Conceptual origins

Chapter 2
Conceptual origins

Does a field make progress because it is a science, or is it a science because it makes progress?

(Kuhn 1996: 162)

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:

Language can not be seen as transparent or neutral but as a real force of its own. Language does much to shape both who we are – our very selves – and the ways in which we observe and construe the world.

(Boyd White 1990: xi)

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.

The central aim of this chapter is to extend the discussion of language and property to consider its parameters and the players of the people–place relation: nature and culture, in more depth. Nature and culture emerge as discursive constructions that signify not different and independent concepts, but rather the positive and negative values of the same meta-concept (which I will refer to as nature/culture). The chapter contends that this paradigm of nature/culture functions as the condition, as well as a parallel to, the coupling of people/things in legal thought. The epistemology and taxonomies of nature/culture and people/things are the primary means by which the law of real property orders the world. The notion of order is important here because it connotes both classification and force, suggesting that property law is a particular practice of structuring people and place as separable and separate.

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

1 All etymological references are to this dictionary.

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 relationship between property and identity continued and remained an important one in medieval England and in the early common law view of land. Legal historian David Seipp wrote: ‘[L]and had significance greater than the sum of its economic production and use value. Land was also an important component of identity’ (1994: 46). For this reason, disputes over land were addressed by reference to location and use rather than to abstract legal categories – in other words, land was treated differently, because it was recognised and valued materially (Seipp 1994: 49). In his archival research, Seipp found that the word ‘property’ in Anglo-Norman texts from the 1180s to Middle English texts from the 1380s meant an ‘attribute’ or ‘characteristic’ of a person or thing. However, there was a secondary and less common usage of the word ‘property’ in medieval England and this was a person’s interest in having a thing. Usually the context of this meaning was religious ‘and the connotation is overwhelmingly negative’ (Seipp 1994: 69):

Dozens of surviving manuscripts from the fourteenth and fifteenth centuries praised monastic establishments for holding all goods in common and shunning ‘property’, or condemned them for doing the opposite. To have ‘property’ of goods (or goods ‘in proper’) was a sin, and monks guilty of this vice were denounced as ‘proprietaries’ or ‘owners’.

(Seipp 1994: 69)

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.

The legal discourse of property rights has come to dominate the cultural discourse of property generally. Even so, numerous legal scholars and educators have noted that older, even ancient definitions or concepts of property as something real and particular, such as land, have persisted in cultural discourse. There are even, still today, individuals and communities who rationalise their property interest in terms of their identification with the land over generations. And so, as Australian legal scholar, Margaret Davies argues: ‘[T]here is a tension in the legal idea of property between seeing it as a disaggregated bundle of rights and seeing it as something more solid, specific, and identified with a particular person’ (2007: 27). Canadian legal scholar David Lametti also observes that ‘the intuitive appeal of making things the mediator of the relationship is evidenced by the pervasiveness of “thingness” in the lay person’s understanding of property’ (2003: 354). But despite residual and persistent views of property as something real and specific, the dominant view of property, in both legal and cultural discourses, is one of abstract entitlements as between persons which are alienable from, rather than proper to, a person. Indeed, the contemporary usage of the word ‘property’ refers almost always to something fungible, rather than something distinctive and that is detachable from, rather than attached to or even integrated with, the identity of an individual or community.

2.3 Nature/culture

When we say nature, do we mean to include ourselves?

(Williams 2005: 67)

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:

Man, if we look to final causes, may be regarded as the centre of the world; in so much that if man were taken away from the world, the rest would seem to be all astray, without aim or purpose … and leading to nothing. For the whole world works together in the service of man; and there is nothing from which he does not derive use and fruit … insomuch that all things seem to be going about man’s business and not their own.

(Bacon, cited in Marshall 1994: 184)

According to this model, people are not human in the sense of being a physically determined species – rather they are human in the sense of being a culturally determined and distinguished species from all other uncultured species. Cultural practice exists on a linear scale of development that is regarded as evolutionary. The evolutionary line stretches from nature at one end to culture at the other end. Nature and culture are thought to be as different as it is possible to be. They are opposite. They are not, therefore, two distinct concepts, but two poles of the same meta-concept, nature/culture. This meta-concept or paradigm of people–place relations holds together what Foucault (1973) called the ‘order of things’ in modern discourse. This modern discourse classifies things according to their location on a grid of arbitrarily determined qualities and properties that they either lack or possess in relation to other things. This grid is imposed onto a view of the world that perceives and characterises things not according to their own particular qualities but according to the logic of the grid’s structure. ‘By virtue of structure, the great proliferation of beings occupying the surface of the globe is able to enter both into the sequence of a descriptive language and into the field of a mathesis that would also be a general science of order’ (Foucault 1973: 136–137). Natural things are classified as natural ‘not in their organic unity’ but because they conform to a pattern or list of properties. ‘They are paws and hoofs, flowers and fruits, before being respiratory systems or internal liquids’ (Foucault 1973: 137). Nature and culture are not just different concepts or realms; they are mutually exclusive and mutually defining categories of being. Natural things could be classified as much by the cultural qualities they lacked as much as by the natural qualities they possessed. Similarly, culture could be known as the absence of nature and the loss of natural qualities. Together, through their mutual opposition, nature and culture make sense of the system of knowledge that classified them. The dynamic of opposition is central to the process of classification:

An animal or a plant is not what is indicated – or betrayed – by the stigma that is to be found upon it; it is what the others are not; it exists in itself only in so far as it is bounded by what is distinguishable from it.

(Foucault 1973: 144–145)

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).

2.3.1 Masters and possessors of nature

The key word in seventeenth-century epistemology was ‘method’. Method constituted the modern genres of science, philosophy and law. These modern ‘disciplines’ deployed the discourse of method in their development of a bifurcated body of knowledge: reason/emotion, proof/faith. The conceptual division of the world into the categories of nature and culture is vital to the discourse of method. Francis Bacon’s epistemology posits ‘a violent shift in perspective’ (Berman, cited in Hay 2002: 123): rejecting knowledge ‘received’ through faith in favour of ‘active’ scientific inquiry. He argues in The New Atlantis (1626) that the purpose of philosophy and more broadly of human society is the acquisition of ‘the Knowledge of Causes, and Secrett Motions of Things; and the Enlarging of the bounds of the Humane Empire, to the Effecting of all Things possible’ (Bacon 1990: 34–35). Significantly, the idea of knowledge-as-science advanced by Bacon is based on the specific concept of nature-as-object. Humans are thought to be separate from, outside and above the category of nature. The idea of knowledge-as-science nominates humans as subjects: the conductors of inquiry. The objects of scientific investigation are the ‘things’ of nature. It is not possible to be both the subject and the object in the ontology of science: something is either of culture or it is of nature; human or not human; the inquirer or the object of inquiry. The scientific study of people (as groups and as individuals) thus immediately renders them objects (e.g. cadavers, women, Indigenous peoples). In so doing, this inquiry situates these people in the category of nature, at the periphery of

2 It is important to note that although humans were considered a species without equal, this same paradigm also constructed discourses of gender, race, disability, sexuality and age (for example) that constantly transgressed the notion of a homogenous human species. Indeed, the measure was almost always qualified as white, male, able bodied, heterosexual and adult.

3 Attributed to Protagoras.

the anthropocentric model of the world as a biological species. The process imagines that it is possible to isolate the aspect of the object’s being that is subject to the inquiry from the whole of the object’s life (and/or death) as a person such as their intellect, culture, spirituality, family, community and psychology. The force of modern reason finds its power and authority to fragment, sever, alienate and possess the world through the discourse of method. As advanced by Bacon and Descartes, this imagined order of things:

delimits in the totality of experience a field of knowledge, defines the mode of being of the objects that appear in that field, provides man’s everyday perception with theoretical powers, and defines conditions in which he can sustain a discourse about things that is recognised to be true.

(Foucault 1973: 158)

Carolyn Merchant’s history of science The Death of Nature (1980) states that Bacon’s model of subject and object in his theory of scientific method works through the deployment of metaphor, itself a mechanism of objectification. Merchant argues that the discursive category of nature is personified as woman:4

Nature must be ‘bound into service’ and ‘made a slave’, put ‘in constraint’ and ‘molded’ by the mechanical arts. The ‘searchers and spies of nature’ are to discover her plots and secrets. This method, so readily applicable when nature is denoted by the female gender, degraded and made possible the exploitation of the natural environment. As woman’s womb had symbolically yielded to the forceps, so nature’s womb harboured secrets that through technology could be wrested from her grasp.

(Merchant 1980: 169)

The use of the metaphor of woman to define nature renders the project of science more accessible, less radical, because it taps into a ‘pre-existing logical order’ (Ricoeur 1977: 17). As philosopher Helene Cixous argued in her seminal essay ‘Sorties’, pre-existing or prior logical order of man/woman ‘transports us … through centuries of representation’ (Cixous 1986: 63). The success of the metaphor is thus available only ‘within a community whose members had previously assimilated their literal use’ (Kuhn, cited in Harvey 2000: 164). Bacon’s concept of nature thus rapidly crystallises through the use of this metaphor. Yet, while metaphor renders Bacon’s specific concept of

4 The word woman refers not to women or to a particular woman but to a concept of people knowable as a category: whose behaviour and qualities are consistent and finite. I use the word woman to indicate the distinction between the stereotype or discursive category of women and actual women.

nature more readily understandable, it simultaneously undermines its viability as a scientific category. The epistemological authority of science and law is contingent upon the purity of knowledge: absolute truths ‘found’ by objective method. The understanding of the concept of nature through metaphor contaminates the scientific category of nature by conflating it with a cultural value. David Harvey concludes: ‘[W]e find that the values supposedly inherent in nature are properties of the metaphors, of the human imaginary internalising and working on the multiple effects of other moments in the social processes, most conspicuously those of material social practices’ (2000: 164).

The material production and operation of science via metaphor indicates that we cannot ‘speak about nature without, at the same time, speaking about ourselves’ (Capra, cited in Harvey 2000: 164). Bacon’s concept of nature binds itself to his concept of culture and in the process advances ontological as well as epistemological claims. The imagined separation of the world into the categories, nature and culture, was not therefore exclusively a matter of discourse and knowledge. It was a way of being and the basis of doing. Descartes’ Sixth Discourse on Method (1637) speaks of method not only philosophically but also in terms of experience and experimentation. The imagined mind/body separation associated with Cartesian philosophy is enacted through the examination of animals (for example) as objects. Descartes argues that ‘coercing, torturing, operating upon the body of Nature … is not torture’ because ‘Nature’s body is an unfeeling, soulless mechanism’ (Descartes, cited in Hay 2002: 125). Descartes advanced a relationship of power through a specific ontological behaviour or, in Foucauldian terms, a practice of knowledge, separating or othering nature from culture.

This violent coupling of the emerging nature/culture paradigm indicates that the discourse of method was based not simply on a binary structure but, more significantly, on an hierarchical order. The conceptual and actual separation of nature and culture was not important in and of itself; it mattered only to the extent that it produced a measure of esteem. Human subjectivity was defined not merely in opposition to its physical ‘environment’, but by its superiority to it, by being the ‘masters and possessors of nature’ (Descartes 1978: 78).

The function of method in philosophy and science is more than the development or acquisition of knowledge in and for itself; it is principally to use nature for the elevation and meaningfulness of humanity. Harvey argues that the reification of nature as a thing – a purely external other – entirely separate from the world of thought deprives nature of having meaning in itself (Harvey 2000: 134). The thingness of nature indicates the absence of any defining quality. A thing is a thing because it is meaningless: ‘Deprived of any autonomous life force, nature was open to be manipulated without restraint according to the human will. Nature became, as Heidegger later complained, “one vast gasoline station” for human exploitation’ (Harvey 2000: 134). More than an epistemological revolution, the age of science carried with it a new ontological order and a new people–place relation. Science continues to make it possible ‘to describe natural processes in their own terms; to examine them without any prior assumption of purpose or design, but simply as processes, or to use the historically earlier term, as machines’ (Williams 2005: 76).