Chapter 1

Revolutions are inaugurated by a growing sense … that existing institutions have ceased adequately to meet the problems posed by an environment that they have in part created.

(Kuhn 1996: 92)

The devil is not in the detail but in the framework within which the detail is perceived. That is not something you can set out to look for; and if you stumble upon it, because distracted by incongruities when working within the received framework, you must resign yourself to being a heretic.

(Milsom 2003: 107)

1.1 Paradigm, property, place

Peter Spencer is a farmer in New South Wales, Australia. In 2007 he organised National Chop down a Tree Day. For almost 50 days from late 2009 to January 2010, he protested against NSW laws that regulate and prohibit the felling of trees and clearing of vegetation on private land by occupying a platform 10 metres up a wind-monitoring tower on his property and refusing to eat. His ‘hunger strike’ made national headlines and attracted attention to the tension between property rights and environmental values in contemporary law. High-profile Senator Barnaby Joyce addressed farmers who subsequently marched on Parliament House, Canberra to demonstrate their support of Spencer and their opposition to native vegetation laws saying:

[T]he Australian people are starting to say we’ve had enough of being signed up to these agreements, where you get the kudos, or the happy clapping in Bali or some conference, but the bill goes home to working families, the bill goes home to the family farm.

(Senator Joyce cited in Harrison and Cubby 2010)

The point he makes resonates with many farmers and articulates the equation of property rights with liberty and environmental law with its deprivation. The central issue in the debate is compensation and whether it is the ‘solution’ to the tension depends on how property is defined and whether the environment is external that definition:

That no one has a property right to destroy the benefits of a natural system … may seem obvious, yet its opposite has been the (unarticulated) watchword of the developmental economy’s property system.

(Sax 2008: 16)

This book explores the meaning of property in legal and cultural discourse and practice. It contends that the dominant meaning of property, that property is not about real things but abstract rights, can be linked directly to maladapted land use practices and their ecological consequences. As the title of the book suggests, what we see when we look at a landscape is a series of legally prescribed land use practices in action. The point is not that the landscape could or should be devoid of evidence of human interaction with the earth’s systems. The economic base of human life can only be the environment. Consequently, the human occupation of any area of land can result in the exploitation or degradation of that environment for a period of time until lessons are learned and management practices and land laws eventually sustain that society’s occupation of that area (Kohen 1995). The point is: when we look at our landscapes and we see our land use practices and law system in action, what does the landscape tell us about their interaction with the earth’s systems? Lawscape asks what landscapes reveal about law. The answer is that the necessary lessons are yet to be learned and that is due to a particular mindset, a paradigm that detaches people from place, viewing the world not as a network of relationships, but as two separate spheres: culture and nature. This paradigm is, however, in crisis, and this book attempts to weave together the histories, philosophies and geographies of property to find out why.

The source of the paradigm of the contemporary property system can be traced back hundreds of years. American geographer, David Harvey, said: ‘[W]e are, whether we like it or not, inheritors of the Enlightenment tradition and the only interesting question is what we make of it and what we do with it’ (Harvey 2000: 149). The Enlightenment tradition that Harvey refers to is a paradigm, a framework of ideas, values and expectations that both creates and is created by a particular economy. Referring to an economy and its ideological framework in terms of tradition locates the culture of a particular society within the nature of a particular place. Paradigms (or traditions) develop over time with successful cultural adaptation to particular conditions and thus describe not only social relationships but also ecological relationships. Paradigms are the result of an accumulation of knowledge that works in its specific time and place. Thus while paradigms are not universal truths, they are true in a given time and place under a set of particular conditions. Traditions become traditions, they succeed as prescriptions of social order and economy, because they are useful and viable as knowledge and practice. As French sociologist Pierre Bourdieu argued: ‘[T]he rule is not automatically effective by itself … it obliges us to ask under what conditions a rule can operate’ (1990: 76). The conditions under which a tradition or paradigm operate are actual as well as abstract. That traditions are grounded in particular realities suggests that they are not simply inherited – they are made (Kerruish 1999). The paradigms that inform our culture today are not only legacies of the past, they explain the practices of today in terms of time and place. The conditions under which a rule, or paradigm can operate are not just historical conditions, they are ecological conditions, as such they are particular not universal, temporary, not eternal.

American scientist, Thomas Kuhn, argues that paradigms enable and inhibit social and intellectual development in certain directions. He acknowledges the role of nature, the physical world, in the development and crisis of any given paradigm (1996: 69), but his focus is predominantly the intellectual and ideological function of paradigms in science. Kuhn’s theory of paradigm shift argues that one paradigm ends and another begins when the prior paradigm becomes dysfunctional. The function of a paradigm is to be meaningful and practical, to describe, explain and prescribe activity. When the usefulness of a paradigm has, for whatever reason, diminished and another practice or theory seems more useful, the latter may replace the former and become a new paradigm. Again, Kuhn emphasises the role of nature or the physical world in reaching that moment:

The decision to reject one paradigm is always simultaneously the decision to accept another, and the judgment leading to that decision involves the comparison of both paradigms with nature and with each other.

(1996: 77)

A paradigm shift, the conception and creation of a new economy or relation in or to the world, is supported by that world, by its material, environmental conditions. Kuhn’s philosophy of paradigms and paradigm shift is a useful way of thinking about the frameworks that govern legal development and practice, such as property law. In addition to considering the social and intellectual conditions of the paradigm of property law, it is important to consider the physical and environmental conditions of that paradigm. The Enlightenment tradition that we have ‘inherited’ was made and succeeded not just under specific historical conditions but in the specific environmental conditions of a particular place: Europe. The gradual emergence of the modern European tradition of land use and the ‘enlightened’ modern paradigm of property law were neither solely cultural nor solely natural events, but rather ecological events that were made possible by particular climatic, geological, biological, social and technological conditions. Europe is an environment that receives high rainfall and in which ‘vegetation regrows quickly’:

Much of northern and western Europe is still able to support productive intensive agriculture today, 7000 years after the arrival of food production. In effect, Europe received its crops, livestock, technology, and writing systems from the Fertile Crescent, which then gradually eliminated itself as a major centre of power and innovation.

(Diamond 1997: 411)

The paradigm of modern European property relations is anthropocentric. It is a dichotomous model of the world that separates people from everything else, placing people in an imagined centre, their environment literally surrounds and is peripheral to them. Kuhn’s theory of paradigm crisis and paradigm shift allows us to consider the separation of people and place in this anthropocentric model as particular to a specific time and place, developed in and for modern western science, philosophy, economy and law and so, its truths are not universal, eternal or transcendent but historicised and placed. The feature of any given paradigm that makes it successful as a paradigm, but that inhibits self-critique, is that it makes alternatives unthinkable. The current anthropocentric model of the world insists that people are culture and everything else is nature. It becomes difficult if not impossible to critique this model without recourse to external or alternative models or positions and yet these are explained according to the logic and language they attempt to approach from a position of exteriority:

For several millennia now, the western tradition has been dominated by various human-centred views of the cosmos. Nature has progressively been defined as ever more distant from human culture … (In) spite of … many eloquent statements by American Indians, Aboriginal Australians and others, we have very little idea of what a non-human-centred cosmos looks like and how it can be thought to work.

(Rose 1988: 379)

Nevertheless, the current paradigm, like any other, is inevitably subverted by its own failure to describe, prescribe and explain a world that it partly created: ‘Nature itself must first undermine professional security by making prior achievements seem problematic’ (Kuhn 1996: 169). Using Kuhn’s theory, and emphasising the significance of physical conditions in the production and crisis of paradigms, this book attempts to present the ‘achievements’ of modern property law as ‘problematic’ with regard to its material conditions in place:

With legal history, as sometimes with the natural sciences, truly elementary propositions may stand or fall not with evidence of particular facts but with their power to explain all the facts.

(Milsom 2003: xvii)

The paradigm of modern property law describes, prescribes and explains unsustainable people–place relations because it does not situate itself in place. The dysfunction of its propositions is evident in landscapes across the world. When we look at an image of a cattle ranch, a multi-storey carpark or an enclosed and irrigated field of crops, we are seeing the world we have made by our land use practices, which are, in turn, informed by the concepts and norms that facilitate and protect them. The paradigm of placelessness is apparent in landscapes that are not local but ‘can be had anywhere in the world’ (Newsome, cited in Neumann, Thomas and Eriksen 1999: 160). The universalism of modern law is materialised by land use practices. In effect, what we see in a landscape is not a detached and separated physical realm, ‘the land’, but ourselves, our practices and our law – a lawscape.

1.1.1 The paradigm of placelessness

If we wish to have a land that is truly Australian restore we must; for we have custody of an extraordinary assemblage of plants and animals. The converse is that otherwise, as a nation, we will be left to identify with a land that is one giant sheep walk, cattle ranch, mining quarry, farm, or tree-felling operation. Such a land can be had anywhere in the world.

(Newsome, cited in Neumann et al. 1999: 160)

It’s everything. You just can’t pick it up and plonk it down somewhere else.

(The Castle 1997)

Place, or the physical, ‘natural’ world, is predominantly conceived, experienced and articulated anthropocentrically, as something separable and ‘other’ to human subjectivity. Until recently, this dichotomous paradigm has meant that people are seen either as dominated by nature, chained to the physical world or as dominating and transcending it. ‘Western discourses regarding the relation to nature have frequently swung on a pendulum between cornu-copian optimism and triumphalism at one pole and unrelieved pessimism … at the other pole’ (Harvey 2000: 149). Despite these evaluative swings, anthropocentrism is commonly associated with an instrumentalist evaluation of the things in the world, that is, solely in terms of their use within the processes and products of human life (Smith 1998: 4).1

Anthropocentrism characterises modern property law according to which place, in itself, is meaningless. Indeed, the foundational history of modern England and her former colonies depended on an anthropocentric philosophy and practice that made possible the imposition of English law in foreign countries, which principally operates via the notion of the alienability

1 For detailed critiques of anthropocentrism, see Garner (1997); Midgley (1996); Sterba (1998).

of places and things. This concept or philosophy of place presents no obstacle to the satisfactory resolution of disputes over property in which the philosophy is shared and uncontested. However, when cultural experiences or philosophies of place are in dispute, a satisfactory resolution is ‘problematic’.

The anthropocentric paradigm of modern property law creates and is created by theory, education and legal and cultural practices. Property law scholar, Kevin Gray, concluded in 1991 that property ‘does not really exist: it is mere illusion’ (1991: 252). Law teachers and practitioners agree with Gray and repeat the time-honoured Hohfeldian concept of ‘dephysicalised’ property: that property is not about things but about people or, rather, about relations between persons. Consequently, the questions that modern property law excludes are ones that concern materiality. ‘There is a long-standing and understandable reluctance to think about property in material terms’ (Blomley 1998: 572). This is one of the reasons why modern property law struggles to address adequately the claims of dispossessed Indigenous peoples. How would Australian native title claimants, for example, respond to Gray’s conclusion that property is an illusion? This book does not set out to answer this question; its concern is twofold: to ask how property came to be regarded as ‘illusory’ and to suggest that this conception indicates that the validity and utility of the dominant paradigm of property are ‘manifestly running out’ (Brady 1991: 9). Why does this matter? Because property law is more than a regulation of abstract relations between people and place, property law is a regulation of real and particular uses of land and non-human things.

The economic significance of property law is well appreciated in commercial terms, but it is less well appreciated in terms of its ecological base. In other words, property law is not usually considered a major determinant of the ecological economy. This is a strange view of the world because the economy of any species is contained within the larger economy of the earth’s systems. The words economy and ecology have a shared etymology in their root ‘eco-’ from the Greek word oikos, meaning ‘home’. The logos of ‘ecology’ means ‘knowledge’ and the nomos of ‘economy’ means management or regulation. Ecology means knowledge of the home and economy means the regulation or management of it. ‘If we do not know our home we cannot manage it? If there is no healthy Earth community, there can be no healthy human community. If there is no ecological capital, there can be no financial capital’ (Kumar 2007).

Viewing property law in the broader framework of economy and ecology, it is apparent that property is at the heart of the environmental changes that it originally presented as the legitimate basis for entitlement to property when the English commons were enclosed and the lands and peoples of foreign countries were appropriated. Thinking and rethinking the paradigm of modern property law in terms of its material application and consequences is important because it has not been sufficiently undertaken to keep the questions that should be unthinkable from being asked. And, because ‘ “reality” is not in the habit of offering up its meanings already clarified, with a set of instructions for use attached’ (Muecke 1992: 4) an effort is required to understand the relationship between law and place and to better align the two.

Lawscape does not advocate a reversal of the hierarchy of the paradigmatic categories nature/culture neither does it advocate a ‘harmonious’ combination of the twin realms. Rather, through an analysis of modern property law, its origins, developments and consequences, the book argues that because the categories of nature and culture do not exist in reality, they should not serve as the foundation of property relations. Indeed, it is precisely because there is no neat split or separation of nature and culture in the world, that the concept of land-as-commodity fails to make sense. What is needed is nothing short of a paradigm shift. Precisely such a shift was foreshadowed and is required by the land claims of dispossessed Indigenous peoples and environmentalist critiques of property. Is property an illusion? Property is what the law says it is. But, as Indigenous peoples, farmers and scientists have learned, the law is also, partly, what the land says it can be. In other words, the particularities of land, of place, determine the material limits of what is ultimately, authoritatively and sustainably local law and economy.

The inadequacy of the paradigm of modern property law is considered here in terms of the adaptation and maladaptation of people to place. Placing property law, making it responsive to the material conditions of its possibility means critiquing its anthropocentrism both from within that paradigm and with a view to an alternative paradigm. While the idea of biodiversity is not explicitly theorised here, the arguments advanced in the following chapters are imbued with an interest in the possibility of law’s connection with place not dichotomously, but as part of an ecological network.

The law’s insistence that property is not about things, that property is not really ‘real’, that property is ‘dephysicalised’, render the definition of property lofty and elusive because definitions necessarily draw limits and edges, observe finiteness. The trouble with defining property as ‘dephysicalised’ is that it is not – property relations, by which I mean the relationships between people and place, are material relations – something the law finds deeply problematic. The dominant value of property in contemporary legal practice and culture is as a commodity. As such, property has the indefinite quality of being fungible: infinitely tradeable, limited neither spatially nor temporally. But the physical ‘things’ that are traded and owned as property are physically definable and specific, they have limits. Land, for example, conceived not as a commodity but as part of a particular place, is radical to property law. The limits of land, its qualities and conditions are definable things. Yet, property law insists that place is irrelevant to property law. The universality of the modern law and economic commodification of property can function only on the basis that both law and property are general not particular, global not placed. Specifically, the placelessness or atopia of law was the ideological condition of the colonisation of the world and the imposition of alien regimes of property.

The absence of place is the condition of the possibility of a universal and universalising law that extended ‘across the whole globe, like a coinage reducing all things to a common measure’ (Thompson 1991: 164). In many ways, the problem of defining property can be related to the problem of defining anything universal: being neither particular nor contextual, it lacks bearings. Lacking or refusing the sense of its locality, property would logically prove difficult to find.