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In the History of the Church of Rheims, Flodoard devotes significant attention to describing the acquisition and defence of property by the bishops of Rheims. Flodoard’s emphasis on church property has often been thought to be a generic, unremarkable aspect of ‘institutional’ historiography. This chapter argues that Flodoard’s focus on Rheims’s property was far more targeted, and that he sought to justify his church’s claims to specific lands in response to the schism that wracked the archbishopric in the first half of the tenth century. After surveying the evidence for property management in early medieval Rheims, I examine Flodoard’s techniques as an archivist and his activities as an administrator involved in land disputes. Claims were constructed on the basis of written texts (sometimes forged), local tradition and recent history. This chapter also considers the question of genre as it pertains to such works of institutional or local history as well as the implications of its findings for the audience and function of the History.
The common good (bonum commune) has, since antiquity, referred to the aim of social and political association, and was particularly prominent in medieval Christian political theology. Since St. John XXIII’s 1961 encyclical letter, Mater et magistra, ecclesiastical statements about social teaching have employed a formulation of the common good, usually in the version that appeared in the Second Vatican Council’s 1965 Pastoral Constitution for the Church in the Modern World, Gaudium et spes, as “the sum of those conditions of social life that allow social groups and their individual members relatively thorough and ready access to their own fulfillment.” This chapter discusses the origins and development of this formulation as well as the ways that it has been used in subsequent Catholic Social Teaching. While it has sometimes been interpreted as an “instrumental” account of the common good, the sources and uses of the notion suggest that it is the particularly modern political component of a fuller notion of the common good continuous with the tradition. In particular, the recent formulation is concerned to limit the power of the modern state and protect the dignity of the human person in the challenging conditions of political modernity.
This chapter explains the principle of the universal destination of earthly goods as it has been affirmed by the magisterium of the Catholic Church, based upon scriptural and patristic sources and on the thought of Saint Thomas Aquinas, and developed especially since Rerum novarum. The principle is one of the most consistent doctrines of that evolving magisterium, with only minor adjustments of expression, extension to new matters, and differing emphases according to contingent circumstances and the relative force of opposing errors at different times. After a brief introduction (sec. I), the chapter presents in chronological order the evolution of the formulations of the principle before the Second Vatican Council (sec. II) and from there to Pope Francis (sec. III). The purpose of this sort of exposition – chronological and textual – is to furnish the reader with the main texts of the social doctrine of the Church about the principle, so that the stability of the teaching may appear as self-evident. For the main thesis is always the same: the priority of the universal destination of earthly goods as an end, and its compatibility with a strong right to private property as a means.
Lockean approaches to property take it that persons can unilaterally acquire private ownership over hitherto unowned resources. Such natural law accounts of property rights are often thought to be of limited use when dealing with the complexities of natural resource use outside of the paradigm of private ownership of land for agricultural or residential development. The tragedy of the commons has been shown to be anything but an inevitability, and yet Lockeanism seems to demand that even the most robust common property arrangements be converted to privatized units. This often motivates a move away from natural law in the moral analysis of property rights. I argue however that it is not the deontological nature of Lockean principles that are at fault, but rather the manner of their application. Lockean theory often exhibits a bias in favour of private property: assuming that only private property can protect one’s interest in autonomy, and therefore asserting that each individual has a power of private acquisition. Starting with a claim against interference however enables us to mould the appropriate property rights to each individual’s particular interest in autonomy. This sometimes leads to private ownership, but often leads to various forms of commons.
This paper is concerned with how law organises and controls space. It offers a new history of enclosure in the context of early English colonialism. By drawing this connection, the paper opens up new lines of enquiry into how law organises and produces space at both the domestic and international scale.
Studies of takings of property highlight the increasing penetration of state power into private life. Controversies regularly surround compensation provisions. Many academic analyses and decisions of the European Court of Human Rights have supported the proposition that market value offers the best approximation of just compensation. However, full market value compensation may not be guaranteed if the taking of property fulfils certain legitimate objectives of the ‘public interest’. To unpack the complexity surrounding compensation provisions under the European Convention on Human Rights, this paper adopts and develops a ‘law-and-community’ approach – an important dimension, not previously investigated in the study of takings of property – which sees ‘community’ as networks of social relations, and views law as not only grounded in community but also existing to regulate communal networks. This paper then identifies the limits of both Art 1, Protocol 1 of the ECHR and the current approaches to compensation in the light of this law-and-community approach. In so doing, the paper makes a distinctive contribution by offering a new socio-legal interpretation of controversies surrounding compensation for takings of property beyond the private/public divide and by proposing an alternative framework of engaging law and regulation in wider social life.
When contemporary dispossessed urban classes are figured as a “proletariat,” a potent historical analogy is activated in which the well-documented experience of the burgeoning industrial working classes of nineteenth-century Europe provides an implicit template for interpreting events and processes far removed in time and space. Yet Karl Marx's own deployment of the figure of the proletariat, which often provides the inspiration and model for such analogic moves, was itself in its own time already a complex historical analogy, invoking the social hierarchies of ancient Rome. Rethinking this doubly analogical intellectual history provides an occasion both for considering the uses and abuses of historical analogy, and for using a reflection on the original (Roman) proletarians as a conceptual lever for prying apart some outdated assumptions about the contemporary politics of certain propertyless urban populations, in southern Africa and beyond.
The article argues that property redistribution was a major tool of democratization and nationalization in Poland and the Baltics. It provided governments with a means to give peasants a stake in the new democratic states, thus empower the new titular nations and at the same time marginalize former elites, who became national minorities. The most significant acts of property redistribution were the land reforms passed between 1919 and 1925, which achieved the status of founding charters of the new states. Activists of the disenfranchised minorities conceptualized minority protection as the “Magna Carta” of the international order, which should contain the principle of national self-determination and thus safeguard private property, the protection of which was not clearly regulated by international law. By examining the contingencies of the aftermath of the war in East Central Europe as well as discussions about changing conceptions of property ownership in both East Central and Western Europe, the article shows that land reform was meant to counter Bolshevism, but, at the same time, created the impression abroad that the new states themselves displayed revolutionary tendencies and did not respect private property — an image that became a significant argument of interwar territorial revisionists.
For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory copyrights and consolidated them in the hands of publishers and printers, with the 1887 Dawes Act, which served a crucial function in the American divestment of Indian land. I draw from the stories of the two laws the same moral: Constituting something as a freely alienable property right will almost always lead to results mirroring or exacerbating disparities in wealth and bargaining power. The legal dogma surrounding property rights makes it easy for us not to notice.
Locke’s property rights are now usually understood to be both fundamental and strictly negative. Fundamental because they are thought to be basic constraints on what we may do, unconstrained by anything deeper. Negative because they are thought to only protect a property holder against the claims of others. Here, I argue that this widespread interpretation is mistaken. For Locke, property rights are constrained by the deeper ‘fundamental law of nature,’ which involves positive obligations to those in need and confines the right to excess property within circumstances where it is not needed to preserve human life.
The familiar irony of ‘real existing socialism’ is that it never was. Socialist ideals were used to legitimize regimes that fell far short of realizing those ideals—indeed, that violently repressed anyone who tried to realize them. This paper suggests that the derogatory concept of ‘the criminal’ may be allowing liberal ideals to operate in contemporary political philosophy and real politics in a worryingly similar manner. By depoliticizing deep dissent from the prevailing order of property, this concept can obscure what I call the ‘legitimation gap’. This is the gulf between (a) liberal accounts of state legitimacy, and (b) the actual functioning of liberal states. Feminists have long pointed out that the exclusion of what is deemed ‘personal’ from political consideration is itself a political move. I propose that the construction of the criminal as a category opposed to the political works similarly to perpetuate unjust forms of social power.
With ongoing consequences for American Indians, the New World Indian has been a pervasive figure of constitutive exclusion in modern theories of money, property, and government. This paradoxical exclusion of indigenous peoples from the money/property/government complex is intrinsic to, and constitutive of, modern theories of money. What is more, it haunts the cultural politics of indigenous peoples’ economic actions. In Part I, I establish that, and how, indigeneity has been constitutively present at the foundation of modern theories of money, as Europeans and settlers defined indigenous peoples in part by the absence of money and property (of which money is a special form). In turn, and more to the point here, they defined money and property in part as that which modern non-indigenous people have and use. These are not solely economic matters: the conceptual exclusions from money/property were coproduced with juridical ones insofar as liberal political theory grounded the authority of modern government in private property (and, in turn, in money). To show how this formation of money and indigeneity has mattered both for disciplinary anthropology and for American public culture at several historical moments, Part II traces how the dilemmas expressed by these texts haunt subsequent debates about the function of wampum, the logic of potlatch, and the impact of tribal gaming. Such debates inform scholarship beyond the boundaries of anthropology and, as each case shows in brief, they create harms and benefits for peoples in ways that perpetuate the (il)logics and everyday practices of settler colonialism.
The doctrine of benefit and burden – an indirect method for enforcing the burden of positive freehold covenants – developed as an exception the strict Austerberry rule that the burden of positive covenants cannot bind successors directly at law. Three recent Court of Appeal cases (Davies v Jones; Wilkinson v Kerdene and Elwood v Goodman) confirm the continued existence and application of the doctrine but also reveal its deficiencies and limitations. This article explores the contemporary application of the doctrine, identifies its theoretical, historical and elemental frailty and, drawing on recent reform proposals of the Law Commission, highlights the case for reform. In so doing, this article argues that a vital theoretical issue has been overlooked in the reform debate: the numerus clausus principle.
The Levantine business community—the Sursuqs, Bustruses, Tuenis, Khuris, Debbases, Trads, Tabets, Naggiars, and Farahs—created large agricultural estates in the Levant and established company branches in Beirut, Alexandria, Haifa, London, Liverpool, Paris, and Marseille in the mid-nineteenth century. Against both culturalist and new institutional paradigms, I argue that the trajectories of the Levantine firms were much like those of their European counterparts; Dutch and English capitalism—what came to be recognized as modern forms of capitalism—developed out of long-distance trade and relied on forms of coerced and semi-coerced labor as well as other so-called “non-capitalist” or “precapitalist” elements. Beirut-based companies relied on tenant contracts, sharecropping, and other forms of labor control rooted in the Ottoman social formation. Drawing upon the unexplored private papers of these business families in Beirut and a diverse collection of documents from Istanbul, Beirut, Jerusalem, London, Liverpool, and Marseille in Arabic, German, Ottoman Turkish, and French, this paper examines the parallels and the links between the business practices of the Levantine joint-stock companies and their European partners. It contends that the development of nineteenth-century capitalism relied on several different institutions and relations of production formulated and articulated on both sides of the Mediterranean and in the competition between them. Only after World War I, because of settler-colonialism, the settlement of nomads, and large-scale European capital investment backed by imperial power, did Levantine capital accumulation begin to take a form that was subordinate to Europe.
This article examines what urban displacement and resettlement can reveal about the nature of, and co-constitutive relationships among, property, authority, and citizenship. It focuses on an unusual case in Bulawayo, Zimbabwe, where long-term illegal squatters living under constant threat of violent displacement by various local and national authorities were formally resettled by the Bulawayo City Council on peri-urban plots with houses. What surfaces are some of the paradoxes of propertied citizenship and of attaining seemingly “proper” lives in conditions of sustained marginality, a result that is not entirely unexpected when impoverished squatters are resettled far outside the frame of the city and its possibilities.
Fresh water came from a variety of sources, streams and springs as well as aqueducts. Much of the Roman law on fresh water concerns its supply, regulating rights to use it with a variety of legal institutions from public and private law (e.g. ownership, servitudes, interdicts). The study of fresh water has usually followed the legal categories, segregating the public water supply from water that was private property, and consequently segregating different types of evidence. In this paper varied evidence is analysed using the ‘bundle’ approach, an analytical framework from legal scholarship on rights in the environment, in which water rights are not monolithic but are represented by component rights, including rights of access, withdrawal, management, exclusion and alienation. Analysing component rights in fresh water reveals significant continuities in the Romans' regulation of it and the impact of this regulation. Although there was no centralized water administration in the early Empire, Romans took a systematic approach to regulating fresh water based on consistent working principles and policy priorities.
Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states “privatized” religion or subjected churches to “free-market competition” by making them more like commercial businesses, yet this article demonstrates in part how churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses, but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment and incorporation. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. In Dartmouth College, the Marshall Court reimagined religious societies as private owners who, instead of governing as rival sovereignties, administered property in trust under their charters. But with the vague charters of general incorporation, state judges were left without a definite source of law to adjudicate church disputes. This article argues that courts thus allowed trust law to function as a conflict of laws analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state.
This article considers the principle in the tort of private nuisance that the level of protection to which one is entitled from certain kinds of interference is sensitive to one's locality. It argues that the principle can be partly justified by the different costs of avoiding an interference which different localities create. However, it shows that, if the principle is to be justified in its entirety, a further justification is necessary. The article considers further justifications based on social rules, autonomy, cost minimisation, the idea of a system of equal right and an analogy to the rules on hypersensitive claimants. It largely rejects these explanations and concludes that, to the extent the locality principle requires individuals to bear substantial burdens that they would not have to bear were collective interests set aside, without compensation, it is difficult to justify.
In disputes over the use and possession of the human body and its parts, there has been a marked reliance on property law concepts. Judges frequently resort to the language of “ownership”, “gifts”, “donations”, “trusts” and so on, in order to resolve disputes over the use of human biomaterials. When this happens, however, we observe certain recurring mistakes. Judges and academics writing in this area have sometimes misunderstood the basic rules governing the creation and operation of property rights. We do not seek to take a stance on the normative matters at stake. Our aim is to provide an accurate account of how property law could operate when applied in the context of human tissue use. We hope to redress some misconceptions, but our bigger goal is to provide a new methodology of how to work through the various questions that must be considered when determining how to regulate human tissue, by explaining how property principles would work at each stage. In this way, we seek to enable those who wish to debate whether property principles should be applied to human tissue the means to have accurate debates.