It is an edited version of a Leverhulme Public Lecture at the University of Kent earlier this year. Davies explains that
We use the terms ‘persons’ and ‘property’ in our everyday lives quite happily, without needing to give them a technical meaning. On the whole, we seem to know what they mean and how to use them.
Lawyers also use these terms routinely and in the quite ordinary course of events. Like many legal concepts, however, they suffer from much ambiguity: both the objects to which they refer and their underlying concepts are uncertain and the subject of frequent political controversy. Indeed, in both cases, it is doubtful whether an ‘underlying legal concept’ even exists, such is the difficulty of defining them clearly. The problem is amplified because the everyday usages of the terms ‘persons’ and ‘property’, are sometimes at odds with legal definitions, and in this sense, these terms are no different to many others. Having said that, law is embedded in social practice and the distinction between the legal and the non-legal is a convenient fiction maintained by law. In consequence, there is often both cross-fertilisation of ‘legal’ and ‘everyday’ or social meanings, as well as a certain productive tension between them.
I wish to do three things in this paper. First, I wish briefly to introduce some of the difficulties with the concepts of persons and property, what they refer to, and how they are used. Second, I will explain what I see as the relationship between these two ideas – how they are supposed to be diametrically opposed, and how they are in fact inextricably linked. Up to this point I will be selecting from and summarising a mountainous literature on the topic. The third and more substantial part of my paper will take the matter in a new direction. Here I will try to capture new ways of thinking about property which in some ways loosen the property-person nexus, without breaking it altogether. In essence, these new approaches introduce values associated with the community, the environment, and our material futures into our thinking.
Before commencing, I should point out that there is very little that is unquestionable or fixed in this analysis. Marilyn Strathern says that ‘Anthropologists use relationships to uncover relationships’ (2005: vii). It is also the case that if anything can be said with certainty about my topic it is that the property-person thematic is entirely about layers and layers of highly dynamic relationships. These relationships implicate people, communities, ideas, politics, and the physical world. They are intrinsically impossible to pin down or conceptualise in their entirety, so my aim is simply to draw out a few significant threads.She concludes -
Generally therefore, recent scholarship has seen the development of a more complex notion of the person as well as a greater emphasis upon the community and environmental imperatives underlying the definition of property rights. In conclusion, I would just like to make a few comments about how these altered conceptions of persons and property are linked.
First, we are moving away from an imaginary based on boundaries, self-containment and control, to a consciousness which is relational, contextual, and deeply social. The strong nexus between persons and property must now be seen as mediated by values associated with the commons, the public domain, and the numerous communities within which we find ourselves. It is simply no longer possible to remove shared interests from questions of identity and ownership.
Second, thinking about property and persons relationally means that the image of the quintessential owner shifts from isolated and powerful individuals, to connected individuals, groups, and even marginalised people (van der Walt 2010). The development of native title in Australia, for instance, is based on groups as the relevant interest bearers (a conceptual shift which remains, nonetheless, inherently deficient in practice).
Third, we can also see a different approach to the ever-present issue of distributional justice: in addition to thinking about who owns and how much, distributional issues can also be defined internally to property – that is, in relation to something which I own, what is the distribution of property rights between me and the community? Instead of simply thinking about shifting property around between people, we are beginning to shift and rebalance what property means in different contexts. The flexibility of property discourse can facilitate this change. Fourth, it is not possible in this or any other context to speak of a single undifferentiated community. Communities are obviously multiple, contingent and dynamic. It is therefore not possible to formulate general principles about property and persons which will hold for all situations.
And finally, persons and property are artificial legal constructs the meaning of which cannot be governed by law alone. They circulate through many layers of social relationships and networks. They constitute and are produced by material and symbolic economies. Uncovering a few threads in these relationships begs a multitude of questions about others.There is another perspective in Shoalhaven City Council v Ellis [2012] NSWLEC 189, another 'free state' or 'sovereign citizen' dispute, with the Court stating
The procedural history of the five proceedings may be briefly mentioned. On 1 June 2012 the proceedings were listed for directions. On that occasion, one "Elder john" purporting to be from the "Free State of Australia" appeared as agent for the respondents. Pepper J directed that the five proceedings be heard consecutively, listed them for final hearing on 26, 27 and 28 September 2012 and gave procedural directions. Her Honour noted that the address for service of all the respondents in the proceedings was c/- Elder john, Free State of Australia, Interim Parliament House of the People, 65 Henry Street, Werris Creek 2341, Australia. On 20 July 2012 the proceedings were before Craig J for directions. One of the directions that his Honour made was that if, following service of the respondents' points of defence, the applicant seeks leave to have access to the property of any of the respondents, then the applicant have leave to serve on short notice a motion to that effect, returnable today. His Honour directed that for that purpose service by facsimile would be deemed to be sufficient service of the applicant's notice of motion.
Why is inspection sought? It is because of a letter dated 7 August 2012 from the "Free State of Australia" to this Court purporting to be under the seal of the "Free State of Australia". The Council reasonably infers that this letter is intended to be the points of defence that on 20 July 2012 Craig J ordered the respondents to file on or before 7 August 2012. The letter states that the "defendants rely on all materials filed with the court". Among those materials is a document headed "Affidavit by Sui Juris Citizen of FSA" affirmed by one of the respondents, Mr Mills, and purporting to be witnessed by Chief Elder/Chief Justice, the Hon Lester Woodforth FSA and to be under the seal of the "Free State of Australia". It is not clear but it appears from this document, and the Council expects, that the respondents will contend at trial that if the Court finds there was no development consent as alleged, then the Court should exercise its discretion to refuse relief on the bases that, first, the properties are safe from bushfires and, secondly, the effluent systems on them are satisfactory in accordance with the requirements of the "Free State of Australia". Consequently, the Council wishes to adduce evidence concerning those two matters and concerning whether or not the buildings and structures comply with the Building Code of Australia. Inspection of the properties is sought for that purpose.
The respondents have not appeared at the hearing of the motions today. However, the Court has received by facsimile an unsigned letter dated 9 August 2012 from the "Free State of Australia" bearing a seal of that name submitting that (emphasis in original):
(a) no consent is granted for access onto private lands "held within the Jurisdiction of the Independent Religious State, Free State of Australia (Religious State) regardless of any order or otherwise by the court";
(b) "Entry without consent is taken as trespass and a premeditated violation and attack on Human, Civil and Political Rights rendering all rights to act according to all privileges awarded under the Natural Law of Almighty GOD (GOD given Liberty and protected under s 116 of the Commonwealth Constitution...), the Common law of England (that which includes the Great Charters of Liberty - Magna Carta , Bill of Rights...), Imperial law" etc;
(c) the Court is without jurisdiction;
(d) "78B notices" have been transmitted concerning a constitutional issue;
(e) "FSA relies on documented evidence provided without reservation to filing further documentation as it sees fit"; (f) "FSA retains Superior Jurisdiction under the Natural law of Almighty GOD" etc; and "All rights reserved - Independent Religious State 'Free State of Australia' and the religious order 'Ministry of Jesus Christ Our Redeemer'".
