thing model of property relations was rearticulated as a person– person model by eminent scholars. Yet the logic of ‘dephysicalisation’ contained in the person–thing model remained central to the person–person model, thus perpetuating the abstraction and alienation of people–place relations and maintaining the irrelevance of land to property relations. But what, precisely, does dephysicalisation mean?

In legal theory, ‘dephysicalisation’ means the removal of the physical ‘thing’ from the property relation and its replacement with an abstract ‘right’. Dephysicalisation describes the shift from the person–thing model of property to the person–person model of property that is thought to have started in the late eighteenth century with the work of English legal philosopher Jeremy Bentham. This definition of dephysicalisation is usually referred to in the context of legal concepts and processes, rather than as an important part of the broader paradigm of people–place relations that characterises Anglocentric culture. As the previous chapters have argued, however, dephysicalisation can be traced back further, to the marriage of entitlement to property with the improvement of land and the work of Locke. Bentham did not invent the idea of dephysicalisation, he merely restated it. He argued that it was only unlearned people who confused the legal category of ‘thing’ with the physical thing itself, suggesting that the dephysicalisation of ‘things’ was by then well established. The significance of Bentham’s work to theories of property law is that he argued, against Locke and Blackstone, that entitlement to property is not vested in natural rights or natural law, but in positive law. By Bentham’s time, the idea that the ‘thing’ of property, such as land, was an object, whose defining characteristic was that it was an abstract, legal right possessed by the person or subject, was already accepted.

The first section of the chapter presents the contributions of Jeremy Bentham, J.S. Mill, Wesley Hohfeld, Kenneth Vandevelde and C.B. Macpherson to the person–person theory of property. For both Bentham and Mill, property was described in terms of its use value, as an instrument of an idealised state and economy. Bentham and Mill conceived of property as part of the positivisation of law and utilitarian political theory. Both theorists define property as a relation between persons rather than between persons and things. The point of having a property right is not, therefore, the ‘thing’ attached to the right, it is the having of a ‘right’ against the ‘rights’ of all other persons. The use value of property, between persons, is the precursor of the exchange value of property theorised by Hohfeld, Vandevelde and Macpherson. Hohfeld qualifies the legal relativity of property rights between persons, while Vandevelde and Macpherson emphasise the political possibilities and consequences of dephysicalised property rights. Both the use value and the exchange value of property advanced by these theorists present property relations as relations between persons, and thus as exclusively sociopolitical relations. This idea of property therefore eclipses place – property relations have become entirely about people.

The next section of the chapter, ‘Thing–thing property’, presents a critique of the dephysicalisation of property and of the person–person model of property. Economic philosopher Karl Marx argued that modern property relations are better described as thing–thing relations than person–person relations. He argues not that modern property relations accounts for ‘things’ in a physical sense, but in the sense that ‘things’ are commodities. Marx removes the ‘person’ from the property relation because, he argues, people themselves have become objectified and commodified. In a world without people and without place, Marx says, there are only ‘things’. Marx critiques dephysicalisation as a three-stage process that abstracts, inverts and fetishises physical reality. French philosopher Jean Baudrillard also presents property as a relation between things, rather than between persons. For Baudrillard, property does not have use value, exchange value or commodity value – property has only a symbolic value. Property, he says, participates in a semiotic economy. The paradigm of nature/culture is meaningless in Baudrillard’s theory of property because there is no real world, no physical realm, only a world of signs and simulation of that world. To Baudrillard, property points to the absence of any external reality beyond the signs of culture.

Contemporary English legal scholars Kevin Gray and Alain Pottage also consider property in terms of a semiotic economy, in which the sign value of property protects the illusory sanctity of law as an institution. Their critique of property challenges not merely the legal category of property, but more significantly, the foundation of law itself because the illusiveness of property subverts the constitutive foundations of law’s authority. While Gray’s theory contemplates the legal instantiation of property as an economy of symbolic illusions, Pottage critiques this economy and the very concept of dephysicalisation itself. What emerges from the very different work of Gray and Pottage is the idea that property is now so abstract, that it is meaningless. Whether property is theorised as being power, capital, wealth, commodity or symbol, the starting point is the same – property is always a metaphor for something else.

The conclusion of contemporary property theory, that property is elusive and indeterminable and that reality has been commodified and symbolised beyond being, does open up other questions. What happened to the ‘real’ in property? What is the physical ‘reality of commodification’? (Best 1994). The second and third chapters of this book attempted to address the first question, the next chapter attempts to address the second question. This chapter locates the concept of dephysicalisation within the current theories of property law and argues that theory plays an important part in maintaining, by rationalisation, the modern paradigm property law and its separation of people and place.

5.2 Person–person property1

5.2.1 Positive property: Jeremy Bentham

Jeremy Bentham profoundly influenced modern law and property in the Anglophone world by conceiving of property as a creation of law, rather than as a material thing. The origin of property, he said was cultural, not natural. As Bentham stated, property ‘is metaphysical, it is a mere conception of the mind’ (1978: 51). Bentham rejected the natural rights theory of John Locke and William Blackstone, for whom property relations took place in a state of nature and which were relations between persons and things. The problem with Locke’s idea of property in specific terms, Bentham argued, is that it

1 Parts of this section were first published in ‘Restoring the “real” to real property law’ in Blackstone and His Commentaries: Biography, Law, History, edited by Wilfred Prest and published by Hart Publishing in 2009. They are used here with kind permission.

‘overlooks so many other valuable subject matters of possession, namely power, reputation and condition in life’ (Postema 1986: 174). Blackstone, by way of contrast, and to a limited degree:

[W]idened the range of property discussed at a time when most discussions of property were restricted to land, interests in land and money in so far as it was to be regarded as a debt that could be charged against the debtor’s land.

(Sokol 1994: 297)

Nevertheless, Bentham regarded Blackstone’s work as a ‘striking example of the inability of the common law to provide adequate definitions of property’ (Sokol 1994: 287). This was in part due to the definition and division of property into the categories of the ‘real’ and the ‘personal’, which Bentham argued was an obsolete structure inherited from and particular to the feudal context, in which land was the locus of both the means to life and power. The problem in this division as he saw it was that such an historical definition of property failed to account for the changed economy, in which land no longer functioned as the sole source of wealth and power and had thus become anachronistic and irrational. From Bentham’s perspective, Blackstone had not only upheld this ‘irrational’ division of real and personal property, he had also hierarchised it by privileging real property (Sokol 1994: 294) over other forms of property. And indeed the need to reform property law to account for growing forms of wealth holding was the basis of Bentham’s submission to the 1828 Real Property Commission (Sokol 1994: 287).

In his submission, Bentham proposed a unified system of property law that would encompass ‘newer proprietary rights such as shares in companies and copyright’ (Sokol 1994: 287) and that would ultimately ‘take its place in the civil law, forming part of a code of law coherent in all its part and comprehensible to all’ (Sokol 1994: 300). Significantly, the agenda of the Commission itself was to promote efficient management and security of land title following the enclosure movement, which had ‘made precarious many traditional rights in common land’ (Sokol 1994: 290) and had begun to challenge the adequacy of the common law to enforce this programme (see Brown and Sharman 1994). Responsive to the ‘needs’ of law at the time, this Commission belonged to a changing operation of law as a ‘scientific administration’ of positive principles. The reforms of the Commission, Bentham hoped, would form ‘a universal jurisprudence’ to ‘provide the necessary concepts of rights on which to base the rational utilitarian system of property law’ (Sokol 1994: 300). Bentham had criticised the inadequacy of the common law for its inconsistency and confusion of the categories of real and personal property in his critiques of Blackstone (Sokol 1994: 292). But the common law property regime was unsatisfactory to Bentham not merely because it was outdated, but because it vested law’s legitimacy in nature.

Bentham’s critique of natural rights in property was part of his broader radical philosophy of legal positivism and utilitarianism: ‘Bentham, conceiving himself as the Newton of the moral world, combined law’s completeness with its limitless sovereignty in the prospect of an eventual attainment of total and “certain order” ’ (Fitzpatrick 1992: 57). The impact of Bentham’s philosophy on the development of modern property was twofold. First, his rejection of the person–thing relation in Blackstone’s natural rights theory of property produced the notion of property as a person–person relation. Second, the proposed integration of the distinct bodies of personal property and real property into one broad body of property rights, according to the person–person model of property, transformed the locus of social wealth from land, to law or legal right. In effect, what Bentham’s theory of property achieved was the separation of land from the idea of property and from the body of law itself by ‘elevating’ the entire basis of property from natural rights to cultural rights: ‘Bentham anticipates the modern tendency to regard all rights secured to an individual by law as “a species of normative property belonging to the right of the holder” ’ (Hart, cited in Postema 1986: 174). To Bentham, the function of law was to protect the security of the individual citizen and the government by protecting the institution of property rights (Postema 1986: 175). The integration and codification of real and personal property into a positive scheme of private property rights Bentham argued was the means by which to achieve such a ‘civilised society’. The expansiveness of Bentham’s idea of property proposed that ‘all forms of social interaction available to human beings except political relationships and institutions fall under the concept of property’ (Postema 1986: 174).

In Bentham’s time, the economic and legal primacy of the category of real property was diminishing and so law could no longer be conceptually dependent on ‘any exterior reality’ (Fitzpatrick 1992: 56) for its authority. The particularities of reality had to be rejected or incorporated into a universal model of law that would transcend place (Fitzpatrick 1992: 56). Bentham’s property was law and the law was property: ‘Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases’ (Bentham 1978: 52). Both law and property were cultural, and thus dephysicalised, Bentham argued, they existed only as abstract logical forms.

Bentham’s claim that there is no property in and through nature does not undermine the logical bases of Locke and Blackstone. The anthropocentric logic of the nature/culture paradigm that constructed the physical/metaphysical and body/mind dualisms, for example, is deployed by each theorist to rationalise the authority of their particular concepts of property. Nature was always culture’s other. For Locke, nature had replaced God and natural rights therefore replaced divine rights. Bentham’s idea of positive law replaced Locke’s whole notion of transcendent authority with rational immanence. Bentham’s theory of law did not need to appeal to either God or (by parallel) nature, because it was self-legitimating and guaranteed by positive institutions and processes. Nevertheless, the instrumentalist view of nature was common to both theorists. Bentham, like Locke, conceived of nature as something to be cultured: ‘Who has renewed the surface of the earth? Who has given to man this domain over nature – embellished, fertilised, and perfected?’ The answer, of course, is the ‘beneficent genius’ and ‘security’ of law (Bentham 1978: 56).

Bentham’s theory of property separates people and place, defining people and culture in opposition to land and nature. So did Locke and Blackstone. Bentham’s difference from his predecessors is that the instrumentalist value of nature of his theory of property is not defended, it is assumed. For Bentham, the subordination of nature to culture is already accepted whereas Locke had linked the subordination of nature to law’s agency. In Locke’s theory of property, property was the abstract sign or signifier and place was the reality that was signified. But Bentham’s theory of property abstracted place even further – by removing place from the equation altogether. There was only one part of the property equation – property. All that property signified, according to Bentham, was property:

In other words, the sign is not experienced as arbitrary but assumes a real importance. As a consequence, the material reality that the sign was commonly supposed to point to crumbles away to the benefit of the imagination, which is no more than the over-accentuation of psychical reality in comparison with material reality.

(Kristeva 1991: 186)

The object, or ‘thing’, of real property, land, is erased by Bentham’s insistence that it represents nothing at all, except the abstract ‘right’ to which it is attached. Nature, the physical realm is concealed by the ‘self-sufficient determination of positive law – the law posited by the sovereign’ (Fitzpatrick 1992: 54). This is precisely the conclusion of Bentham’s positivist programme. The meaning and origin of law is entirely self-referential.

To say that ‘property is entirely a creature of law’ (Bentham 1838: 308) is to argue that ‘the origins of property just are the origins of law’ (Postema 1986: 184). By asserting the omnipresence of law/culture and the absence of nature, Bentham ‘brings to light, that which ought to be hidden’ (Freud 1990: 345) – the question of the origin of the authority of law: ‘The question and the quest are ineluctable, rendering irresistible the journey toward the place and the origin of law’ (Derrida 1992a: 192). This question of origin subverts Bentham’s idea of property precisely because, being vested in positive law itself, property is without origin. Bentham approaches the question thus:

What is it that serves as a basis to law, upon which to begin operations … Have not men, in the primitive state, a natural expectation of enjoying certain things, an expectation drawn from sources anterior to law?

(Bentham 1978: 52)

His answer is that there was and remains a ‘savage’ and ‘very limited’ form of possession outside the law but that it is ‘miserable and precarious’. Indeed, these very ‘physical circumstances’ are so dire that they necessitate or give rise to law:

A feeble and momentary expectation may result from time to time from circumstances purely physical; but a strong and permanent expectation can result only from law.

(Bentham 1978: 52)

For Bentham, the origin of the law is the happy and inevitable miracle of civilisation. Indeed the ‘force and origin’ of Bentham’s law derives ‘purely from its intrinsic being’ (Fitzpatrick 1992: 55).

After briefly celebrating this rupture from nature, Bentham’s Cartesian focus shifts swiftly from the abject physical condition at the origin of law, to its beneficial abstract consequences. Bentham’s movement from the real to the abstract enacts the ‘scheme of elevation’ (Derrida 1992a: 193) that Freud described in his account of repression at the origins of morality:

The scheme of elevation, the upwards movement, everything that is marked by the prefix super is here as decisive as the schema of purification, of the turning away from impurity, from the zones of the body that are malodorous and must not be touched. The turning away is an upward movement. The high and the pure, are what repression produces as the origin of morality, they are what is better absolutely, they are the origin of value and the judgment of value.

(Derrida 1992a: 193–94)

Bentham’s property seems to turn away from the primitive possessions hidden in a cave and the ‘impenetrable forests, sterile plains, stagnant waters and impure vapours’ of ‘savage nature’ to the ‘healthy and smiling’ ‘cultivated fields’ of ‘peace and abundance’ (Bentham 1978: 56). But Bentham’s movement conceals, rather than departs from, the physical realm. Nature is not somewhere else; it is covered over by law. Bentham’s repression of nature forgets the ground on which it stands: ‘The law, intolerant of its own history, intervenes as an absolutely emergent order, absolute and detached from any origin’ (Derrida 1992a: 194). Denying its ‘terrestrial dimensions’ (Fitzpatrick 1992: 55), Bentham’s theory of dephysicalised property endows his concept of law with ‘the qualities of a fable’ (Derrida 1992a: 199), which deconstruct the possibility of his a-historic positivism. Bentham’s theory that property is a dephysicalised relation between persons demonstrates that the paradigm of modern property law is, as Karl Marx called it, the ‘illusion of jurisprudence’ (Marx 1975b: 142).

5.2.2 Utilitarian property: J.S. Mill

J.S. Mill’s idea of property had a moral purpose that required the alienability of the physical, as advanced in Bentham’s positive theory of property. Mill’s Principles of Political Economy (1878) expresses the idea that the absence of place in property permits the priority of the state and its economy. But Mill’s theory of property differs from Bentham’s in that Mill’s property has a physical function, even if it has no physical value. Mill’s utilitarianism does not erase ‘things’ from the equation of property because things have a use value that depend on their physical attributes as a ‘thing’: ‘When the property is of a kind to which peculiar affections attach themselves, the compensation ought to exceed a bare pecuniary equivalent’ (Mill 1978: 97). Mill admits here that real property exists as a distinct category of property in its physicality and particularity, yet he simultaneously asserts that this real property right can be alienated and exchanged, like other property rights.

In his critical reflection on the state of private property, Mill casts grave doubt over the ‘discretion of a class of persons called landlords who have shown themselves unfit for the trust’ of the community that ‘has too much at stake in the proper cultivation of the land’ (1978: 97). Mill’s idea of a proper use of the physical as ‘a railroad or new street’ is a morally qualified utilitarianism, defined socially rather than individualistically. Importantly, Mill’s better and morally sound use of place transforms its very physicality or thingness into a semi-real, semi-abstract space or meta-place, the predominant function of which is to carry the common public citizen to and from their particular private places. The lack of physical particularity in public spaces, such as roads and railways foreshadowed in Mill’s thesis, anticipates and avails the cultural development of dephysicalised property in the following centuries.

Mill’s acknowledgment of the physical remains based on morality not nature. Nevertheless, it remains quite different to Bentham’s radical eclipse of the category of real property. For Mill, nature is valued utterly in the pragmatic terms of its function in the utilitarian project and thus all private property is secondary to the needs of public property and the sovereignty of state:

Landed property is felt even by those most tenacious of its rights, to be a different thing from other property … [but] the claim of the landowners is altogether subordinate to the general policy of the state. The principle of property gives them no right to the land, but only a right to compensation for whatever portion of their interest in the land it may be the policy of the state to deprive them of.

(Mill 1978: 97)

Yet Mill’s prioritisation of public property over private property is consistent with Bentham’s positivist scheme of property rights because the physical loss of property as a thing, as realty, can be neutralised by compensation or purchase and thus can participate in the grander economy of the state and security of its citizens.

Mill’s economy of property stops short of a complete commodification of the physical realm. For him, the function of compulsory acquisition, for example, is not as part of a monetary economy, but rather as part of a political, explicitly utilitarian, programme. It is the utility, not the profitability, of the land that matters. Certainly the utilitarian economy and the monetary economy of property both construct nature as the negative other of the law, but where Mill’s theory of property attributes a negative meaning to nature, Bentham’s theory of property makes nature meaningless.