Chapter 7

Placing property

The land is neither prison nor palace, but a decent home.

(Morris 1984: 96)

Property law today is a tapestry of concepts of possession, ownership and title. Its threads are of different lengths and colours and some of the images it embroiders are fading with time. It is not adequate to an understanding of law to approach these central concepts believing they come from nowhere. The vocabulary and discourse of property does not transcend place and culture; it is not universal. Law has origins in time and in place. Property law is spoken of today in abstract terms. Property theorists have even contended that property is an illusion. In such an illusory relationship, how real can ‘real property’ be? What is the proper place for it? We are at a distance today from the time and place of origin of our contemporary property law, but we must interrogate the conditions of this history and geography to adequately grasp whether these conditions sufficiently reside here and now to warrant the residue of this past in our words today. Because we ‘cannot be concerned with the law, or with the law of laws, either at close range or at a distance without asking where it has its place and whence it comes’ (Derrida 1992a: 191).

Thomas Kuhn argued that paradigms succeed because they are simultaneously ideological and practical, that is, they are able to make sense of the world and they are physically possible. In Kuhn’s theory, a paradigm reaches crisis not only because other ideas or frameworks of meaning seem more plausible than the current paradigm, but because other practices seem more viable. The crisis of one paradigm and the ‘shift’ to another are, to Kuhn, not instances of progress, but a matter of adaptation. A paradigm is not part of the imagined teleological movement from the primitive to the civilised, a process of perfection (Kuhn 1996: 170–171). Rather a paradigm is a function of time and place; it succeeds only within particular cultural and natural conditions. Importantly, Kuhn makes this point by reference to Darwin’s theory of evolution, which he says:

[R]ecognised no goal set either by God or by nature. Instead, natural selection, operating in the given environment and with the actual organisms presently at hand, was responsible for the gradual but steady emergence of more elaborate, further articulated, and vastly more specialised organisms.

(1996: 172)

Following the metaphor of evolution, Kuhn argues that paradigms result, like organisms in any given environment, ‘from mere competition … for survival’. It is difficult to accept that change and development are not part of a progress toward a specific goal because we are more familiar with the notion of telos than with the notion of habitus. Kuhn concludes that it is important to regard the specialisation and development of ideas not as paths to truths or predetermined goals, but as products of particular historic and geographic circumstances.

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