Law on the ground

In Butterfield v. LeBlanc et al, 2007 BCSC 235 states 

 [7] Mr. Butterfield claims that, due to the way punctuation is used in statutes, all governments are corporations. He also claims that Canada does not exist as a federal nation and that the provinces are independent nations. The thrust of the arguments is that the prosecution of him was unlawful, and he should be compensated. 

[8] Much of Mr. Butterfield’s argument is based on the use of grammar that he says leads to a number of conclusions, including that governments are corporations and do not have the authority to pass laws. For example, paragraph 3 of his Statement of Claim is as follows:

This Statement of Claim, is based upon legal definitions provided in “Statutory” instruments; certain internal “governmental” documents; a publication from the Translation Bureau as a special operating agency of the Department of Public Works and Government Services “Canada”; research results provided by individuals working with Justice “Canada” including Ed Hicks, Counsel, Legislative Services Branch of Justice Canada; Canadian Law Dictionary; Legal Maxims; Hansard from House of Commons Debates; and documentary evidence produced either by “government” or by former “government” employees/officers ; or grammar and/or language usage authorities and does not rely upon belief, theory or opinion. 

[9] I quote from para. 31 of his Statement of Claim to illustrate part of the substance of his claim:

That evidence will show the real provinces are not “a part of Canada”, and are independent nations as established by the Statute of Westminster 1931. Definitions provided for the term “province” by both the Federal and Provincial “Interpretation Act” includes only the Northwest Territories, the Yukon Territory and Nunavat, and expressly excludes any geographic area known on the street as a province. i.e. Alberta, British Columbia, etc. 

[10] Mr Butterfield claims that there was a conspiracy against him by the defendants, who are among the conspirators. Paragraph 43 of his Statement of Claim sets this out:

That by 1998-1999, the conspiracy had gained new partners in their wrongdoings with the “Department of Justice” and followed shortly thereafter by the “Province of British Columbia Ministry of Health”. The Complainant [Mr. Butterfield], was then made victim of their “selective prosecutions” and labelled as a “Tax Protestor/Anti-government”. The Complainant is neither a “Tax Protestor” nor “Anti-government”. The evidence will show that the Complainant is only concerned with the welfare of the people and their country, and other than being compensated for the fraud and human rights violations he has suffered, desires only to cause creation of lawful governments capable of creating public laws, and to serve the people. 

[11] Mr. Butterfield claims, at para. 46 of his Statement of Claim, that he was defamed by the defendants and that they maliciously violated his human rights by unlawfully taking part in the prosecution against him. 

[12] The above sets out the basics of Mr. Butterfield’s claim, although it is 59 paragraphs in total. .... 

[15] I will first address briefly Mr. Butterfield’s contention that governments are corporations. Although Mr. Butterfield commenced with a premise and then carried his argument somewhat logically from that premise, the main flaw in his argument on this aspect of his pleadings is that his premise is flawed. 

[16] Mr. Butterfield commenced his argument by relying on The Canadian Style: A Guide to Writing and Editing. This literary guide is published by Dundurn Press Limited “in co-operation with Public Works and Government Services Canada Translation Bureau”. Mr. Butterfield relies on 4.21(c) which states: 4.21 Geographic Terms (c) Do not capitalize a generic term such as city, county, state or province when it precedes the proper noun or stands alone, unless it is used in a corporate sense: 

[17] Mr. Butterfield’s argument equates the word “corporate” with the word “corporation” and he limits the word corporation to mean that related to business. His argument is that since certain words, such as Province and City, are capitalized, then they must be corporations, not government entities. The word “corporate”, however, refers to forming a body politic, which can include, for example, a town with municipal rights. Indeed a corporation can be created by an act of the legislature to form towns. 

[18] Mr. Butterfield overlooks the examples provided in the writing guide that he relies on where the corporate use of the word includes “Buy Province of Ontario bonds”. 

[19] Thus, the claims the plaintiff makes with respect to conclusions flowing from his misinterpretation of grammar fall under Rule 19(24) (a)-(d) inclusive. 

[20] The next primary part of his pleadings relates to his interpretation of the Statute of Westminster, 1931 and his conclusion that there is no such thing as Canada, as well as other legislation which I will turn to momentarily. 

[21] Mr. Butterfield bases his arguments on the debate in the legislature. The date is not clear, but it appears to be 1945. It is a speech given in Parliament by Walter Kuhl, a member from Jasper-Edson Alberta between 1935-1949. He represented the Social Credit Party and later the New Democracy party, then returned to the Social Credit party. Also submitted by the plaintiff are writings of Mr. Kuhl and others on the issue that Canada is not properly constituted as a country. From this “fact”, the plaintiff argues that therefore Canada cannot pass laws which are binding on people who live (as he says) in the independent provinces, including the Income Tax Act. 

[22] Mr. Kuhl argued that The British North America Act, 1867 (U.K.), 30 & 31 Vict., c.3, did not make Canada a federal union. Canada did become a federal state under the Act, but not a sovereign state. The Parliament of the United Kingdom still had the ability to pass laws that were in force in Canada. The passage of the Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. V, c. 4, abolished the Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63, which had permitted the British Parliament to pass laws affecting the then Dominion of Canada. Mr. Kuhl argued, as does the plaintiff, that because the Provinces did not enter into an agreement at this time to form a federation, that none exists. 

[23] At the time of Confederation, several provinces formed the new Dominion of Canada. As time passed, eventually all the provinces joined, the last being Newfoundland in 1949. There was no need for a new agreement to be entered into in 1931. The Statute of Westminster gave sole authority to the Canadian government to pass its own laws, as authorized under the BNA Act, removing the power from the United Kingdom Parliament, save and except regarding amendments to the BNA Act itself. 

[24] The Statute of Westminster did not permit the amendment by the Canadian Parliament of the British North America Act. This could only be done by the British Parliament. It was the convention not to amend the BNA Act without a request from and the consent of Canada. However, Mr. Kuhl continued with his arguments, and indeed published a booklet called Canada: A Country Without a Constitution. 

[25] There are a number of flaws in the argument of Mr. Kuhl, adopted by the plaintiff, some of which are noted above. However, the short answer is found in 1982, when Canada patriated its constitution as a result of the Constitution Act 1982 which is Schedule B to the Canada Act, 1982 (U.K.), 1982 c. 11. As of 1982, Canada was a country with its own constitution and if there was any substance to the suggestion that Canada did not have the ability to legislate, (which there clearly is not), then the foundation for the argument crumbled in 1982.

Regulation

'Immunity Through Bankruptcy for the Sackler Family' by Daniel G Aaron and Michael S Sinha in West Virginia Law Review (Forthcoming) comments

 

In August 2023, the U.S. Supreme Court temporarily blocked one of the largest public health settlements in history: that of Purdue Pharma, L.P., reached in bankruptcy court. The negotiated bankruptcy settlement approved by the court would give a golden parachute to the very people thought to have ignited the opioid crisis: the Sackler family. As the Supreme Court considers the propriety of immunity through bankruptcy, the case has raised fundamental questions about whether bankruptcy is a proper refuge from tort liability and whether law checks power or law serves power.  

 

Of course, bankruptcy courts often limit liability against a distressed company, but here, the Sacklers did not themselves declare bankruptcy. Instead, they added about $6 billion to the pot—compared with $600 billion in annual costs from the opioid crisis, by some estimates—and are allowed to keep any remaining profits. The bankruptcy court justified immunity on the grounds that the Sacklers’ money was protected in offshore accounts and trusts and therefore could not be reached through tort liability—all the better to have them participate voluntarily. In other words, the Sacklers laid the groundwork for their own immunity by sheltering the money they withdrew from Purdue. 

 

We have doubts that a single court should have the enormous power of shielding the Sackler Family from all future civil liability for the opioid crisis, simply to enlarge a settlement. Public health litigation has the power to address root causes of public health crises by disincentivizing unscrupulous actors. Granting these actors immunity may insulate them from public criticism while undermining the important role of courts as an avenue of recourse. Upholding immunity for the Sackler family would lay the groundwork for future executives to ride a company into the ground, at the expense of public health, golden parachute ready and waiting. : https://ssrn.com/abstract=4739307

Biopolitics

'Granular biopolitics: Facial recognition, pandemics and the securitization of circulation' by Mark Andrejevic, Chris O’Neill, Gavin Smith, Neil Selwyn and Xin Gu in (2024) 26(3) New Media and Society 1204-1226 comments 

The COVID-19 pandemic has provided opportunities for facial recognition technology and other forms of biometric monitoring to expand into new markets. One anticipated result is the wholesale reconfiguration of shared and public space enabled by the automated identification and tracking of individuals in real time. Drawing on data from several industry trade shows, this article considers the forms of ‘environmental’ governance envisioned by those developing and deploying the technology for the purposes of security, risk management, and profit. We argue that the ‘contactless culture’ that emerged during the COVID-19 pandemic anticipates the normalization of a form of mass-customized biopolitics: the ability to operate on the population and the individual simultaneously through automated forms of passive identification. This form of governance relies not just on machinic recognition, but on the real-time reconfiguration of physical space through automated access controls and the channelling of both people and information. 

A New York City attorney received widespread media coverage when she was singled out by an automated facial recognition system and denied access to see the famed Rockettes with her daughter at Radio City Music Hall during the Christmas holidays. Reportedly, the venue’s parent company, which owns several New York City venues, including Madison Square Garden, had a database of the employees of law firms engaged in legal action against and was systematically excluding them from events (Hill and Kilgannon, 2022). The incident was, in the scheme of things, relatively minor, but it highlighted the use of facial recognition technology for the management circulation in a way that is likely to become increasingly common as the technology spreads. We open with this example, because the control of access and circulation with automated facial recognition was a recurring theme in our research on the deployment of facial recognition technology during the COVID-19 pandemic. The multiplication of boundaries and checkpoints during the pandemic lent itself to automated firms of identity and status verification. As in the case of the New York attorney, individuals in a crowd could be identified and singled out – based on a range of information including COVID-19 symptoms (such as elevated temperature), past exposure, and their vaccination or quarantine status. Although the focus of this article is on the framing of the utility of facial recognition during the pandemic, the logic of automated governance we examine has broader relevance in the era of remote, real-time biometric identification. 

Indeed, the imperatives of the COVID-19 response – social distancing and contactless-ness – accelerated the development and deployment of passive forms of tracking and detection that enable increasingly individualized forms of social control. As soon as physical proximity came to be viewed as a threat, technologies that provide ‘at-a-distance’ services were enrolled to replace face-to-face activities so as to reduce the potential for viral contagion. At the same time, the goal of preserving as much circulation as possible led to the replacement, in many contexts, of blanket forms of quarantine by targeted forms of screening and sorting. The goal was to allow ‘safe’ forms of circulation while identifying and curtailing avenues of potential contagion. As it transpired, the social distancing imperative became a selling point for the emerging smart-camera and facial recognition industry, which mobilized the promise of efficient, passive, mass-customized monitoring. The result was, as one news account put it, ‘a lucrative market for facial recognition manufacturers’ (O’Donnell, 2020). 

The widespread highly publicized response to the pandemic thus spurred, ‘novel uses of biometric technologies to limit contagion and maintain economic opportunities’ (Van Natta et al., 2020: 1). Our field work in security industry trade shows suggests that for the promoters and vendors of the technology, the pandemic provided additional impetus for highlighting the personalized logics of governance and control already envisioned by the technologies they have been developing and promoting. ‘Frictionlessness’ – for example, could be reframed not just as a means of easing passage through existing checkpoints (such as secure locations, ticketed venues and transit turnstiles), but as a way of managing the proliferating array of borders and access points associated with pandemic management. Office buildings, apartment complexes, shopping malls, and public facilities sprouted checkpoints to monitor vaccine status, symptoms, and potential exposure risks. Some systems regulated access to workspaces based on pandemic occupancy requirements. This ‘thickening’ of the borders to fill a growing number of spaces – and even to enable continuous real-time monitoring – heightened the need for automated forms of identity and status verification. The ability to deploy automated recognition systems at the level of individual movement and access control represents an emerging scale and temporality of the governance of circulation with implications that, while revealed by the pandemic, extend beyond it. 

Drawing upon field research on the use of facial recognition during the pandemic, we describe this form of governance as a ‘granular’ form of biopolitics – a formulation meant to highlight the customized forms of intervention it envisions. A more precise, though perhaps more obscure, formulation would be to describe the mass-individualized governance of shared spaces as a granular form of ‘environmentality’. This term invokes speculative observations by Michel Foucault (2008: 259) about forms of control that operate not at the level of subjectification (as in the case of disciplinary practices), but at that of the environment, or ‘milieu’. Typically, the milieu refers to a shared environment, however, the novelty of automated identification is that it enables the individualization and customization of the milieu itself. The result, we argue, is the mass-customized management of populations at the level of the individual, without necessarily relying upon the attendant forms of subjectification that mark the disciplinary ‘pole’ of biopolitics. As Han (2022) puts it in his reflections on ‘infocracy’, ‘. . . disciplinary power gives way to smart power, a power that does not give orders but whispers, that does not command but nudges. In other words, it pokes us with subtle tools that influence our behaviour’ (p. 5). As we shall see, a range of imperatives including heightened acceleration and norms of efficiency can be built into the material and informational environment without necessarily being ideologically internalized. We may not consciously desire to continually accelerate our production of electronic communication, but the systems we rely upon make this process all but inevitable. Processes of subjective internalization can, in this respect, be displaced or bypassed by feedback in the physical and informational environment. Rouvroy et al. (2013) make a similar point in their work on algorithmic governmentality, which, they argue, ‘produces no subjectification, it circumvents and avoids reflexive human subjects, feeding on infra-individual data which are meaningless on their own, to build supra-individual models of behaviours or profiles without ever involving the individual’ (p. 169). 

This shift marks a historical development in the deployment of biopower anticipated by the widespread deployment of automated forms of real-time identification at-a-distance, and, relatedly, in the development of customizable environments including virtual and augmented reality.

Regulation By Design

'Regulation by design: features, practices, limitations, and governance implications' by Kostina Prifti, Jessica Morley, Claudio Novelli and Luciano Floridi comments 

Regulation by design (RBD) is a growing research field that explores, develops, and criticises the regulative function of design. In this article, we provide a qualitative thematic synthesis of the existing literature. The aim is to explore and analyse RBD's core features, practices, limitations, and related governance implications. To fulfil this aim, we examine the extant literature on RBD in the context of digital technologies. We start by identifying and structuring the core features of RBD, namely the goals, regulators, regulatees, methods, and technologies. Building on that structure, we distinguish between three types of RBD practices: compliance by design, value creation by design, and optimisation by design. We then explore the challenges and limitations of RBD practices, which stem from risks associated with compliance by design, contextual limitations, or methodological uncertainty. Finally, we examine the governance implications of RBD and outline possible future directions of the research field and its practices.

Critical Theory

'Reconstructing Critical Legal Studies' by Samuel Moyn in (2024) 134 Yale Law Journal comments 

It is an increasingly propitious moment to build another radical theory of the law, after decades of relative quiescence in the law schools since the last such opportunity. This essay offers a reinterpretation of the legacy of critical theories of the law, arguing that they afford useful starting points for any radical approach, and not merely cautionary tales of how not to proceed. The essay revisits the critical legal studies movement in particular and imagines its reconstruction. Critical legal studies extended the social theory of the law pioneered by legal realism, and framed law as a forceful instrument of domination, though one that is compatible with both functional and interpretative underdetermination. Legal order oppresses, and the way it does so is never accidental or random, while regularly accommodating alternative pathways of control and contestation. Analogously, law is often determinate, which is how it can so routinely serve oppression, even though it does so in and through processes of interpretation of elusive or vague legal meaning by courts and other institutions. The essay concludes by showing that the parameters of a radical social theory of the law—parameters we should reclaim critical legal studies for helping establish—apply to current or future attempts to build any successor, taking account of critical race theory, feminist legal thought, and most especially the emergent “law and political economy” movement. That movement is the most prominent leftist or at least progressive movement in law schools today, but critical legal studies challenges it better to identify its core principles. Had critical legal studies never existed, it would have to be invented today. 

Digital Assets

The UK Law Commission's Digital assets as personal property: Short consultation on draft clauses states 

Digital assets are fundamental to modern society and the contemporary economy. They are used for an expanding variety of purposes — including as valuable things in themselves, as a means of payment, or to represent or be linked to other things or rights — and in growing volumes. 

1.2 In our recent work on digital assets, we considered how principles of private law, specifically personal property law, apply to digital assets. Personal property rights are important for many reasons. They are important in cases of bankruptcy or insolvency, in cases where objects of property rights are interfered with or unlawfully taken, and for the legal rules concerning succession on death. They are also important for the proper characterisation of numerous modern and complex legal relationships, including custody relationships, collateral arrangements and structures involving trusts. Property rights are powerful because, in principle, they are recognised against the whole world, whereas other — personal — rights (such as contractual rights) are recognised only against someone who has assumed a relevant legal duty. 

1.3 We published our final report on digital assets in June 2023. We concluded that certain types of digital assets are capable of being things to which personal property rights can relate, even though they do not easily fit within the traditional categories of personal property, and are better regarded as belonging to a separate category. We recommended legislation to confirm the existence of a “third category” of personal property rights, capable of accommodating certain digital assets including crypto- tokens. ... 

1.5 The draft clauses that accompany these notes implement the recommendation about personal property set out in our June 2023 report. This short, limited consultation exercise is designed to test whether the draft clauses successfully implement the recommendation we made in our report. We also ask about potential impact, and are keen to receive views on costs and benefits, and any potential unintended consequences, in order to inform the Government’s decision on whether to proceed to implementation. We do not ask further questions on the underlying policy, which has already been the subject of consultation. ... 

AIMS OF THE DRAFT BILL 

1.8 The intended effect of the draft Bill is to confirm that crypto-tokens, and potentially other assets such as voluntary carbon credits, are capable of being recognised by the law as property. This will enable courts to determine a number of issues, including, for example, in the following situations. (1) If digital assets are the subject of a legal dispute and there is a danger of their holder dissipating them before that dispute can be resolved, a court can, if these assets are classed as property, order a proprietary freezing injunction over them to prevent this. These remedies exist for things already recognised as property; as yet, it is an open question whether they are available in relation to digital assets. (2) If someone’s digital assets are taken from them or destroyed, the remedies available to them are significantly stronger if those assets are regarded as being their property than if the law does not recognise any property interest in them. Currently, there is a considerable and growing market in such assets and most investors (commercial and private) presume that, when they buy them, they acquire property rights in the same way as they do when they buy, say, a watch or a laptop. As the law currently stands, it is not necessarily the case that they do. 

1.9 The common law has answered some questions in relation to some kinds of digital assets, but the result is, inevitably, both piecemeal and vulnerable to different judicial approaches in the future. The draft Bill would definitively lay to rest any lingering doubt about the existence of a third category of property accommodating the unique nature of digital assets, setting the future direction of the law in favour of commercial certainty and confidence. 

1.10 Members of the judiciary themselves suggested to the Law Commission that the recommended legislation would be a useful tool in developing the law in this area. ...

Legal background 

2.1 “Property” can be divided into real property (interests in land) and personal property (interests in other things). The law of England and Wales traditionally recognised two distinct categories of personal property rights: rights relating to “things in possession” (tangible things), and rights relating to “things in action” (legal rights or claims enforceable by action). A 19th century case, Colonial Bank v Whinney, is often used as authority for the proposition that these two categories of personal property are exhaustive so that anything that is an object of personal property rights must fall within one of these two. 

2.2 Court decisions over the last ten years show that the common law of England and Wales has moved toward the recognition of a “third” category of things to which personal property rights can relate but which do not fall easily within either of the two traditionally recognised categories. Initially, this development was in response to emergent forms of intangible things such as milk quotas;5 more recently, it has been in response to crypto-tokens. 

2.3 A strong majority of our consultees agreed that either a third category of things to which personal property rights can relate has already developed in England and Wales at common law, or that, to the extent it has not, one should be recognised as existing. Some consultees, including senior and specialist judges, said to us that the explicit recognition of such a category would confirm the existing law, facilitate the law’s future development and lay to rest any lingering doubt about the existence of such a category. 

2.4 In this chapter, we briefly explain the legal background to, and reasons for, our recommendation. In the next chapter, we introduce the draft Bill and explain what it does – and what it does not do. 

Property 

2.5 Colloquially, the term “property” is used interchangeably to describe both a thing, and a claim or entitlement to that thing. However, in a stricter legal sense, the term describes a relationship between a person and a thing, and not the thing itself. For example, in the phrase “that phone is my property”, the object (the thing) is the mobile phone. The property rights are the rights that a person has in relation to that mobile phone. 

2.6 Even in legal writing such as academic papers, cases and statutes, the term property is sometimes used in its broader, more colloquial sense or as a shorthand term, and we also use it in this way from time to time. However, the draft Bill refers to an “object of property rights”. 

Third category / third thing 

2.7 In our report, and in this paper, we use the term “third category” to describe a category of thing distinct from both things in possession and things in action. In adopting this terminology, we acknowledge the argument that other distinct categories of things to which personal property rights can relate might already exist at law (including patents and statutorily created intellectual property rights). We adopt the term “third category” as shorthand: in part, as a direct reference to Lord Justice Fry’s influential judgment in Colonial Bank v Whinney and the longstanding practice among lawyers and judges of referring to the things in possession/things in action dichotomy; and in part as a convenient and readily understandable term, which almost all consultees were comfortable with. We deliberately do not, however, use the term in the draft legislation. 

THINGS IN ACTION AND THINGS IN POSSESSION 

2.8 By way of background, it may be helpful to expand briefly on the two categories of personal property traditionally recognised by the law of England and Wales: (1) Things in possession are, broadly, any object that the law considers capable of possession. This category includes assets which are tangible, moveable and visible, such as a bag of gold.  Possession of a thing gives its possessor a property right which is enforceable against the world.  Rights in things in possession can be asserted by use and enjoyment as well as by the exclusion of others from them.  Things in possession exist regardless of whether anyone lays claim to them, and regardless of whether any legal system recognises or is available to enforce such claims. (2) Things in action are, traditionally, any personal property that can only be claimed or enforced through legal action or proceedings. Common examples of things in action are debts, rights to sue for breach of contract, and shares in a company. Things in action have no independent form and exist only insofar as they are recognised by a legal system. This means that the presence of a thing in action in the world is dependent on there being both a party against whom the thing in action (the right) can be enforced and a legal system willing to recognise and enforce that right. The category of things in action is sometimes given a much broader meaning as a residual class of personal property — that is, it is sometimes regarded as encompassing any personal property that is not a thing in possession. 

2.9 Things in possession and things in action are susceptible to different types of legal treatment. 

2.10 In the 1885 case of Colonial Bank v Whinney, Lord Justice Fry said:  All personal things are either in possession or in action. The law knows no tertium quid [third thing] between the two. 

2.11 Although this statement has largely been taken as reflecting the correct position in law, it is almost certainly no longer correct (to the extent that it ever was). As Professor Fox and Professor Gullifer observed in their joint response to our call for evidence: The reasoning in [Colonial Bank v Whinney] turned on the interpretation of the bankruptcy statutes then in force. It has been taken out of context and used as authority for a proposition that it [was] not meant to support. 

Digital assets as things in possession or things in action 

2.12 Digital assets do not sit easily in either of the traditionally recognised categories of things in possession or things in action (at least in the narrow sense). They are not tangible things in the normal sense, meaning that courts are likely to feel unable to find that they are things in possession.  Nor are they claimable or enforceable only by legal action or proceedings. Crypto-tokens would continue to exist even if the law were to fail to recognise them as objects of personal property rights and even were a law to prohibit their existence.18 Their useful characteristics and the ability of people to use, enjoy and interact with them (and exclude others from them) would also continue to exist: the functionality of the crypto-token system would remain unaffected. They therefore function more like objects in themselves. 

2.13 Some digital assets, such as crypto-tokens, might represent, record, or be linked to other things (including legal rights – that is, things in action) which are external to that particular crypto-token and/or crypto-token system. In our work, however, we concluded that the better view is that a crypto-token is a thing in itself to which personal property rights can relate, regardless of whether it is also linked to another thing. Specifically in respect of crypto-tokens, almost all consultees agreed that crypto-tokens cannot be conceived of as merely rights or claims in themselves and that they can be used and enjoyed independently of whether any rights or claims in relation to them are enforceable by action. Further, the use or enjoyment of a thing in action is dependent entirely on the enforceability of the right or claim of which it is constituted. That is not true of crypto-tokens, for example. This is the crucial distinction that needs to be made for proprietary classification purposes.  

2.14 Crypto-tokens and certain other digital assets can be used and enjoyed independently of whether any rights or claims exist in relation to them. Moreover, any property rights in relation to them can be asserted by use and enjoyment of the thing and by the exclusion of others from it. This is one of the fundamental underlying innovations of crypto-tokens, because it is all achieved through software where this was not previously possible. 

2.15 It is this quality of digital assets, as things independent of the rights that relate to them, that makes them susceptible to involuntary alienation. This is relevant to a proprietary classification because it helps to distinguish between the legally relevant characteristics of different things. A debt, for example, as a thing in action, cannot be alienated from a person without a legal process (usually one which requires that person’s consent). A crypto-token, on the other hand, as a thing in possession like a car or a watch, can as a matter of fact be alienated from a person without a legal process and without their consent. 

2.16 So, despite the longstanding existence of two categories, the courts have consistently concluded that certain things (often digital assets) are capable of being objects of personal property rights, even where the thing in question does not neatly fit within either of the traditionally recognised categories of thing to which personal property rights can relate. The courts have done so, either expressly or impliedly, in respect of milk quotas,  European Union carbon emission allowances (“EUAs”),  export quotas,  waste management licences,  and a wide variety of crypto-tokens, including non-fungible tokens (NFTs). 

2.17 In the recent case of AA v Persons Unknown, the High Court of England and Wales said that “[cryptocurrencies] are neither [things] in possession nor are they [things] in action”.  Nonetheless, in that case, the court held that cryptocurrencies were a form of property.  Mr Justice Bryan said that it would be “fallacious” to proceed on the basis that the law of England and Wales recognises no form of property other than things in possession and things in action. He explicitly recognised the difficulty in the classification of crypto-tokens (which, on their face are things which are neither things in action nor things in possession). He held that a crypto-token could be an object of personal property rights even if it was not a thing in action in the narrow sense. 

2.18 The Court of Appeal has said that “a cryptoasset such as bitcoin is property” under the law of England and Wales. This is also affirmed, or necessarily implicit, in at least 23 other cases decided at first instance, although most were decided in connection with interim relief. 

2.19 Since the judgment in AA v Persons Unknown was handed down in 2019, courts in at least 14 of those 23 cases, including the Court of Appeal,31 have cited that judgment in support of the proposition that the digital asset in question is a thing which is capable of being an object of personal property rights. 

2.20 Taken together, the case law demonstrates that the courts of England and Wales now recognise crypto-tokens as distinct things which are capable of being objects of personal property rights. Further, through the consistent application of AA v Persons Unknown (as opposed to any contrary approach), courts have deliberately proceeded in a manner that carves out a third common law-based category of thing to which personal property rights can relate. 

2.21 Courts in other jurisdictions have reached the same (or a similar) conclusion. Courts across the common law world, including in Australia, Canada, Hong Kong, New Zealand, Singapore, and the United States, now consistently proceed on the basis that crypto-tokens are capable of being objects of personal property rights and are therefore susceptible to the various consequences that follow.  This includes recognition that crypto-tokens can be subject to an interlocutory proprietary injunction, are capable of being held on trust and fall within certain broad statutory definitions of “property”. 

2.22 Examples of this can also be seen in some civil law-based systems, including Japan, Liechtenstein, and Switzerland. 

2.23 Our conclusions are also consistent with international law reform developments, including those that are intended to be applicable in civil law jurisdictions. The UNIDROIT Working Group recently published a set of international principles,  which set out a proprietary framework applicable to digital assets.  The UNIDROIT Working Group Principles apply to “electronic records”, of which digital assets are a sub-set.  In effect, the Principles apply proprietary concepts to a category of things distinct from things in possession and things in action. 

OUR RECOMMENDATION: STATUTORY CONFIRMATION OF A “THIRD THING” 

2.24 We have therefore concluded that a thing is not, and should not be, deprived of legal status as an object of personal property rights merely by reason of the fact that it is neither a thing in action nor a thing in possession. We recommended the explicit recognition, in statute, of a third category of personal property, to encourage a more nuanced consideration of new, emergent things. A distinct, third category will better allow the law to focus on attributes or characteristics of the things in question, without being fettered by analysis or principles applicable to other traditional objects of personal property rights. As discussed below, we consider that such things include, but are not necessarily limited to, crypto-tokens such as bitcoin. 

2.25 Although it may not change the common law position,  we conclude that such a statutory confirmation will provide greater legal certainty and will allow the law to develop from a strong and clear conceptual foundation. A statutory confirmation will alleviate any lingering judicial concern surrounding Colonial Bank v Whinney or any concern that recognising a third category is not an appropriate development for the common law to make.  The exact parameters which describe a third category thing, and the legal treatment afforded to such things, will be matters for common law. There are centuries of case law considering the factors that make a thing an appropriate object of personal property rights, which the courts can continue to apply in this context so that the third category does not become inappropriately broad. We consider this to be the most effective and least interventionist recommendation that we can make to facilitate the law’s development on this point. 

2.26 A statutory confirmation will explicitly recognise the reality that in the modern world there exist things that are neither purely intangible rights nor conventionally tangible objects, and that the law is capable of treating those things as objects of personal property rights. This in turn will allow the law of England and Wales to discuss crypto- token systems (and other systems that might manifest third category things) more directly in terms of powers and incentives/incentive mechanisms of participants, rather than in terms of claims/rights, corresponding duties and obligations.  It also means that the category of things in action can remain usefully distinct and descriptively accurate. 

2.27 A statutory confirmation will reduce the time spent by the courts on questions of categorisation of objects of personal property rights, and instead allow them to focus on the substantive issues before them. It gives explicit effect to: [the] powerful case for reconsidering the dichotomy between [things] in possession and [things] in action and recognising a third category of intangible property ... in a way that would take account of recent technological developments. 

2.28 A statutory confirmation is likely to help protect new and emergent forms of property from intermediation imposed by the application of ill-fitting private law principles, such as the concept that such things are things in action. A statutory confirmation is also likely to help protect emergent forms of property from regulation which might mandate intermediation or reduce a person’s ability to self-custody their own asset; that is, to hold it directly rather than through an intermediary such as a wallet provider. 

2.29 A statutory confirmation will provide a strong signal to market participants that the law of England and Wales will continue to protect personal property rights, even in new and emergent forms of property. It will also re-emphasise the fundamental difference between third category things that can be “owned”, and other existing types of software, the rights to which are generally governed by a mixture of statute (for example, intellectual property rights) and contract (for example, licences granted by Microsoft), without clear principles of “ownership”. Crypto-tokens, for example, are so fundamentally different to other types of software or digital assets that this distinction alone is worth codifying in statute. Doing so will facilitate and encourage innovation based on the underlying principle that certain digital things can now be “owned”.

Atlantis

'Three Reconstructions of ‘Effectiveness’: Some Implications for State Continuity and Sea-level Rise' by Alex Green in Oxford Journal of Legal Studies comments 

Small Island Developing States (SIDS) are uniquely threatened by rising sea levels. Not only does the retreat of their coastlines place them in danger of losing maritime territory; the concurrent possibility of their landmasses becoming either uninhabitable or completely submerged also threatens their very existence. According to one understanding of the law that governs the continuity and extinction of states, political communities that permanently lose ‘effectiveness’—typically understood as sufficient governmental control of a relatively determinate territory with a permanent population—must lose their statehood as well. In this article, I provide three reconstructions of effectiveness, each of which rests upon a different normative rationale. My contention is that, regardless of which reconstruction one adopts, the continuity of submerged SIDS is eminently supportable, notwithstanding the arguments frequently made in favour of their formal extinction. 

 

The existence of states under international law turns on a range of connected factors, including a strong presumption in favour of continuity once legal statehood is established. When it comes to state creation, relevant factors include the presence of foreign recognition, the delimiting influence of treaties making territorial concessions, the express or implied consent of any ‘parent’ states, demonstrable commitments to democratic principles and human rights norms, and the provision of suitably constituted independence referendums at the point of emergence. It is arguable that some of these factors, particularly that of foreign recognition, also govern the existence of states beyond the point of their creation. 

 

Whatever the case, one concept almost always discussed whenever statehood is in question is that of ‘effectiveness’. Traditionally conceived, effectiveness concerns whether a given physical space and human population are subject to factual control by the governance institutions that partly constitute the state in question. It is often considered necessary for the creation of states, in addition to being an independent basis upon which territorial title can be grounded. This article partly concerns the nature of effectiveness in general. However, my primary focus is upon the role that it plays within the law of state continuity, which governs the conditions under which states persist through time. The antithesis of continuity is extinction, which usually occurs due to some disruptive event, such as destruction by a foreign power or voluntary dissolution. States are continuous to the extent that their existence under international law is not disrupted by events of this kind. State continuity is sometimes linked with the neighbouring question of state identity, which concerns whether (and why) a state at time T1 is the same entity as the one identified with it at time T2. These topics can nonetheless be treated separately, which is what I propose to do here. 

 

My analysis of effectiveness is partly theoretical, turning upon three distinct accounts of that concept and what each has to say about state continuity. However, my motivation is practical, stemming from the existential threats currently faced by Small Island Developing States (SIDS) in light of human-caused sea-level rise. I aim to show that even though the three ‘reconstructions’ of effectiveness I advance have different normative foundations, each one supports the existential resilience of SIDS notwithstanding the danger of sea-level rise. That danger might be crudely described as ‘loss of effectiveness’. Under austere accounts of the effectiveness principle, no entity without inhabitable land and a permanent population living upon that land can maintain statehood, particularly not if the loss of these factual prerequisites is permanent. I elaborate upon this ‘austere view’ below, arguing that each reconstruction of effectiveness I examine requires it to be rejected. 

 

All three accounts of effectiveness I advance are derived via the ‘rational reconstruction’ of international law. This hermeneutic method, sometimes called ‘creative’ or ‘constructive’ interpretation, seeks to induce from the social facts of international legal practice the set(s) of general evaluative commitments underpinning that practice. ‘Practice’, in the relevant sense, encompasses not only the state practice and opinio juris necessary for the formation of customary international law, but also the text and context of relevant treaties, the judgments of international courts and tribunals, and other international legal instruments with probative value on de lege lata. What distinguishes rational reconstruction from purely doctrinal legal interpretation is that it also relies upon ‘critically normative’ or ‘moral’ considerations to explicate the justificatory basis of the legal positions being examined. It takes social practices like international law seriously as sources of genuine practical reasons, and elucidates those reasons to yield prescriptive implications specific to these practices. Rational reconstruction, to that extent, exemplifies the ‘Grotian tradition’ of international law, as articulated by those such as Lauterpacht, and can be understood largely in those terms. The value of examining effectiveness in this way lies not only in the radical potential of rational reconstruction to generate progressive legal arguments, but also in its capacity to draw out the most foundational commitments of the international legal order. By asking why effectiveness matters in normative terms, we get a clearer picture of how it should be understood and applied in response to unprecedented legal challenges such as those of sea-level rise and the global climate crisis. 

 

To provide context, section 2 introduces the most commonly accepted elements of effectiveness and connects them to other aspects of the law governing state continuity. After this, three discrete reconstructions of effectiveness are advanced, each corresponding to a different conception of why effectiveness matters normatively. The first emphasises the value of stability within international relations (‘effectiveness as stability’, section 3). The second focuses upon the function of governments as fiduciaries for their people, emphasising the connection between effectiveness and the protection of human rights (‘the fiduciary model’, section 4). The third stresses the importance of states as the primary communities within which intrinsically valuable political action occurs (‘statehood as political community’, section 5). Sections 3–5 are each divided into two halves: a normative reconstruction of effectiveness, followed by an application of that analysis to state continuity and sea-level rise. I conclude by reviewing the contribution of all three reconstructions. To the extent that each has featured within legal scholarship before, all three are typically presented as incompatible competing reconstructions. I engage with them here on a different basis: as distinct but compatible conceptions of effectiveness, each of which reinforces the existential resilience of SIDS under contemporary international law.