LLB220 Lecture Notes - Lecture 1: Jean Bodin, Edward Mctiernan, Murray Rothbard
Week 1 – Nature, Functions and Sources of Property Law
• Property can be seen as a tool of social organisation and closely connected to the
notion of democracy
• Enforceable against the world, not just a limited range of parties
• Sir William Blackstone:
- popet is that sole ad despoti doiio hih oe a lais ad eeises
over the eternal things of the world, in total exclusion of the right of any other
idiidual i the uiese
- thee is othig hih so geeall stikes the iagiatio, ad engages the
affetio of akid, as the ight of popet
Three dimensions to the concept of property:
1. Analytical → hat do e ea the te popet?
2. Philosophical → what justifications are there for a particular regime of property
rights?
3. Doctrinal → what are the legal rules that classify, define and delimit property rights,
and so mark out the boundary between property rights and other rights?
Analytical Dimension
What do we ea the te popet?
• Definition subject of intense debate
• Three basic elements in any property right:
1. Dominion
2. Exclusion
3. External things
• Dominion → control exercised by a person or legal subject, some form of legally
authorised power
• Exclusion → supplement to dominion → right to exclude others from enjoying the
same rights or interfering with property holders rights
• Blackburn also highlights the right to transfer or alienate (sell or giveaway) –
Milirrpum v Nabalco
Set of rules that must be present for ownership to arise (F Snare):
If A owns P:
1. A has the right to use P
2. Others may use P, only if A consents
3. A may permanently transfer the rights under 1 and 2 to other, specific persons by
consent
Other rules from criminal and tort areas:
• Punishment rules
• Damage rules (compensation)
• Liability rules → if As use of P auses daage to othes
find more resources at oneclass.com
find more resources at oneclass.com
• Note: if B takes possessio of As popet ad uses this popet fo eas, B a
use that wrongful act to claim property rights against others, including the former
owner
A M Honore
Identified 11 elements that may form the basis of a property right:
1. The right to possess → exclusive physical control, or reaping the rewards of others
using their creation or preventing others to use it e.g. copyright
2. The right to use
3. The right to manage → who may use and how
4. The right to the income
5. The right to the capital → consume, waste or destroy
6. The right to security → excluding others
7. The right to alienate → sell or giveaway during life or on death
8. The absence of term → enjoy indefinitely
9. The prohibition of harmful use → duty to refrain from using the thing to interfere
with others
10. Liability to execution → have the thing taken away for the satisfaction of debts
11. Residuary rights → governs entitlements of other persons to the thing when present
ownership has lapsed
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 14
• Decision that pre-dates Mabo No 2 (before native title was recognised)
• Yolgnu people in Arnhem Land claimed traditional lands on the Gove Peninsula
• Nabalco Co had a mining lease granted by the Commonwealth
• Yolgnu challenged mining lease
• Blackburn J:
- Recognised Yolgnu people had a system of law
- What the patised ast idetial to hat as patised i este Euope
but system could be considered law as it governed their relationship to the land
and other things
- Claim failed
- The nature of the relationship to the land was not proprietary in nature because
it ouldt e alieated sell/gie/tasfe
- The interest they had was vested in them permanently – land ouldt e taded
Is Property a Tautology?
Grays critique:
• Something is property because certain rights are protected. Certain rights are
poteted eause soethig is alled popet
• Thee is, o dout, soe iuit i saig that the potetio hih the Cout…
gave by injunctions to plaintiffs who acquired trade marks by use and reputation
made such trade marks a form of property – and then saying that the intervention of
the Cout i suh ases as ased upo the potetio of a … proprietary interest –
Colbeam Palmer Limited v Stock Affiliates Pty Limited (1968) 122 CLR 25
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find more resources at oneclass.com
Coseuees of soethig eig popet
• Property rights enforced by the state (via courts) and binding against the world
• If something is your property, you are protected by civil and criminal law
• If it is not, you may have other rights/protections, but these often wont be as
poeful/lea as those that attah to popet
• No one has to agree to your property rights existing before they are subject to them
Gaining private property rights
• Contracts of purchase
• Gift/inheritance
• Finding
• Creation (i.e. intellectual property)
• Contributing value (i.e. constructive trust/family law)
• The law encourages and discourages elements of society from gaining property
rights with taxation, incentives, etc.
• The availability of private property rights is not neutral
Philosophical Bases of Property
Theoists of popet la dot hae a lot of ediilit i the oo la
Judges aet oeed ith hat a theoist has to sa, the ae oeed ith ho to
solve an issue
Labour theory of property
• John Locke: creation of wealth through labour = entitlement to what they produce
through own efforts and whatever they have laboured on
• Individualism
• Popet ight i the eteal thigs of the old i hih the hae ied ith
thei laou e.g. athig of ild aial
• Society created to protect the entitlement
• Related to natural law theory
• Theory applies universally
• Problem – ieualit, fiite esoues, oppotuities to laou, no distinction
between the mixing of labour and mere acts of appropriation
Utilitarian justifications for private property
• Bentham: human activity should be evaluated on whether it causes or detracts from
happiness
• Society should be organised in a way to achieve greatest happiness for the greatest
number of people
• Property is a means to achieving happiness
• Wealth = happiness
• Assumes that every individual is a selfish, rational calculator who needs incentives
protected by law to foster industriousness
• Critiques → ignores the question of marginal utility (some things affect individuals
more than others), no distinction is drawn between different types of property
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Set of rules that must be present for ownership to arise (f snare): If a owns p: a has the right to use p, others may use p, only if a consents, a may permanently transfer the rights under 1 and 2 to other, specific persons by consent. Recognised yolgnu people had a system of law. What the(cid:455) p(cid:396)a(cid:272)tised (cid:449)as(cid:374)(cid:859)t ide(cid:374)ti(cid:272)al to (cid:449)hat (cid:449)as p(cid:396)a(cid:272)tised i(cid:374) (cid:449)este(cid:396)(cid:374) eu(cid:396)ope but system could be considered law as it governed their relationship to the land and other things. The nature of the relationship to the land was not proprietary in nature because it (cid:272)ould(cid:374)(cid:859)t (cid:271)e alie(cid:374)ated (cid:894)sell/gi(cid:448)e/t(cid:396)a(cid:374)sfe(cid:396)(cid:895) The interest they had was vested in them permanently land (cid:272)ould(cid:374)(cid:859)t (cid:271)e t(cid:396)aded. Grays critique: something is property because certain rights are protected. Colbeam palmer limited v stock affiliates pty limited (1968) 122 clr 25. Co(cid:374)se(cid:395)ue(cid:374)(cid:272)es of so(cid:373)ethi(cid:374)g (cid:271)ei(cid:374)g (cid:862)p(cid:396)ope(cid:396)t(cid:455)(cid:863: property rights enforced by the state (via courts) and binding against the world.
