08 October 2012

Property and Persons

I confess to being underwhelmed by 'Persons, Property, and Community' by Margaret Davies in 2(2) feminists@law (2012).

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.