Conceptual origins

2.1 Introduction: separation of people and place

The separation of nature from culture in the foundational history of contemporary social, legal, geographical and geopolitical order breathes logic into the uncanny practices of current laws and crises about land. This chapter explores the origins and power of this theoretical framework and its importance in the development of contemporary law and, specifically, how it came to dominate a particular understanding of property. In this continuing history, law constructs itself as a metaphysical discourse that simultaneously constitutes and is constituted by the absence of the physical. In property law, this ‘dephysicalisation’ of the world began by dividing the people–place relationship into the active agents of the property relation, ‘people’, and the passive objects of the property relation, ‘things’. However, the passive function of ‘things’ within this property equation means that those ‘things’ in the biosphere are not, in fact, irrelevant to property law – they are vital to it. This is because the ongoing practice of property law depends entirely on a very particular, instrumentalist value of the biosphere. This view or philosophy of the natural world or ‘nature’ legitimises current modes of the production, distribution and consumption of those ‘things’.

The chapter begins with a brief exploration of the language and discourse of property. Legal scholar James Boyd White, in his essay on language and law, suggests a view of people as creators of their world rather than mere players in it. Language is not merely a mode of communication in that world, it is a technology: it makes things:

This chapter examines precisely how language shapes ‘our very selves’, our psychic world and extends this idea to examine how language shapes the physical world and environment, not only our ‘selves’, but also our ‘others’, the ‘things’ we claim to own. ‘Property is a way of looking at the world, as well as a means of sharing it out’ (Langford 1991: 4–5). Despite the contentiousness of remarking that humans bear an enduring, or at least serious, impact on the natural environment, ‘there is increasing public acceptance of the idea that much of what we call “natural”, at least as far as the surface ecology of the globe and its atmosphere is concerned, has been significantly modified by human action’ (Harvey 2000: 119). To accept the connection of people and place proposed by critiques of environmental (mis)management is to recall an integrated relationship between people and place that confounds the schismatic logic of nature/culture. It is a relationship revealed in the etymology of property.

The etymology of the word ‘property’ reveals a strange inversion of the people–place relationship that it originally described. Originally, what was ‘proper to’ a person were the physical qualities or things so closely associated with the person that he or she could be identified by them. In contemporary usage, this definition of property is the secondary meaning of the word and remains only the primary meaning of the word in the physical sciences, e.g. ‘what are the properties of hydrogen?’ The primary meaning of the word ‘property’ today pertains to abstract relations between people, rather than with or over physical things. The mitosis of what was once the singular meaning of ‘property’, identity, into two modern unrelated meanings of the word reveals a separation of the world into physical and cultural realms. The two definitions of property, however, are not different or progressive points on an evolutionary line of cultural development, rather they are antithetical. Today, the defining principle of the dominant meaning of ‘property’ is alienability – the inverse of the original defining principle, identity. In relation to land, the use of the word ‘property’ originally indicated the identification of or defining connection between people and place. The legal priority of the category ‘real property’ articulated a human relationship to the physical or real that mattered more than lesser forms of property. The legal remedies that attached to land reflected this priority. In contemporary usage, however, the use of the word ‘property’ in relation to land indicates the alienability and disconnectedness of people from place. Today, jurists and legal scholars debate the extent to which the category ‘real property’ remains relevant. The historical and etymological development of the word ‘property’ indicates that this legal category is neither inevitable nor enduring. It reminds us that any given property regime or set of people–place relations is limited by a specific set of geophysical and cultural conditions.

2.2 Ancient origins and etymology of property

Many inquiries and studies in real property law begin by asking ‘what is property?’ The attempt to identify and define property in its normative sense, as a social institution, is ambitious and difficult and is usually acknowledged as such by theorist and lecturer alike (see Chapter 5 and 6). The most common remark made in pedagogical and theoretical definitions of real property is that ‘the term “real” is oxymoronic’ (Carney 2001b). So misleading is the word ‘real’ in the law of property today that students and ‘laypeople’ are warned from ‘assuming’ its ‘simplistic’ and ‘everyday’ sense – reality, the tangible and physical. The modern English word ‘real’ derives from the Latin res meaning ‘thing’ and the classical meaning of real property specified the real, tangible and physical nature of property interests in land. However, the ‘real’ in contemporary real property law, the ‘thing’ is unreal – it is an abstract ‘right’ to a thing and not the thing itself (see Chapter 5). The ‘right’ to property exists only in law which makes defining real property difficult and self-referential. Defining property in its contemporary semiotic sense is no less difficult. Tracing the historical development of the word ‘property’ sheds light on the contemporary meaning as well as on the extraordinary shift itself in people–place relations in modern Anglocentric thought and culture.

The history of the English word ‘property’ indicates the way in which modern Anglo-European relationships between people and place have changed over time. The English word ‘property’ comes via the Old French propreté, which comes from the Latin word proprietas meaning ‘proper to, one’s own, or special character’ (Chambers Dictionary of Etymology 2000).¹

The French word propre meaning clean and suitable, originally indicated the sense of something ‘close or near’ and ‘in place’. The Old French and Latin meanings of these words derive from the Greek word idiotes. Idiotes refers to the peculiar nature or specific character of something. The idiotes of something is the quality that makes it distinctive and distinguishable from other things – and it was the means by which ownership could be claimed – the proximity of the thing to the person was considered sufficiently close as to be associated with that person. Thus, to say that ‘this is my own’ would suggest that it is connected to my identity, that it forms part of who I am. The immediate connection here between ‘people’ and ‘things’ in the western origin of the concept suggests that ‘property’ and ‘identity’ were mutually formative. Indeed, the idea of authenticity itself derives from this meaning of property where ‘there is a distinct and particular link between the object and its owner’ (Davies 2007: 25).

The original and primary definition of property is, today, the secondary definition of the word. In its modern usage, the primary meaning of the word ‘property’ divorces property from identity. Indeed, it denotes the alienability, rather than the mutual identification, of the owner and the owned. ‘Property’, in today’s usage, refers to an object or thing whose only relationship to the owner is that it is owned. The transition from the mutually defining relationship of ‘ownership’ and ‘identity’ to a unilateral relation indicates a shift in the ideology and practice of people–place relations. Human subjectivity is defined not via identification or association with a place, but via alienation from it. According to the original sense of ‘property’, the thing possesses me, I belong to it and am identified by it. But according to the modern sense of ‘property’, I possess the thing, it belongs to me. Where place once characterised and identified a person, now place and person are disconnected. The particular and physical qualities of place have been erased from property relations in legal discourse and replaced with entirely social relationships using a vocabulary of rights.

2.3 Nature/culture

The paradigm of nature/culture operates via the dichotomous logic of anthropocentrism. Anthropocentrism divides the world into two categories: human beings and ‘the rest’, then places humans at an imaginary centre of that world:

In the scientific revolution of the sixteenth and seventeenth centuries, the idea of civilisation became the basis of human self-perspective. Human distinctiveness was expressed not in terms of perceptible differentiation from the world but in terms of the uniqueness and status of human development as culture. Humans were thought to be a species without equal and, through their imagined superiority, became the standard or measure by which all other things could be understood and evaluated.² Understanding things in the world was not based on what those things actually were in their own right, but on how they compared to ‘Man, the measure of all things’.³ ‘Everything else’ was everything not human, which, according to the conceptual model of humanity as the centre of the world, became simply ‘the environment’ – meaning ‘the aggregate of surrounding things’ (Macquarie Dictionary 1992). The model ‘assumes that humans are at the very centre of a system of nature’ (Serres 1995: 33). The centre of the model is differentiated from its periphery by mutually exclusive qualities. The relationship between humans and ‘their’ environment is expressed as an opposition between culture and nature. It is a structure fundamental to the discourse of the human sciences and it is ‘congenital to philosophy’ (Derrida 1978: 282–283).