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Australian Property Law: Principles to Practice is an engaging introduction to property law in Australia. Covering substantive law and procedural matters, this textbook presents the law of personal and real property in a contemporary light. Australian Property Law details how property law practice is transformed by technology and provides insights into contemporary challenges and risks. Taking a thematic approach, the text covers possession of goods and land, land tenure, estates and future interests, property registration systems, Indigenous land rights and native title, social housing, Crown land and ethics. Complex concepts are contextualised by linking case law and legislation to practical applications. Each chapter is supported by digital tools including case and legislation boxes with links to the full source online, links to useful online resources, multiple-choice questions, review questions and longer narrative problems.Australian Property Law provides an essential introduction to the principles and practice of property law in an ever-changing technological environment.
Chapter 7 takes the analysis beyond the conduct of hostilities and issues related to physical damage to foreign investments. It addresses the rules on expropriation universally included in investment treaties and analyses them against the backdrop of armed conflict. The chapter shows that the protection from expropriation in times of armed conflict principally follows the same general parameters as in times of peace: investment treaties offer protection from abusive property seizures often observed during armed conflict as well as unreasonable or discriminatory restrictions on the use of property and businesses. When it comes to indirect expropriation, the chapter suggests to follow a mitigated version of the so-called police powers doctrine. While the debate on the delineation between expropriatory measures and non-compensable regulations is not new, the context of armed conflict provides new insights based on domestic and international case law on war-time property restrictions. Armed conflict and the interests involved, the chapter argues, broaden the scope of police powers and increase the state’s leeway in restricting the free enjoyment of property.
This chapter first explores the marginalized condition of women around the world and traces the history of the transnational feminist movement. It discusses the relevant concepts such as public/private sphere, gender equality v. gender equity, and intersectionality. After a survey of the status of women’s rights under international and regional human rights law, it then examines various issues including the right to equality between men and women in marriage and family life, women’s rights in public and political life, sexual and reproductive rights, women’s land, property, housing rights, women’s rights to food, water, and sanitation, women workers’ rights in the workplace, and violence against women.
This chapter reviews the evidence from the Greek world for tribute and taxation. It begins with some comparative considerations about tributary regimes and the impact of Achaemenid imperialism on the fiscal development of the Greek city-states, including the Delian League and the Hellenistic kingdoms. The transition from tribute to taxation is cast as a significant indicator of state formation. A fundamental theme in ancient Greek taxation is the relationship between coercion and consent, especially how political institutions facilitate the sharing of communal burdens by the rich. Extraordinary levies on property and persons were a common feature of city-states, which Macedon and the Hellenistic kingdoms also adopted. Finally, the chapter treats indirect taxes, which are thought to provide a much larger and more regular portion of state revenue in the Greek world.
Beyond generally reflecting on the core concept that titles this Chapter, the succeeding sections will study in turn the rights to a hearing in Mexico and to an ample defense, coupled with a cross-examination, in Brazil. They will do so not in the abstract but rather by evaluating how these entitlements play out concretely and by pinpointing a prominent and possibly pivotal lawsuit. The discussion will employ common-law-style names to denote the focal opinion in each instance: (1) Melgar Castillejos v. President of the Republic and (2) Villarinho v. Brazilian Union of Composers.
In the Mexican controversy, the federal judges at all levels aggressively developed due process in a manner that parallels major developments north of the border. Remarkably, they applied it, beyond its original criminal realm of application, to the subsequently salient sphere of civil and pretrial adjudication. In the second dispute, their colleagues from Brazil transported the guaranty to a terrain thus far unknown or in fact off-limits in the United States: that of the purely private sector. In all, these precedents seem to signal that the time might have arrived for the direction of transcontinental influences to shift northward, at least occasionally.
This chapter argues that rather than a unilinear extension of the market project from England to France, the Anglo-French contestation, and the concomitant processes of uneven and combined development during the early modern period sharpened and restructured existing sociohistorical differences, ultimately leading to the formulation of a qualitatively different regime of property and modernization in France. Jacobinism was neither absolutism nor capitalism, but combined and bypassed both based on a new form of sociality and political economy. It produced novel social, economic and geopolitical dynamics that gave modernity a radically multilinear texture.
In On the Rights of War and Peace, Hugo Grotius (1583–1645) pushes natural law thinking into an international law form, shaping not only the origins of international law but a particular vision of the nation-state as the primary political form of modernity. Along the way, he frames the conditions through which just war thinking will move from being a tradition into becoming a theory (with its preoccupying focus on jus ad bellum and jus in bello criteria) and the modern self will become the primary political agent. One implication of his revolutionary thought is that it gives license to colonizing powers to use military force to acquire and defend property, especially the resources of the new world, thereby shaping modern understandings of the natural world as composed of things that can become owned. Another is that it makes refugees all-but-invisible, which will create increasingly acute problems as climate change and violence, together, will dramatically increase the number of displaced persons in the world.
Francisco de Vitoria (1483–1546) was among the preeminent theologians of his day and his two texts, De Indis and De Iure Belli, mark the start of a vitally important transition in the Christian just war tradition as it exited a medieval social imaginary and entered a modern one. Not only are there glimpses of early modernist just war thought and a revolutionary reframing of natural law thinking in these texts, but they find their starting point in one of the most acute questions in all of just war thinking: how to understand and engage an “other,” most notably indigenous persons in the Americas and West Indies. Vitoria’s surprisingly progressive answers to this question moved the tradition forward, powering its increasing political scope and moral significance. They also shaped failures – most notably in funding modern notions of race and the rise of chattel slavery while also shaping early modern conceptions of property and ownership – and caused suffering for which the tradition is at least partly accountable and lacunae that it must now overcome as it moves into the environmental age.
When read in light of Adorno’s “preponderance of the object,” The Tempest can be seen as bearing the marks of “primitive accumulation” in ways that can be made to challenge the ecologically catastrophic present. The unusual physical presence of wood in Shakespeare’s play in performance – especially given the play’s lavish display of suffering – opens it to serving as a critique of the reduction of the nonhuman world to mere “raw material” for human use, through which the subordination of some humans to others is also effected. In its physical form wood can be interruptive. Attentiveness to its refusal to reduce to human purposes in the excess of its seeming quiddity can open viewers to a “change of perspective” that, in turn, might lead to enhanced struggle for transformed conditions of existence – without the domination property relations establish – for humans and nonhumans alike: the goal of a properly Marxist ecology.
Negligence liability is a fairer way to allocate responsibility for accidental infringement of IP rights. The chapter considers and rebuts four arguments that seek to defend the morality of strict liability in IP: the causation argument, the property argument, the fault argument, and the reciprocity argument. Because owners and users bilaterally cause accidents, legal responsibility ought not to fall unilaterally on one party as a categorical matter.
Family was a central feature of social life in Italian cities. In the Renaissance, jurists, humanists, and moralists began to theorize on the relations between people and property that formed the 'substance' of the family and what held it together over the years. Family property was a bundle of shared rights. This was most evident when brothers shared a household and enterprise, but it also faced overlapping claims from children and wives which the paterfamilias had to recognize. Thomas Kuehn explores patrimony in legal thought, and how property was inherited, managed and shared in Renaissance Italy. Managing a patrimony was not a simple task. This led to a complex and active conceptualization of shared rights, and a conscious application of devices in the law that could override liabilities and preserve the group, or carve out distinct shares for each member. This wide-ranging volume charts the ever-present conflicts that arose and were a constant feature of family life.
Chapter 3 explores the consequences of the French Revolution's transformation of European politics through an Irish lens, linking the political thought of key Irish radicals to the emerging propaganda war between the rival empires of Britain and France. For Wolfe Tone and Arthur O’Connor, two key United Irish emissaries to France, French intervention in Irish politics presented an opportunity dismantle the Irish Kingdom’s sectarian property order and replace it with the peasant proprietorship being spread by French arms in the Low Countries, the Rhineland and northern Italy. Ireland’s poverty and instability was meanwhile held by a range of French and German observers to be a clear demonstration of the injustice and weakness of the British Empire, and the superiority of the French alternative. Following their defeat in 1798, key United Irish figures including O’Connor and William James MacNeven mounted powerful defences of Napoleonic empire. At least as far as its leaders were concerned, the 1798 rebellion was borne not of a radical repudiation of empire, but of an embrace of a French over a British variant.
This paper focuses on the articulation between property, sovereignty, and the construction of new political subjectivities in post-Ottoman provinces. Drawing on the cases of British Cyprus, the Italian Dodecanese, and French Mandatory Syria, it shows that European sovereign claims on these territories were pursued through the perpetuation of Ottoman land laws and the reorganisation of the judicial system responsible for implementing them. Dictated by the enduring legal uncertainty regarding the international status of these three provinces, this peculiar path to imperium did not deter European officials from working towards the ambitious goal of creating a class of individual peasant-proprietors, protected in their rights by colonial courts. Acknowledging the differences between these projects, their mutual influences, as well as their relative failure, the article contends that they nonetheless impel us to envision the transition from “Ottoman” to “European” rule as a gradual, multilayered process, instead of a sudden break.
In the twenty-first century, it has become easy to break IP law accidentally. The challenges presented by orphan works, independent invention or IP trolls are merely examples of a much more fundamental problem: IP accidents. This book argues that IP law ought to govern accidental infringement much like tort law governs other types of accidents. In particular, the accidental infringer ought to be liable in IP law only when their conduct was negligent. The current strict liability approach to IP infringement was appropriate in the nineteenth century, when IP accidents were far less frequent. But in the Information Age, where accidents are increasingly common, efficiency, equity, and fairness support the reform of IP to a negligence regime. Patrick R. Goold provides the most coherent explanation of how property and tort interact within the field of IP, contributing to a clearer understanding of property and tort law and private law generally.
Are legal traditions incommensurable? Professor H. Patrick Glenn argued that the idea that legal traditions were not suitable for comparison was a result of the reification of cultures. This chapter discusses Glenn’s insights of tradition and commensurability by examining the variants of the concepts and practices of lineage property in historical Confucianism. In the Confucian sphere of influence, marked by the shared precept of ancestral worship and primacy of ritual obligation, legal developments concerning lineage organization and property converged and diverged, revealing the complexity in humanity’s efforts to respond to the various challenges it faced. This examination illustrates Glenn’s central idea that legal traditions of the world are not only comparable and translatable but also transplantable. Transformation and transmission of law in East Asia underscore the need to compare legal traditions, both within and without in all its independence and interdependence, and further to understand the past in its own terms in all the interconnectedness of autonomous dimensions of life at a given time.
This paper examines the law of fixtures and chattels which governs the circumstances in which items of personal property that are attached to land become part of that land. Whether a chattel has become a fixture is crucial in a range of contexts including when land is sold or mortgaged. However, the law of fixtures has long garnered a reputation for complexity and obscurity; a position that endures today. Through examination of historical accounts and decided case law, this paper explores the reasons for this reputation; identifies the central deficiencies and defects inherent in the law and argues that the existing approach is anachronistic, inconsistent and incoherent. Building on this, the paper concludes by proposing a new framework for rationalisation and reform which would bring long-overdue certainty and clarity to the law in this area.
The space race is underway. Satellites are filling up space, causing electromagnetic interference and dangerous debris from collisions and earlier launches. The lack of a meaningful global management system for private commercial development of outer space will allow these near space problems to be exported further into the galaxy.
The 1960s space treaties intoned that space should be developed for the benefit of all mankind and banned private ownership and militarization of space resources. Private companies, who would be absorbing the risks and high costs of outer space development, oppose any management scenario enabling less developed countries to free ride on their investments, and support privatizing outer space. But using private property-based rules would transport Earth’s current division between haves and have-nots into outer space and could lead to destabilizing hostilities.
Property owned in common could allow the equitable use of commons’ resources, while preventing their destruction or hostile disputes over entitlements to them. But a commons approach might allow the resource to be over-used or inequitably distributed. While the public trust doctrine may lessen those risks, the doctrine will require modification to incentivize space development. This paper suggests supplementing the doctrine with private property management tools, like tradable development rights.
This article demonstrates that an economic context is essential to the metaphor that Anselm of Canterbury and Peter Abelard used in their arguments against a ransom theory of atonement. Contrary to typical analyses, which suggest their metaphor makes a point about obedience or honour that slaves or servants owe to a master or king, this metaphor in fact suggests relations between the lord of a manor and his servi – serfs bound to the land, perpetually indebted to the lord and effectively considered his property. Should servi attempt to desert their lord, he had the right simply to reclaim them wherever they went. Insofar as this right voided the servus’ choice to leave their lord, the metaphorical framework of manorial economy ruled out the ‘rights of the devil’ in a way previous debt-slavery and military frameworks for ransom theory (in themselves) did not.
Grotius recast Aristotelian theories of human sociability in terms of self-preservation. Religious war in Europe had undermined the Thomist notion of mutual human affection as a basis for society. If society was established by the need to survive, then justice, which maintained society, must be understood in terms of its contribution to that necessity. Grotius therefore resolved the Ancient Roman and Greek problem of how to reconcile justice and expedience by reinterpreting justice in terms of expedience. For an individual, or state, to act out of self-preservation was necessarily just. His fusion of justice and expedience was one reason he was insistent upon distancing his thought from the Academic Sceptics, such as Carneades, who argued that there was no such thing as justice and that all moral action was expedient. For Grotius, part of the law of self-preservation was the necessity for individuals to secure the means for self-preservation and this meant that the acquisition of property, and trade, were central parts of that process. These principles applied also to the artificial person of the state which found itself in competition for survival with other states. The expansion of the state was therefore justifiable for its preservation. Indeed, following this reasoning, empire effectively became a necessity, and an inevitability, for the survival of European states.
Privacy seems to belong to the past. The dating website OkCupid asks its users whether they occasionally use illegal drugs, selling that information in real time to marketers. Commercial data brokers hold thousands of data points about individuals. The problem concerns not only apps and websites but also the “Internet of Things” (IoT) that increasingly surrounds us. In The Age of Surveillance Capitalism, Shoshana Zuboff cites the example of a bed that uses “smart technology” to capture data on “heart rate, breathing and movement,” allegedly to improve the quality of sleep.