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Abstract

This article offers three reflections on the nature of the metaphysical ‘wall’ erected between the ‘Included’ and the ‘Excluded/Other’ by the concept of private property and its implementation in a state’s legal apparatus. The first reflection explores the reality of the concept of private property, using Louis Althusser’s conception of ideology, in order to demonstrate that the liberal conception of private property masks power operating on two levels: the formal, repressive state apparatus, and the deeper, the personal, the real, the actual level, which allows the Included to act upon ego in ways that negatively affect the Excluded/Other found in the ideological state apparatus. The second argues that the masked power that is private property permits war to be waged by the Included as against the Excluded/Other at two levels: intra-state and inter-state. This reveals a paradox in the distinction between Included and Excluded/Other: while the distinction demonstrates the allocation of power over resources, the reality is that every individual on earth is both Included and Excluded/Other. The final reflection briefly considers what could replace private property as a means of allocating goods and resources within a society.
Reflections on Private Property as Ego and War
Paul Babie
1
Published online: 11 February 2017
Springer Science+Business Media Dordrecht 2017
Abstract This article offers three reflections on the nature of the metaphysical
‘wall’ erected between the ‘Included’ and the ‘Excluded/Other’ by the concept of
private property and its implementation in a state’s legal apparatus. The first
reflection explores the reality of the concept of private property, using Louis
Althusser’s conception of ideology, in order to demonstrate that the liberal con-
ception of private property masks power operating on two levels: the formal,
repressive state apparatus, and the deeper, the personal, the real, the actual level,
which allows the Included to act upon ego in ways that negatively affect the
Excluded/Other found in the ideological state apparatus. The second argues that the
masked power that is private property permits war to be waged by the Included as
against the Excluded/Other at two levels: intra-state and inter-state. This reveals a
paradox in the distinction between Included and Excluded/Other: while the dis-
tinction demonstrates the allocation of power over resources, the reality is that every
individual on earth is both Included and Excluded/Other. The final reflection briefly
considers what could replace private property as a means of allocating goods and
resources within a society.
Keywords Althusser Badiou Foucault Marx Z
ˇiz
ˇek Private law Property
law Property theory Private property Ego War
1 Walls
Private law sometimes starts with the pretence of equality—torts, that all parties are
equal with the law merely seeking to distribute loss; contract, that the parties are
equal bargaining partners on a level playing field. Private property, however, as a
&Paul Babie
paul.babie@adelaide.edu.au
1
Adelaide Law School, The University of Adelaide, Adelaide, Australia
123
Int J Semiot Law (2017) 30:563–591
DOI 10.1007/s11196-017-9505-1
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Article
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As we approach Justice Lionel Murphy’s 100th birthday on 30 August 2022, this article explores and renews a significant aspect in the jurisprudence of this truly radical judge: the social relations or progressive view of property. Justice Murphy both identified and judicially expounded this view well before the American social relations or progressive schools. And rather than merely identifying it as some intellectual museum piece, the article also builds on it. The article contains five parts. Part I contextualises the jurisprudential debates surrounding property. Part II recounts Justice Murphy’s judicial radicalism. Part III explores the elements of Murphy’s progressive-relational view of property. Part IV applies the elements of Murphy’s progressive-relational property to the High Court’s recent native title decision in Northern Territory v Griffiths. Part V offers some concluding reflections on the bright future for property found in Murphy’s conception.