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Placing Property
A Legal Geography of
Property Rights in Land
Palgrave Socio-Legal Studies
Series Editor
Dave Cowan, School of Law, University of Bristol, Bristol, UK
Editorial Board
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The Palgrave Socio-Legal Studies series is a developing series of monographs
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Amanda Byer
Placing Property
A Legal Geography of Property Rights in Land
Amanda Byer
Sutherland School of Law
University College Dublin
Dublin, Ireland
ISSN 2947-9274 ISSN 2947-9282 (electronic)
Palgrave Socio-Legal Studies
ISBN 978-3-031-31993-8 ISBN 978-3-031-31994-5 (eBook)
https://doi.org/10.1007/978-3-031-31994-5
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Preface
This book is the result of postdoctoral research undertaken as part of a
subproject investigating the origins and development of land as property
within the Property [In]Justice project. Property [In]justice (2020–2025) is
supported by the European Research Council (ERC) under the European
Union’s Horizon 2020 research and innovation programme, grant agreement
No. 853514. The project investigates the role of international law in creating
spatial justice and injustice through its conception of property rights in land.
The project expands traditional legal analysis to include interdisciplinary and
cross-cultural perspectives and aims to push the boundaries of property and
advocate for more place-based understandings of land across international law.
The project is led by Professor Amy Strecker, and hosted by the Sutherland
School of Law, University College Dublin.
Diverse non-ownership interests in land predate the current institution of
private property rights, yet international law, which claims to be universal,
appears to give priority to one interpretation of property, derived from the
common law. Placing Property takes this premise as its starting point, adopting
a legal geographical analysis of property’s conceptual foundations in the
common law, uniting cultural and environmental critiques of property in law
and geography, and considering the effects of property rights on the cultural
dimension of land, across a range of communities, Indigenous and non-
Indigenous. The law’s role in constituting property in detachment from land is
an underlying theme, and this work is meant to both ground and bridge prop-
erty analyses concerned with confronting the transnational effects of pr operty
law on land.
My gratitude to the School of Law, University College Dublin, where this
research was conducted, and the academic community, including colleagues
and staff on campus, for providing such a welcoming environment—during a
pandemic no less! I am indebted to Professor Amy Strecker, Principal Investi-
gator of the Property [In]Justice project for her support and encouragement,
v
vi PREFACE
for believing in this work and her sound advice as to its potential—right on all
fronts, Amy! Thank you to the Property [In]justice team—fellow legal geog-
raphy comrades Sonya Cotton, Sinéad Mercier, and Raphael Ng’etich read
and commented on the draft at various stages. Deirdre Norris was invaluable
during the publishing process. And a special thank you to Nicole Graham
and Kenneth Olwig for reviewing the final draft—‘Placing Property’ owes
much to their pioneering scholarship in the legal and cultural geography fields
respectively.
Thanks are due to Palgrave Macmillan/Springer Nature, especially
Josephine Taylor, Senior Commissioning Editor, Criminology & Socio-Legal
Studies for her positive response to ‘Placing Property’ and Dave Cowan,
Shreenidhi Natarajan and Bhavya Rattan for their assistance during the
publishing process. I am also grateful to the anonymous reviewers, whose in-
depth comments enabled me to refine aspects of my argument and strengthen
the draft, and the Editing Press for providing editorial assistance via a Laura
Bassi Junior Academic Scholarship.
Finally, thank you to the European Research Council (ERC), under the
EU’s Horizon 2020 research and innovation programme, grant agreement
no. 853514, whose funding made the publication of this work possible.
Dublin, Ireland
January 2023
Amanda Byer
Acknowledgements
This book has been supported by the European Research Council (ERC)
under the European Union’s Horizon 2020 research and innovation
programme, grant agreement No. 853514. The Property [In]Justice project
(2020–2025) is funded by the ERC and investigates the role of international
law in creating spatial justice and injustice through its conception of property
rights in land. In going beyond traditional legal analysis to include interdisci-
plinary and cross-cultural perspectives, the project aims to push the boundaries
of property and advocate for more place-based understandings of land across
international law. The project is led by Professor Amy Strecker, and hosted
by the Sutherland School of Law, University College Dublin. The content of
this publication does not reflect the official opinion of the European Union.
Responsibility for the information and views expressed therein lies entirely with
the author.
This project has received funding from the European Research Council
(ERC), under the EU’s Horizon 2020 research and innovation programme,
grant agreement no. 853514
vii
Praise for Placing Property
“This wonderfully readable and timely book takes readers on an intellectually
compelling tour of land rights, customs, and practices across an impressive
range of landscapes including pre-feudal Scandinavia, pre-Columbian America,
the colonisation of the Caribbean and Ireland… Byer powerfully demonstrates
the need to embed land laws within their geographical conditions and limits.”
—Nicole Graham, Professor and Associate Dean Education, Sydney Law
School, The University of Sydney, Australia; author of Lawscape: Property,
Law, Environment (Routledge, 2011)
“This book uniquely brings together the usually disconnected domains of
landscape, law, place, property and justice into a cohesive whole. This will
become an invaluable source to readers seeking a comprehensive under-
standing of the contemporary scholarly questioning that is unsettling the once
so seemingly settled absolute right of property.”
—Kenneth R. Olwig, Emeritus Professor of Landscape Architecture, Swedish
University of Agricultural Science, Alnarp
ix
Contents
1 Introduction: A Legal Geography of Property Rights in Land 1
2 Placing Property in the Landscape 7
3 Locke and the Homogenisation of the Landscape 17
4 Blackstone and the Externalisation of Landscape 27
5 Marx and the Dephysicalisation of the Landscape 37
6 Extinguishing Landscape, Creating Property: Property
and Spatial Injustice 53
7 Progressive Property: A Spatially Just Approach to Property? 59
8 Conclusion: Property’s Placelessness 65
Index 69
xi
About the Author
Amanda Byer is a postdoctoral researcher in the ERC-funded Property
[In]Justice Project based at the Sutherland School of Law, University College
Dublin. She holds a Ph.D. in Cultural Heritage Law from Leiden Univer-
sity, the Netherlands, and an LL.M. in Environmental Law from University
College London. Amanda’s research interests lie at the intersection of land-
scape, law and spatial justice, engaging aspects of environmental law, cultural
heritage law and property law. Her doctoral research (monograph published
with Sidestone Press, 2022) involved a legal geographical analysis of heritage,
planning and environmental laws in the English-speaking Caribbean (Lesser
Antilles) and considered the importance of land’s cultural dimension to
heritage protection. Previously, Amanda was a postdoctoral fellow at the New
York University School of Law, where she explored the role of the Escazú
Agreement on Access to Information, Public Participation and Justice in
Environmental Matters in Latin America and the Caribbean in building legal
institutions for climate resilient development in small island developing states.
xiii
CHAPTER 1
Introduction: A Legal Geography of Property
Rights in Land
Abstract The opening chapter sets out the aim of the work, which is to
examine the common law concept of property in relation to land using a
landscape lens. The chapter distinguishes this research from other genealogies
of property by emphasising the use of the legal geography methodology to
critique property in terms of its relation to space. The chapter summarises the
main features of modern land law. The book’s structure is outlined, beginning
with an exploration of property’s roots in landscape, an investigation of the
development of the classic hallmarks of property through a legal geograph-
ical analysis of classic property theory, a discussion of property’s linkages to
spatial injustice and a critique of progressive property’s potential to challenge
the ownership paradigm in property law.
Keywords Common law · Property · Landscape · Legal geography · Spatial
justice
Land undergirds human existence, providing the material conditions for suste-
nance, shelter and quality of life. The human past reveals a variety of practices
and strategies for land use, given the diversity and instability of environments
over time. It is therefore remarkable that land today is classified according to
one main characteristic: ownership. Private property rights insofar as they r efer
to land are defined by the exclusive ownership of a bundle of rights that can be
transferred by title. The legal title holder of such rights can thus exclude any
© The Author(s) 2023
A. Byer, Placing Property, Palgrave Socio-Legal Studies,
https://doi.org/10.1007/978-3-031-31994-5_1
1
2A. BYER
non-member from the use and benefit of the land.1 In both the common law
and civil law systems, ius abutendi grants the owner the right to neglect and
abuse property, which conflicts with the sustainable governance of resources2
and notions of integrating planetary limits in policy-making.3
Private property was not the dominant form of land use around the
world, or even in England, until about 1800.4 As Rachael Walsh and Lorna
Fox O’Mahony note, the ‘1925 legislation’,5 a suite of consolidating statutes
establishing the ‘modern’ framework for land ownership in England, elimi-
nated ‘the features associated with the aristocratic, status-based land system, in
favour of capitalist, contract-based free trade in land…Land was re-configured
as a fungible commodity, as readily exchangeable as any other’.6 In the transi-
tion to a market-based concept of property rights, informal and unregistered
claims to land were unacknowledged. Today, property in land can be defined
as land, or a right to the land, or a social utility, leading Kevin Gray and Susan
Gray to conclude that ‘few concepts are quite so fragile, so elusive and so often
misused as the idea of property’.7
It is with these informal understandings of land disregarded by the 1925
legislation and modern land law more generally that this book is occupied,
as they are directly linked to the amorphous nature of property, its present-
day contradictions and incompatibilities. Current property law texts agree
with Gray and Gray, admitting that classic property theory rests on precar-
ious conceptual foundations.8 Nevertheless, this position has been qualified by
Alison Clarke, noting that land law was incrementally developed in England
with no seismic changes9 ; no particular interest prevailed once the system was
1 Kevin Gray and Susan Francis Gray, ‘The Idea of Property in Land’ in Susan Bright
and John K Dewar (eds), Land Law: Themes and Perspectives (Oxford University Press
1998) 15–51, 20.
2 Margaret Davies (2020) ‘Can Property Be Justified in an Entangled World?’ Global-
izations 17(7): 1104–1117, 1105. https://doi.org/10.1080/14747731.2019.1650696.
3 Kate Raworth, Doughnut Economics: Seven Ways to Think Like a 21st Centur y Economist
(Random House 2017).
4 Martti Koskenniemi (2017) ‘Sovereignty, Property and Empire: Early Modern English
Contexts’ Theoretical Inquiries in Law 18: 355–389, 355.
5 Law of Property Act 1925, Land Charges Act 1925, Land Registration Act 1925,
Settled Land Act 1925, Administration of Estates Act 1925.
6 Rachael Walsh and Lorna Fox O’Mahony, ‘Land Law, Property Ideologies and the
British-Irish Relationship’ (2018) Common Law World Review 47(1): 1–25, 12. See also
Martin Dixon, Modern Land Law (Taylor and Francis 2018).
7 Gray and Gray 15.
8 Alison Clarke, Principles of Property Law (Cambridge University Press 2020) 5, 12,
17 and at 176, noting that property as private ownership is too narrow and outmoded a
category for the range of interests in land, propertisation is not required for full use and
control, and though land is a universal resource, it is subject to different cultures living in
different environments.
9 Clarke, Principles of Property Law 178.
1 INTRODUCTION: A LEGAL GEOGRAPHY OF PROPERTY … 3
rationalised10 ; and former colonies adapted the common law to local condi-
tions.11 This restates the common law stance in modern terms. What Gray
and Gray, Clarke, and other property lawyers and scholars have all acknowl-
edged is that property has diverged from land in a complex historical process.
Yet, despite legal innovations to promote sustainable land use today, modern
legal conceptions of property have proven unable to address the realities
of land-driven crises such as pollution, climate change and the pressures of
globalisation, and in many cases, enables them.
What was erased by the 1925 Act was not just an antiquated system of
tenures, to be replaced by a modern land registration system, but ways of
seeing and understanding land defined by features and processes, rather than
boundaries; specifically, the relationships communities developed in interaction
with their environs, and the customs generated to maintain those relationships
and a way of life. Known as landscape, this cultural geographical descriptor of
place implied a distinct locality that connected community, land and law for
centuries and functioned as a rubric for diverse non-proprietary interests in
land.12
This book uses the landscape lens to trace the emergence of property in
English land law and the common law system, as it diverged from a cluster of
place-derived interests to assume its current placeless iteration. ‘Placing’ prop-
erty is twofold in meaning: contextualising property as the concept evolved
in the development of real property law; and describing location-based under-
standings of land, in which complementary and competing spatial definitions
of land represented viable non-ownership interests shaped by their material
conditions—the landscapes of Great Britain, Ireland, the Americas and the
Caribbean in particular. The book is therefore both a genealogy and legal
geography of property, expanding previous property scholarship that charted
the historical development of the term as it emerged from court records,
or considered the concept indirectly in relation to the development of the
common law.13
10 Ibid 180.
11 Ibid 184.
12 Amy Strecker, Landscape Protection in International Law (Oxford University Press
2017) 185.
13 David Seipp, ‘The Concept of Property in the Early Common Law’ (1994) Law
and History Review 12(1): 29–91; Robert C. Ellickson, ‘Property in Land’ (1993) The
Yale L a w Jo u rnal 102(6): 1315–1400; Kenneth J. Vandevelde, ‘The New Property of
the Nineteenth Century: The Development of the Modern Concept of Property’ (1980)
Buffalo Law Review 29: 325–368; Robert C Palmer ‘The Origins of Property in England’
(1985) Law and Histor y Review 3(1): 1–50; David A. Thomas, ‘Origins of the Common
Law ( A Three-Part Series) Part I: The Disappearance of Roman Law from Dark Age
Britain’ (1984) Buffalo Law Review 563–599; ‘Origins of the Common Law (A Three
Part Series)—Part II: Anglo-Saxon Antecedents of the Common Law’ (1985) Buffalo Law
Review 453–504; ‘Origins of the Common Law (A Three-Part Series) Part III: Common
Law Under the Early Nor mans’ (1986) Buffalo Law Review 109–127; George Burton
Adams, ‘The Origin of the Common Law’ (1924) TheYaleLaw Journal 34(2): 115–128.
4A. BYER
This spatial reading of property examines the geographical origins of the
legal concept and its impact on specific places. Legal geography conceives of a
broader understanding of the law beyond its doctrinal foundations, to uncover
spatial assumptions and biases that are accepted or ignored.14 Formal law may
derive much of its (often silent) ideology and values from pre-existing systems
of lore and norms that are spatially located, influencing its development
and implementation.15 Specifically, legal geography engages law’s presumed
neutrality in the context of ‘spatial blindness’,16 and asks how established legal
categories such as property can be reconciled with the reality of geography.17
This requires integrating the material conditions of specific places into the law.
As Robyn Bartel et al. have noted, ignoring geography has political conse-
quences; if we do not ask questions about the location of law’s impact, and
therefore who it impacts, then its effects, such as environmental destruction
or the dispossession and genocide of Indigenous peoples, may be dismissed.18
Geographically sensitive rules thus make the law relevant and capable of deliv-
ering spatial justice. Legal geography is also cognisant of the historical context,
examining material conditions, limits and connections over time.19
In the first chapter, property’s origins are explicated, followed by a discus-
sion of the key developments in the conceptualisation of land as property,
as the common law system gradually retreated from grounded perspectives
on land in favour of abstract rights that are individual, exclusive and alien-
able—the so-called classic indicia or hallmarks of property. The contributions
of Locke, Blackstone and Marx are each analysed in relation to the classic
hallmark of property with which they correspond. The implications of private
property as the outcome of the legal extinguishment of the landscape are then
discussed in the context of spatial injustice. I address briefly the potential of
the progressive property school to contribute to a more spatially just concept
of property before concluding with some final thoughts.
14 Antonia Layard ‘Reading Law Spatially’ in Naomi Creutzfeldt, Marc Mason and
Kirsten McConnachie (eds), Routledge Handbook of Socio-Legal Theor y and Methods
(Routledge 2019) 233.
15 Robyn Bartel, Nicole Graham, Sue Jackson, Jason Hugh Prior, Daniel Francis
Robinson, Meg Sherval and Stewart Williams, ‘Legal Geography: An Australian Perspective’
(November 2013) Geographical Research 51(4): 339–353, 346.
16 Antonia Layard, ‘What Is Legal Geography?’ (University of Bristol Law School Blog ,
11 April 2016), http://legalresearch.blogs.bris.ac.uk/2016/04/what-is-legal-geography/,
accessed 11 May 2021.
17 Layard ‘Reading Law Spatially’ 237.
18 Bartel et al., 341.
19 Ibid 349.
1 INTRODUCTION: A LEGAL GEOGRAPHY OF PROPERTY … 5
References
GB Adams, ‘The Origin of the Common Law’ (1924) The Yale Law Journal 34(2):
115–128.
R Bartel, N Graham, S Jackson, JH Prior, DF Robinson, M Sherval and S Williams,
‘Legal Geography: An Australian Perspective’ (November 2013) Geographical
Research 51(4): 339–353.
S Bright and JK Dewar (eds), Land Law: Themes and Perspectives (Oxford University
Press 1998).
AClarke, Principles of Proper ty Law (Cambridge University Press 2020).
N Creutzfeldt, M Mason and K McConnachie (eds), Routledge Handbook of Socio-
Legal Theory and Methods (Routledge 2019).
M Davies ‘Can Property Be Justified in an Entangled World?’ (2020) Globalizations
17(7): 1104–1117.
M Dixon, Modern Land Law (Taylor and Francis 2018).
RC Ellickson, ‘Property in Land’ (1993) The Yale Law Journal 102(6): 1315–1400.
M Koskenniemi (2017) ‘Sovereignty, Property and Empire: Early Modern English
Contexts’ Theoretical Inquiries in Law 18: 355–389.
A Layard, ‘What Is Legal Geography?’ (University of Bristol Law School Blog 11
April 2016), accessed 11 May 2021, http://legalresearch.blogs.bris.ac.uk/2016/
04/what-is-legal-geography/.
RC Palmer ‘The Origins of Property in England’ (1985) Law and Histor y Review
3(1): 1–50.
K Raworth, Doughnut Economics: Seven Ways to Think Like a 21st Century Economist
(Random House 2017).
D Seipp, ‘The Concept of Property in the Early Common Law’ (1994) Law and
History Review 12(1): 29–91.
AStrecker, Landscape Protection in International Law (Oxford University Press
2017).
DA Thomas, ‘Origins of the Common Law (A Thr ee-Part Series) Part I: The Disap-
pearance of Roman Law from Dark Age Britain’ (1984) Brigham Young University
Law Review 4: 563–599.
———, ‘Origins of the Common Law (A Three-Part Series) Part II: Anglo-Saxon
Antecedents of the Common Law’ (1985) Brigham Young University Law Review
3: 453–504.
———, ‘Origins of the Common Law (A Three-Part Series) Part III: Common Law
Under the Early Normans’ (1986) Brigham Young University Law Review 1: 109–
127.
KJ Vandevelde, ‘The New Property of the Nineteenth Century: The Development of
the Modern Concept of Property’ (1980) Buffalo Law Review 29: 325–368.
R Walsh and L Fox O’Mahony, ‘Land Law, Property Ideologies and the British-Irish
Relationship’ (2018) Common Law World Review 47(1): 1–25.
6A. BYER
Open Access This chapter is licensed under the terms of the Creative Commons Attri-
bution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes were
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The images or other third party material in this chapter are included in the chapter’s
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intended use is not permitted by statutory regulation or exceeds the permitted use,
you will need to obtain permission directly from the copyright holder.
CHAPTER 2
Placing Property in the Landscape
Abstract To explain property’s origins in place or landscape, this chapter
draws on legal, historical, geographical, etymological and archaeological
research to reconstruct how people understood land before property. The
chapter relies on two main sources: Kenneth Olwig’s cultural geographical
research on early landscapes in pre-feudal Scandinavia and Sub-Roman/pre-
enclosure Britain illustrates the relationship between land, law and people;
and Nicole Graham’s etymological analysis linking property not to ownership
but to proximity affirms that a specific location to which someone belonged
generated relations relevant to identity, community and a sustainable way of
life. Land was communal, dynamic and characterised by attachment, the polar
opposite of property’s defining characteristics today (individual, exclusive and
alienable).
Keywords Landscape · Place · Propriety · Custom · Identity · Graham ·
Olwig
Legal historians have noted that traditional analyses of property rights tend
to begin with the English Whig philosopher John Locke, rarely focusing on
the meaning, scope or importance of property in the centuries of common
law development predating Locke, and this is significant because the modem
lawyer’s concept of proper ty would have been unrecognisable to those early
practitioners.1 We, therefore, begin before property, focusing primarily on
1 Seipp 30.
© The Author(s) 2023
A. Byer, Placing Property, Palgrave Socio-Legal Studies,
https://doi.org/10.1007/978-3-031-31994-5_2
7
8A. BYER
Kenneth Olwig’s work on landscapes,2 Nicole Graham’s research on property,
environment and law,3 as well as archaeological and etymological scholarship,
to paint a picture of land in the centuries preceding the Norman conquest of
England.
As discussed earlier, private property is of recent construction. Archaeolog-
ical evidence has indicated that open field systems were in use in Britain for
hundreds of years befor e the Anglo-Saxons arrived in the fifth century.4 Land
managed in common afforded communities the opportunity to work together
to protect resources and sustain their families. The particular character of cattle
grazing and crop planting generated cooperative practices, which later formed
the basis of customary law. Institutions were created to embed, defend and
amend this locally acquired knowledge for future generations. This system
was overlaid and adapted by successive communities throughout the island’s
history,5 and hybrid communities may have arisen, based on archaeological
and place-name evidence in the fenlands for example.6
The words ‘land’, ‘landscipe’ and ‘landsceap’ enter early English through
the Anglo-Saxon language.7 The link between ideas of customary law, insti-
tutions embodying that law, and the people enfranchised to participate in
the making and administration of law was fundamental to the root ‘land’,
which was not dissimilar to our word country, with its own legal system
and representative council.8 The primar y meaning of land attached to a farm
2 Kenneth Olwig, Landscape, Nature and the Body Politic: From Britain’s Renaissance to
America’s New World (University of Wisconsin Press 2002).
3 Nicole Graham, Lawscape: Property, Environment, Law (Routledge-Cavendish 2010).
4 Susan Oosthuizen, ‘Recognizing and Moving on from a Failed Paradigm: The Case
of Agricultural Landscapes in Anglo-Saxon England c. AD 400–800’ (June 2016) Journal
of Archaeological Research 24(2): 179–227, 214. Oosthuizen states that the archaeological
record calls into question the accepted premise that common property rights were an
Anglo-Saxon innovation; it is possible that they were a traditional form of governance in
early medieval England, inherited from a prehistoric and Romano-British past.
5 Oosthuizen 216. The boundaries of prehistoric and Roman pastures are often marked
by definitive earthworks that were used during the Anglo-Saxon period. The areas within
them, apparently grazed (since there is no evidence of arable cultivation), were not subdi-
vided into smaller units as might be expected for individual households, suggesting that
flocks and herds were collectively managed. This implies that graziers needed to collec-
tively manage the outer boundaries of the pasture, govern rights of access, regulate seasonal
access to ensure equitable exploitation, manage disputes and so on. Substantial prehistoric
gatherings are well evidenced archaeologically, timed to coincide with the arrival and/or
departure of the animals when disputes about rights to grazing and ownership of stock
were most likely to occur.
6 Susan Oosthuizen, ‘Culture and Identity in the Early Medieval Fenland Landscape’
(2016) Landscape History 37(1): 5–24, 5. https://doi.org/10.1080/01433768.2016.117
6433.
7 Joseph Bosworth, ‘Land-Scipe’; ‘Land-Sceap’. In An Anglo-Saxon Dictionary Online,
edited by Thomas Northcote Toller, Christ Sean, and Ondˇrej Tichy. Prague: Faculty
of Arts, Charles University, 2014, https://bosworthtoller.com/21128; https://boswortht
oller.com/21126 accessed 5 December 2020.
8 Olwig, Landscape, Nature and the Body Politic 17.
2 PLACING PROPERTY IN THE LANDSCAPE 9
or manor or cultivated land such as a common or meadow, and in feudal
Europe, these lands were not separate properties owned by individuals, but
complexes of use rights that were determined by custom and personal feudal
obligations. These lands, taken together, could constitute larger lands under
a given body of law with ancient origins predating feudalism.9 Where lands
were more challenging to inhabit, and required specialised knowledge and
complex systems of organisation, there were less likely to be manors and so,
they evolved to be more autonomous in character—peasant republics and flex-
ible alternatives to centralised states.10 This distinguished a landscape from an
administrative unit, as there was more independent internal development, and
this gave the landscape’s inhabitants a greater right to self-determination and
participation.11
‘Land’ was therefore a system of nested obligations, use rights and institu-
tions representing a people and its relationship with the material environs. Its
cognates ‘landscipe’ and ‘landsceap’ illuminate this relationship, as they refer
to ship or shape. They denote both the role of the people in shaping the land,
giving it its unique physical or cultural character, the character of the land
itself in influencing the practices and livelihoods of those people in a dynamic
mutually constitutive process and the shape or form the abstract quality of
this relationship assumed. Ship, as in fellowship, signified the abstract quali-
ties generated by the people working the land together, informing the values
and beliefs that bound them together, and provided the moral content for the
representation inhabitants of the land received for working the land together.
This representation was embodied in the institutions developed to protect
these customary rules and rights, in open-air assemblies or things, and the
rules and practices they developed, informed by the land and generated by
their association with each other, became their locally derived laws.12
Law is thus an inherent element of the landscape. As Olwig writes, the
ancient Germanic name for the representative legal and political body of a
land was the thing or moot—the root of the modern words ‘thing’ and ‘meet-
ing’.13 It is the deliberation of the thing that builds the land as a polity or
res publica (transliterated ‘public thing’), or landscape. This interplay between
9 Ibid.
10 Ibid 15.
11 Ibid 11.
12 Kenneth Olwig, ‘Representation and Alienation in the Political Landscape’ (2005)
Cultural Geographies 12(1): 19–40, 20: ‘Landscape’ is distinguished from land by the
suffix -scape, which is equivalent in function to the more common English suffix -ship,
and this suffix generates an abstraction. Thus, as Olwig explains, there might be two
friends, comrades or fellows in a room, both concrete beings, but between them they
share something abstract and difficult to define: friendship, comradeship or fellowship; it
is the suffix -ship which designates this abstract quality, the nature, state or constitution of
being a friend, and these qualities in turn are linked together by Olwig to draw attention
to their concretised and institutionalised counterparts (nature, the state and a constitution).
13 Olwig, ‘Representation and Alienation’ 22.
10 A. BYER
land, community practice and its institutionalised relationship thus renders the
landscape a political one, and situates the power of the representative body in
custom.14
Landscipe in the Old English spelling15 is derived from the Germanic
family of languages: Dutch landschap, Danish landskab, Swedish landskap
and German landschaft.16 It refers to the land, its character, traditions
or customs.17 The landschaften of Angeln and Frisia from Germany and
Denmark produced the settlers who pushed the Britons north and gave
England its Anglo-Saxon identity.18 As noted earlier, archaeological evidence
indicates that they could very well have adopted British land practices, for
communal land use was already extant in the Celtic world.19
This is the context in which land use and ownership arose in England. The
landschaft was a community of law,20 with its own representative council or
ting, as in Jutland in Denmark. The institution of the ting was also found in
England where it was known as the moot. The Danish land was divided into
herreder, each with its own ting, much as the English shire or county (such as
Northumberland) was divided into hundreds. Other historic shires and areas
with the suffix -land or -folk (Cumberland, Westmoreland, Suffolk, Norfolk)
provide evidence of once-autonomous areas in England.21 All important deci-
sions binding the community were made at this assembly, also functioning
as a court, and as a mechanism communicating between local communities
and central authorities.22 Custom and culture, therefore, defined the land as a
social entity that found physical expression in the area under its law.23
The common law thus originated in local custom. At the beginning of the
1100 s, the English legal system was pluralistic, fragmented and decentralised.
14 Ibid.
15 Olwig, ‘Representation and Alienation’ 22.
16 Olwig, Landscape, Nature and the Body Politic 232.
17 Ibid 18.
18 Olwig 10–11.
19 The rundale communal land system potentially predates the Norman Conquest and
the centralised system of land tenure that would be imposed on Irish society. As a distinct
pattern of land use that had existed for at least 200 years prior to the Famine, it is
associated with the development of Celtic Ireland. Rúndale is a term derived from two
Gaelic words: ‘roinn’, which refers to a sharing or division of something, and ‘dail’ which
usually refers to a meeting or assembly. A rúndale was a meeting where members of a
peasant community or clachan met to distribute and redistribute land. Clachan land was
known as rundale, and this communal ownership of land, and distribution of social product
was based on shared lineage and lineage mode of production. See Dean M. Braa, ‘The
Great Potato Famine and the Transformation of Irish Peasant Society’ (1997) Science &
Society 61(2): 193–215, 200–201.
20 Olwig, Landscape Nature and Body Politic 20.
21 Ibid 49.
22 Ibid 17.
23 Ibid.
2 PLACING PROPERTY IN THE LANDSCAPE 11
Jurisdiction was largely based on medieval political units—the shire, hundred
or borough. From the tenth century onwards, each of these jurisdictions had
been nominally under the supervisory control of the King.24 Until the eigh-
teenth century, jurisdiction was predominantly organised by subject-matter or
personal status: ecclesiastical courts determined matters relating to church law,
manorial courts applied the body of customary law known as manorial law to
matters concerning village life and forestry courts oversaw the body of law
known as the law of the forest.25
Land use in Anglo-Saxon England was thus far more diverse and flexible
and modes of succession demonstrate this.26 Bookland (bocland) and folkland
(folcland), were used to describe all land in Anglo-Saxon England, but the
words themselves are rare in Anglo-Saxon documents.27 Bookland is believed
to refer to land granted by royal boc, or charter, while folkland addressed
everything else, including inherited land and common land. Another category,
family land, has been suggested.28 Early laws indicate that these categories
were fluid, and relied on the public assemblies or courts to modify succession
arrangements and mediate disputes. The regular meetings of the shire and
hundred would have provided the ideal forum for these declarations.29 Such
land use systems were therefore not primitive or idyllic in character. They were
flexible, in order to accommodate the layered and socially complex structures
of their communities, where common property rights coexisted with, comple-
mented, qualified and enhanced existing or nascent ‘vertical’ hierarchies of all
kinds, whether social, religious, political or economic.30
These landscapes could adapt and reinvent themselves, even in challenging
environments such as the fenlands, where bylaws were preserved in oral
traditions of custom and practice to ensure equitable distribution of shared
24 Shaunnagh Dorsett ‘Since Time Immemorial: A Story of Common Law Jurisdiction,
Native Title and the Case of Tanistry’ (2002) Melbourne University Law Review 26: 32–59,
36.
25 Dorsett at 34 and 36.
26 Julie Mumby, ‘The Descent of Family Land in Later Anglo-Saxon England’ (2011)
Historical Research 84(225): 399–415.
27 According to Julie Mumby, folkland appears only twice: (1) The will of Ealdorman
Alfred (871 X 899) (P. H. Sawyer, Anglo-Saxon Charters: an Annotated List and Bibliog-
raphy (1968) available online at http://www.esawyer.org.uk/ accessed 19 October 2020;
(2) ‘The wife’s lament’, l. 47 (A Guide to Old English, ed. B Mitchell and FC Robinson
[7th edn., Oxford 2007] 276–279). For all 47 occurrences of bookland, see University
of Toronto, Dictionary of Old English Web Corpus, http://www.doe.utoronto.ca/index.
html accessed 19 October 2020. ‘Folkland’ and ‘bookland’ only appear three times in the
same document—see Mumby 399, and Paul Vinogradoff, ‘Folkland’ (1893) The English
Historical Review 8(29): 1–17, 1.
28 Mumby 399.
29 Ibid 404 and at 414.
30 Susan Oosthuizen, ‘Beyond Hierarchy: Archaeology, Common Rights and Social
Identity’ (2016) World Archaeology 48(3): 381–394, 385.
12 A. BYER
resources.31 This did not preclude interaction with hierarchical structures,
and certainly, the arrival of the Normans marked the beginning of the feudal
period in England and changes to pr ocedures in land use. As Shaunnagh
Dorsett notes, the law was very much in flux at this time, flanked by alter-
native, and eventually, competing jurisdictions. The pre-Norman divisions of
shire, hundred or borough survived the Norman Conquest and continued to
function. Each had separate courts, but commonly overlapping jurisdictions.32
Nevertheless, control over land did not signify ownership in the modern
sense. Feudal lords did not possess land as property, as was the case under
the Roman law of possessio. Feudal ties to the land were developed through
interpersonal relations of fealty, whereas the customary law, which guaranteed
access to the commons, was the expression of particular local and national
communities.33 The lord’s seigneurial rights were therefore not absolute,
and merely one of an array of interests that were place-determined.34 As
David Seipp writes, land was different: ‘land meant an army could be raised;
it sustained overlapping claims and casual and regular uses, and was there-
fore treated differ ently in the courts, unlike property claims in goods and
animals’.35
We can see how property and landscape intersect when the etymology of
property is examined. Graham writes that property originally invoked an inte-
grated relationship between people and place,36 a relationship that mirrored
the connection between people, land and the law in the landscape. This was
derived from the Old French ‘proprete’ from the Latin pr oprietas meaning,
proper to, one’s own or special character.37 The French word ‘propre’ means
clean or suitable in the sense of ‘close’ or ‘near’ or ‘in place’, and the Old
French and Latin meanings derived from the Greek ‘idiotes’, meaning a
distinctive or distinguishable quality, the peculiar nature or specific character,
and it was the means by which ownership could be claimed—the proximity of
the thing to the person was considered sufficiently close so as to be associated
31 Oosthuizen, ‘Beyond Hierarchy’ 385.
32 Dorsett 36.
33 Olwig, Landscape, Nature and the Body Politic 53.
34 Ibid 123.
35 Seipp 86–87.
36 Graham 24.
37 Chambers Dictionary online, https://chambers.co.uk/search/?quer y=property&title=
21st accessed 5 December 2020. Graham 24–27: property originally linked people and
place. What was proper to a person were the physical qualities so closely associated with
that person that he could be identified with them. Today, the secondary meaning is signif-
icant only in the scientific world, e.g. what are the properties of hydrogen. The primary
meaning pertains to abstract relations between people, rather than with or over physical
things. Today, the dominant feature of property is alienability not identity, inverting the
original meaning.
2 PLACING PROPERTY IN THE LANDSCAPE 13
with that person.38 Real pr operty signified a human relationship with the phys-
ical features of the landscape that overrode lesser forms of property (in goods
or animals). Real property could not be explicated without this identifying s et
of geophysical and cultural relations.39
Gray and Gray call this a sense of propriety, ‘rightness’, meaning that prop-
erty does not derive from any sense of entitlement (enforceable exclusory
title).40 Property linked to identity, because to say something is ‘my own’
signifies that it forms part of who they are. Because land was an important
part of identity in medieval England and the early common law, the location of
land was relevant in any dispute, rather than abstract legal categories.41 Never-
theless it is the secondar y meaning of property that prevails today, meaning an
interest in having a thing, rather than the attribute or characteristic of a person
or thing.42
This inversion of property’s meaning, from mutual identification to alien-
ability, from attachment to detachment, reflects what Graham describes as
the transformation in the way modern Anglo-European relationships between
people and place have changed over time.43 Property is defined not by iden-
tification or association with a place, but its alienation from it. This connotes
a shift from a mutually defining relationship of ownership and identity to
a unilateral relationship of ownership and alienability.44 Today, property is
viewed as abstract entitlements exchanged between persons that are alienable
from, rather than proper to a person, no longer attached to or even integrated
with the identity of an individual or community.45 Landscape’s demotion is
evident by the word’s re-entry in the English language in the sixteenth century,
associated with landscape painting and gardening, viewing the land from the
individual perspective at a distance, based on cartographical and surveying
techniques and representation through visual rather than political means.46
Land and place had become synonymous with property—by the seven-
teenth century, the term itself denoted both property and knowing one’s
38 Graham 26.
39 Ibid 25.
40 Gray and Gray 15: The term ‘property’ is simply an abbreviated reference to a
quantum of socially permissible power exercised in respect of a socially valued resource.
Used in this way, the word ‘pr operty’ reflects its semantically correct root by identifying
the condition of a particular resource as being ‘proper’ to a particular person. In this
deeper sense… the language of ‘property’ may have more in common with ‘propriety’
than with entitlement; and the notion of a ‘property’ right may ultimately have more to
do with perceptions of ‘rightness’ than with any understanding of enforceable exclusory
title.
41 Seipp 46, 49 and Graham 26.
42 Graham 26.
43 Ibid 25.
44 Ibid 26.
45 Ibid 27.
46 Olwig, ‘Representation and Alienation’ 23.
14 A. BYER
place.47 The historical concept of landscape in the primar y substantive sense of
place and polity, referring to lands ‘scaped’ or shaped according to customary
law as adjudicated by representative legal assemblies especially influenced
English common law.48 In such a polity, common customary law is primarily
enforced through moral pressure and community control (the word ‘moral’
deriving from the Latin word for mores or customs), so that a customary
prescriptive use-right that is neglected or abused automatically extinguishes
any moral right to it, and will be lost; this principle ensured the functioning of
a working community, and prevented the erosion of a shared-resource system
by reinforcing rights held in common for the public good.49 Sustainability
in resource management, representation and social justice thus characterised
the working landscape.50 However, the common law eventually consolidated
custom, and in so doing, dismissed locally specific practices that enabled those
landscapes to function.
What archaeological, etymological, historical and geographic research indi-
cate is that there were many ways of seeing, defining and regulating land,
even as Norman governance concentrated control hierarchically, away from
local communities. Nevertheless, the focus on an administrative rather than a
legal system meant that customary practices persisted until consolidated in the
common law of the realm.51 This was problematic, as alternative systems of
law were replaced.52 In addition, custom codified in the law neutralised the
flexibility inherent in communal land management,53 which had implications
47 Olwig, Landscape Nature and Body Politic 123.
48 Olwig, ‘Virtual Enclosure, Ecosystem Services, Landscape’s Character and the ‘Rewil-
ding’ of the Commons: the ‘Lake District’ Case’ (2016) Landscape Research 41(2):
253–264, 256. Representatives of shire courts later formed the basis for the House of
Commons.
49 Ibid.
50 Olwig, see Susan Oosthuizen, ‘Culture and Identity in the Early Medieval Fenland
Landscape’ (2016) Landscape Histor y 37(1): 5–24. https://doi.org/10.1080/01433768.
2016.1176433.
51 William Deller addresses the importance of memor y to the medieval mind, noting
that oral recollection in court testimony continued to be held in high regard after 1300,
with the introduction of written records, and traditional aspects of land use continued to
regulate land nearly a centur y later. See Deller, ‘The Transfer of Land in Medieval England
from 1246 to 1430: The Language of Acquisition’ (2020) Continuity and Change 35:
139–162, 143, 157.
52 English common law would displace the ancient Irish law, Brehon law, in the seven-
teenth century. A central factor in the conflict was ownership of land and two cases on
customary modes of succession, the Case of Tanistry (1608) Day 28; 80 ER 516 and
the Case of Gavelkind, ‘The Resolution of the Judges, Touching the Irish Custom of
Gavelkind’ (1608) Dav 49; 80 ER 535; Davies translation, effectively ended the influence
of Brehon law. See JCW Wylie, Wylie on Irish Land Law (6th edn., Bloomsbury 2020)
and Dorsett, ‘Since Time Immemorial: A Story of Common Law Jurisdiction, Native Title
and the Case of Tanistry’ at n 24.
53 Deller 156. Literacy, documentation and the law permeated the market, supple-
menting if not supplanting older, communal mentalities like giving and receiving homage,
2 PLACING PROPERTY IN THE LANDSCAPE 15
for community relations and livelihoods and by extension the working land-
scape.54 Many localised jurisdictions or specialist bodies of law, such as lex
forestae or the law of the fens, slowly disappeared under the pressure of soci-
etal change, leaving behind only those elements that had been accommodated
within the framework of the common law. Thus, while lex forestae receded,
part of manorial tenure survived, enforced by the common law as the custom
of copyhold.55
The complexities that surrounded land ensured that inheritance was chal-
lenging and land use was often contested, but this was a result of land’s
responsivity to natural resources in ways that were locally delineated, but never
private, exclusive or defined by its alienability. Landscape, therefore, contex-
tualised the meaning or property, since the concept (and the concomitant
right) would be rendered meaningless without these place-based connections.
Propertising the landscape in the modern sense of the word displaced all
other (non-proprietary) interests, as evinced by the crystallisation of the prop-
erty concept in political economy and the law. This shift from a spatial logic
inherent in the landscape to the abstract logic of property would be refined
and illustrated in the theories of Locke, Blackstone and Marx.
References
DM Braa, ‘The Great Potato Famine and the Transformation of Irish Peasant Society’
(1997) Science & Society 61(2): 193–215.
S Bright and JK Dewar (eds), Land Law: Themes and Perspectives (Oxford University
Press 1998).
W Deller, ‘The Transfer of Land in Medieval England from 1246 to 1430: The
Language of Acquisition’ (2020) Continuity and Change 35: 139–162.
S Dorsett ‘Since Time Immemorial: A Stor y of Common Law Jurisdiction, Native
Title and the Case of Tanistry’ (2002) Melbourne University Law Review 26: 32–59.
N Graham, Lawscape: Property, Environment, Law (Routledge-Cavendish 2010).
B Mitchell and FC Robinson (eds), A Guide to Old English (7th edn., Oxford 2007).
J Mumby, ‘The Descent of Family Land in Later Anglo-Saxon England’ (2011)
Historical Research 84(225): 399–415.
K Olwig, Landscape, Nature and the Body Politic: From Britain’s Renaissance to
America’s New World (University of Wisconsin Press 2002).
———, ‘Representation and Alienation in the Political Landscape’ (2005) Cultural
Geographies 12(1): 19–40.
oral pledges and the witness of the community. Where traditional language like ‘enfeoff-
ment’ continued to be used the emphasis was on the letter recording the transaction not
the face-to-face ceremonial nature of the transfer itself. Possession was foregrounded not
deference. While inheritance continued as the bedrock of land acquisition, the legal right
of ownership became a key feature of the record rather than unproblematic descent.
54 Olwig, Landscape Nature and the Body Politic 60.
55 Dorsett 41. See also David Tabachnick, ‘Two Models of Ownership: How Commons
Has Co-Existed with Private Property’ (2016) American Journal of Economics and Sociology
75(2): 488–563, 493.
16 A. BYER
———, ‘Virtual Enclosure, Ecosystem Services, Landscape’s Character and the ‘Rewil-
ding’ of the Commons: the ‘Lake District’ Case’ (2016) Landscape Research 41(2):
253–264.
S Oosthuizen, ‘Recognizing and Moving on from a Failed Paradigm: The Case of
Agricultural Landscapes in Anglo-Saxon England c. AD 400–800’ (June 2016)
Journal of Archaeological Research 24(2): 179–227.
———, ‘Culture and Identity in the Early Medieval Fenland Landscape’ (2016)
Landscape History 37(1): 5–24.
———, ‘Beyond Hierarchy: Archaeology, Common Rights and Social Identity’ (2016)
World Archaeology 48(3): 381–394.
D Seipp, ‘The Concept of Property in the Early Common Law’ (1994) Law and
History Review 12(1): 29–91.
D Tabachnick, ‘Two Models of Ownership: How Commons Has Co-Existed with
Private Property’ (2016) American Journal of Economics and Sociology 75(2): 488–
563.
P Vinogradoff, ‘Folkland’ (1893) The English Historical Review 8(29): 1–17.
JCW Wylie, Wylie on Irish Land Law (6th edn., Bloomsbury 2020).
Open Access This chapter is licensed under the terms of the Creative Commons Attri-
bution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
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source, provide a link to the Creative Commons license and indicate if changes were
made.
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intended use is not permitted by statutory regulation or exceeds the permitted use,
you will need to obtain permission directly from the copyright holder.
CHAPTER 3
Locke and the Homogenisation
of the Landscape
Abstract This chapter examines John Locke’s contributions to the property
discourse in the context of the first hallmark of property, individuality. A legal
geographical analysis of his Two Treatises is employed to show how Locke’s
focus on the individual and the labour theory of value required a reductionist
understanding of the commons and communal land use. Locke’s influences
from improvement philosophy and his role in the colonial administration of
North America are also discussed in relation to his understanding of land. The
chapter addresses the consequences of perceiving locally developed concepts
of common land as empty space or wasteland. Property’s association with indi-
vidual liberty in Anglo-American law is reinterpreted in light of its reliance on
and extraction from complex Indigenous landscapes.
Keywords Locke · Two Treatises · Labour theory of value · Commons ·
Waste · Native Americans · Indigenous landscapes
John Locke’s explanation and justification for the acquisition of property is
foundational to the common law’s treatment of land, but what is absent is
a consideration of landscape, particularly Native American landscapes, in the
development of that theory. Locke took as his starting point the concept of
self-ownership: we have a property in our own person that belongs to no one
and no one has right to it.1 It follows therefore that the labour of our body
and the work of our hands are properly ours. Property is created by both
1 John Locke, Two Treatises of Government hereafter TT (first published 1689, Hackett
Publishing Company 2016) Book II 134: ‘every man has a property in his person: this
nobody has any right to but himself. The labour of his body, and the work of his hands,
we may say is properly his’.
© The Author(s) 2023
A. Byer, Placing Property, Palgrave Socio-Legal Studies,
https://doi.org/10.1007/978-3-031-31994-5_3
17
18 A. BYER
withdrawing land from the commons and adding our labour.2 The second part
of Locke’s theory is what Jeremy Waldron calls the labour theory of value—a
person adds value to nature.3 Without labour, land and other natural resources
have no value.4 These two elements of Locke’s theory make it clear that land is
undistinguished, malleable nature lacking other distinct values (cultural, social
and ecological). For Locke, all land is homogenous nature until man creates
property by labour, thereby adding value. In making this assumption, Locke
‘devalued actual labour of commoners by asserting common property was the
same as uncultivated waste’.5
The Lockean notion of acquiring private property therefore relied on a
concept of nature that was passive and uniform, yet capable of transformation.6
He states:
God gave the world to men in common; but since he gave it them for their
benefit, and the greatest conveniences of life they were capable to draw from it,
it cannot be supposed he meant it should always remain common and uncul-
tivated. He gave it to the use of the industrious and rational, (and labor was
to be his title to it) not to the fancy or covetousness of the quarrelsome and
contentious.7
Locke was not unfamiliar with the many uses to which land had been put in
England. In his Two Treatises, he acknowledged the commons but promoted
a more individualistic conception of the right to appropriate, linked to an
individual’s ‘self-mastery’—ownership over body and one’s actions.8 This is
because, when Locke published his Two Treatises at the end of the seven-
teenth century, the medieval concept of property associated with status and
local custom was subsiding, giving way to ideas about contract and capital9
and as a result, significant enclosure of land had already begun in order to
maximise land’s p otential, or ‘improve’ it.10 The purpose was to stimulate
2 Locke, TT Book II 135: Earth is common to all mankind, but man’s labour is his
own. Whatsoever, then he removes out of the state that nature has provided, and left it
in, he has mixed his labor with, and joined to it something that is his own, and thereby
makes it his property.
See also Clarke, Principles of Property Law 44.
3 Jeremy Waldron, The Right to Private Proper ty (Clarendon Press 1988) 191–194.
4 Clarke, Principles of Property Law 45.
5 Graham, 86.
6 Ibid.
7 Locke, TT Book II, 137–138.
8 Anne C. Dowling, ‘Un-Locke-ing a Just Right Environmental Regime: Overcoming
the Three Bears of International Environmentalism—Sovereignty, Locke, and Compensa-
tion’ (2002) William & Mary Environmental Law and Policy Review 26: 891–960, 918
on Locke’s awareness of nuisance and community-oriented rights.
9 Graham 48.
10 Ibid 70.
3 LOCKE AND THE HOMOGENISATION OF THE LANDSCAPE 19
agrarian development, and so land use and ownership were married, reducing
the diversity of interests that once characterised the working landscape in the
name of expediency. The primary relationship between people and place was
now created through agrarian labour, as opposed to the labour of commoners
who engaged in open field practices pre-enclosure.11 Locke therefore regarded
enclosure practices as essential to the implementation of improvement theory
and applied this thinking to the appropriation of common property and
exclusion of communal rights in England and the Americas.12
Locke was in a unique position to address the acquisition of land in the new
English colonies in America. He was appointed secretary to the Lords Propri-
etors of Carolina in 1668, during which time debates raged as to the efficacy
of plantations and their contribution to England’s food security and economy
in the aftermath of the Glorious Revolution. Locke was greatly influenced by
the leading authorities of the day who favoured plantation agriculture.13 The
language of improvement thus accompanied the justification for settlement
and development of agricultural land in Locke’s work. These early colonies
were treated very much as appendages to England: references to socage in the
land grants of the New World wer e derived from the English tenurial system,
the law thus making no distinction between heath and prairie.14 America had
been integrated into the unitar y space of the British Empire,15 its land use no
longer reflecting the capabilities or limits of its ecosystems and peoples, but
the demands of the English economy.
This idea of vacant space was enabled by Locke’s dismissal of Native
land use, so ‘primitive’ in impact that nature remained virtually unspoiled in
the Americas. Locke never contemplated land uses that did not correspond
to legally defined property, as his theor y depended on the nature/culture
dichotomy of propertied, civilised communities versus uncivilised communi-
ties on open land. He thus conflated the commons with open access resources,
which meant that Native Americans were ‘disqualified…as proprietors’.16
There was already precedent for this type of treatment of open land in the
form of English enclosure. This practice was extended to the New World and
11 Ibid 47.
12 Locke, TT Book II 137: As Much Land as a Man Tills, Plants, Improves, Cultivates,
and can use the Product of, so much is his Property. He by his Labour does, as it were,
inclose it from the Common. See also Barbara Arneil, ‘Trade, Plantations, and Property:
John Locke and the Economic Defense of Colonialism’ (1994) Journal of the History of
Ideas 55(4): 591–609, 602; Graham 55.
13 Arneil 597.
14 The Second Charter of Virginia; May 23, 1609, The Avalon Project, http://avalon.
law.yale.edu/17th_century/va02.asp accessed 5 October 2020.
15 Arneil 600.
16 Allan Greer, ‘Commons and Enclosure in the Colonization of North America’ (2012)
The American Historical Review 117(2): 365–386, 368.
20 A. BYER
can therefore be applied to Indigenous peoples evicted from their communal
territories and homelands.17
Historically, enclosure, or the gradual ending of open-field farming in
England and Wales, was accomplished through the fencing, parcelling
and titling of these communal spaces.18 Displaced commoners were rarely
compensated; their villages were dismantled, so they subsequently sought
labour in rapidly industrialising urban centres, succumbed to ‘vagrancy’ or
were transported to the colonies. As common lands were consolidated for
commercial ventures as well as luxury estate parks, the landed class expanded
in wealth and power, a reflection of the rise of agrarian and later industrial
capitalism.
In delineating property rights, Locke envisaged such common land as waste,
disregarding its original meaning. Collectively owned land in the surrounding
area beyond local croplands (be it moor, mountain, marsh or forest) was called
‘the waste’ in England, and it was multifunctional: it served as rough pasture
for livestock, or a source for firewood or peat for fuel, provided herbs for local
medicine, rushes for basketry or thatching, timber for construction and so
on.19 Waste was subject to a plethora of rules and customs governing access to
these resources, often locally, regionally or nationally derived given the quality
or significance of the resource. Locke dismissed these complex and creative
land management practices and uses associated with waste. Waste was rede-
fined as idle land, land in its primitive, uncultivated, underutilised state and
the (global) commons. Locke himself describes, ‘land that is left wholly to
nature, that has no improvement of pasturage, tillage, or planting, is called,
as indeed it is, waste; and we shall find the benefit of it amount to little more
than nothing.20
In fact, waste is conflated with common land:
To which let me add, that he who appropriates land to himself by his labor,
does not lessen, but increases the common stock of mankind: for the provi-
sions serving to the support of human life, produced by one acre of enclosed
and cultivated land, are (to speak much within compass) ten times more than
those which are yielded by an acre of land of an equal richness lying waste in
common.21
Given this background, enclosure is therefore necessary and positive:
17 Kenneth Olwig refers to this as ‘virtual’ enclosure’ the spatial consolidation of land,
reducing its biodiversity and land uses. See Olwig, ‘Virtual Enclosure’ 253.
18 Charles Geisler, ‘Disowned by the Ownership Society: How Native Americans Lost
Their Land’ (2014) Rural Sociology 79(1): 56–78. https://doi.org/10.1111/ruso.12028.
19 Greer 369.
20 Locke, TT Book II, 143.
21 Ibid 140 (emphasis added).
3 LOCKE AND THE HOMOGENISATION OF THE LANDSCAPE 21
And therefore he that encloses land, and has a greater plenty of the conveniences
of life from ten acres, than he could have from a hundred left to nature, may
truly be said to give ninety acres to mankind: for his labor now supplies him
with provisions out of ten acres, which were but the pr oduct of a hundred lying
in common.22
The implication is that, God gives man land in common, as uncultivated
nature.23 Superior usage of land is generated when man removes it from the
common state through his labour.24 Locke understood that commons were
managed and worked by communities and provided the foundations of the
peasant economy in England. This included other values, social, cultural and
ecological, but Locke would not accord these any priority. Dowling notes that
while a Lockean approach to land could conceive of ‘sentimental’ attachments,
land’s primary value is its exchange value: the possibility of producing value
for use in exchange.25 Locke deemed it naturally unjust for one to amass too
much land; thus, the real source of wealth derived from land is the owner’s
opportunity to exchange the perishable items land produces for mor e durable
forms of wealth, such as money.26 Where land is located therefore does not
matter, once it supplies this value. Such uncultivated and passive nature could
be transposed anywhere, even to America, home of Locke’s ‘wild Indian’, and
easily recognised as abhorrent to Locke given the squandered potential for
generating wealth:
The fruit, or venison, which nourishes the wild Indian, who knows no enclosure,
and is still a tenant in common, must be his, and so his, i.e. a part of him, that
another can no longer have any right to it, before it can do him any good for
the support of his life.27
Locke links together in consistently negative contexts the words ‘com-
mons’, ‘waste’, ‘commoner’, ‘Indian’, ‘America’ and ‘poverty’.28 But
22 Ibid.
23 Locke, TT Book II, 134: And nobody has originally a private dominion, exclusive of
the rest of mankind, in any of them, as they are thus in their natural state: yet being given
for the use of men, there must of necessity be a means to appropriate them some way or
other, before they can be of any use, or at all beneficial to any particular man.
24 Locke, TT Book II 135: It being by him removed from the common state nature
has placed it in, it has by this labour something annexed to it, that excludes the common
right of other men: for this labor being the unquestionable property of the labourer, no
man but he can have a right to what that is once joined to, at least where there is enough,
and as good, left in common for others.
25 Dowling at fn 8.
26 Dowling 917. See also Zev Trachtenberg, ‘The Takings Clause and the Meanings of
Land’ in Andrew Light and Jonathan M. Smith (eds), Space, Place and Environmental
Ethics (1997) 63, 73.
27 Locke, TT Book II 134, emphasis added.
28 Greer 367.
22 A. BYER
Allan Greer highlights that the commons might be thought of both as a
place—the village pasture—and as a set of access rights, such as grazing; in
America, this portion of the commons located in the tillage zone of a given
community might be designated the ‘inner commons’, interacting with the
outer commons or outer zone beyond the village where local people gath-
ered firewood, wild herbs and berries and other resources.29 Greer notes that
this was not the universal commons, but rather territory and resources that
belonged to a particular person, lineage or community, roughly analogous to
the moors, mountains and forests of Europe: common property, but neither
unregulated nor open to everyone.30
Locke’s application of the ‘wild Indian’ stereotype fails to address the
reality of Native land use and conceptualisations of property in pre-Columbian
America. Native Americans were hunter-gatherers, as well as dedicated farmers
living in diverse environments across the continent.31 Because land was not a
commodity as Locke defined it, but the bulwark of Indian identity, exchanging
it for currency was antithetical to their way of life.32 Greer observes that land-
holding and land interests across pre-Columbian America varied from one
environmental setting and subsistence regime to the next, shaped in some
areas by legal codes and customs, as well as by the factors cited by Locke:
population density, government and commerce.33
Agriculture in pre-Columbian America was primarily crop-based, and in the
literal sense, land was not enclosed because animal husbandry was limited.34
However, land was managed, as individual families or lineages did have partic-
ular plots of their own, subject to varying degrees of community control.
Within cities lay villages with intensively cultivated fields reflecting a spec-
trum of interests: they could be owned by particular households, temples, local
chiefs or a particular class of urban nobles and worked by the community.35
Hunter-gatherer tenure developed according to function, such as hunting,
fishing and berrying, which in turn shaped the way space was understood and
defined.36 Various groups lay claim to overlapping areas for distinct foraging
purposes, depending on the resource or the ecosystem. The same may be said
for shared waterways. It was possible for people of different nations to share
hunting grounds; however, outsiders who hunted without authorisation could
29 Ibid 369.
30 Greer 370.
31 Geisler 59.
32 Ibid 61.
33 Greer 369.
34 Ibid.
35 Ibid.
36 Ibid 371.
3 LOCKE AND THE HOMOGENISATION OF THE LANDSCAPE 23
be subject to violent punitive action.37 This indicates that various Indige-
nous peoples were not passive actors, but managed and manipulated their
environments through a wide variety of land use arrangements (privately or
communally owned, collectively managed) subject to a range of use rights.38
The law in colonial America nevertheless relies on the passive, primitive
Indian stereotype in relation to land use. It has been suggested that Native
Americans willingly sold land, and evidence of market transfers challenges the
conquest narrative of the New World, since Europeans bought rather than
seized land.39 However, the loss of land through market mechanisms does not
mean that legal land transfers were not coercive, given that Native Americans
were not recognised as capable of owning the land they were supposed to
be freely selling.40 Legislation was passed to this effect, relying on ‘benevolent
government stewardship’ to facilitate land transfers that ultimately dispossessed
Native peoples of their land, though this was deemed impartial where the letter
of the law was concerned.41
As Arneil notes, Locke’s claim that the state of nature could still be found
in America was reinforced by his deliberate and repeated use of America
and its natives in his property chapter.42 Native landscapes thus played an
important role in the development of Locke’s theory of property, as their
enclosure enabled the ‘property as individual ownership’ model to flourish.
Locke removes the locally distinct character of landscapes and highlights
instead the distinctiveness of the rational individual in withdrawing land from
the homogenous uncivilised wilderness, adding value through labour to create
private property. This theory relies on an uncultivated nature that is open
access, in order to emphasise the role of the individual, at the expense of
landscape.
The notion o f a universal commons completely open to all—Locke’s ‘Amer-
ica’—existed mainly in the imperial imagination. To this pre-owned continent
came Spanish, English and French colonists, occupying space, appropriating
resources, and developing tenure practices to suit their purposes.43 Native
peoples were dispossessed in a variety of ways, as settlers claimed land as indi-
vidual families or as a community sharing resources; these practices excluded
37 Ibid.
38 Ibid 372.
39 Geisler 58.
40 Ibid.
41 Geisler 61: A series of Non-Intercourse Acts between 1790 and 1834 disallowed land
conveyances between Indians and non-Indians if not sanctioned by the federal government.
Enclosure became official federal policy during the Andrew Jackson presidency, beginning
with forced removal of Native peoples from the Southeastern United States to the West.
42 Arneil notes that of the 22 references listed by Peter Laslett concerning America or
Indians, 10 occur in the 26 paragraphs of the chapter on property—see Arneil 67.
43 Greer 372.
24 A. BYER
Native peoples, changing the landscape and affecting their livelihoods.44 John
Locke’s misdescription of colonial property formation as the enclosure of a
great universal commons ser ved both to erase Native property in land at the
outset and associate colonial appropriation with ‘improvement’, the latter to
be understood both in its specialised agricultural sense and its more general
meaning.45 Diverse working Native landscapes became open-access resources,
to be absorbed by European settler interests to secure economic development.
Locke’s theories about property facilitated the appropriation and consoli-
dation of land in the New World. As Indigenous legal scholars have observed,
abstract private property rights imposed a culturally exclusive vision of land
that aligned with post-medieval England, and was completely alien to pre-
Columbian America.46 This severed the relationship between local Indigenous
use of the natural environment and democratic institutions, and the loss
of local knowledge and expertise resulted in the absence of Indigenous
contributions to the formation of environmentally and socially benign land
governance.47 The law’s spatial severance of North America’s pre-existing
ecosystems and societies continues to inform the American legal system and
fails to safeguard Indigenous interests today.48
As Roxanne Dunbar-Ortiz writes:
… [H]ad North America been a wilderness, undeveloped, without roads, and
uncultivated, it might still be so, for the European colonists could not have
survived. They appropriated what had already been created by Indigenous
civilizations. They stole already cultivated farmland and the corn, vegetables,
tobacco, and other crops domesticated over centuries, took control of the deer
parks that had been cleared and maintained by Indigenous communities, used
existing roads and water routes in order to move armies to conquer, and relied
on captured Indigenous people to identify the locations of water, oyster beds,
and medicinal herbs.49
44 Ibid 372, and at 379.
45 Ibid 385.
46 John Borrows, ‘Living Between Water and Rocks: First Nations, Environmental Plan-
ning and Democracy’ (1997) University of Toronto Law Journal 47(4): 417–468, 431.
For the Australian Aboriginal context, see Aileen Moreton-Robinson, The White Possessive:
Property, Power, and Indigenous Sovereignty (University of Minnesota Press 2015); Irene
Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge,
Abingdon, 2015).
47 Borrows 431.
48 Attention has been called to the importance of these ancient practices as they find
expression in modern Native communities today, which could be relevant for contemporary
land claims and resource use rights. See Victor Thompson and others, ‘The Early Mate-
rialization of Democratic Institutions among the Ancestral Muskogean of the American
Southeast’ (2022) American Antiquity 1: 704–723.
49 Dunbar-Ortiz, An Indigenous Peoples’ Histor y of the United States (Beacon Press
2014) 46.
3 LOCKE AND THE HOMOGENISATION OF THE LANDSCAPE 25
In this useful catalogue of the various interests and relations Indigenous
peoples had developed with land, it is clear why landscapes had to be collapsed
in order to recreate property. The interchangeable commons, vacuous space or
wilderness, was the raw material to be mixed with labour, the clay of property,
and the primitive ‘Indian’, at one with nature, was therefore unpropertised.
The common law recognises those who would separate property from ‘the
great commons of unowned things’50 and Locke’s association of common
land with open-access resources, and conflation of waste with idleness, lay the
groundwork for advancing an individual’s private property rights in land in
Anglo-American land law.
References
B Arneil, ‘Trade, Plantations, and Property: John Locke and the Economic Defense
of Colonialism’ (1994) Journal of the History of Ideas 55(4): 591–609.
J Borrows, ‘Living Between Water and Rocks: First Nations, Environmental Planning
and Democracy’ (1997) University of Toronto Law Journal 47(4): 417–468.
AClarke, Principles of Proper ty Law (Cambridge University Press 2020).
AC Dowling, ‘Un-Locke-ing a Just Right Environmental Regime: Overcoming the
Three Bears of International Environmentalism—Sovereignty, Locke, and Compen-
sation’ (2002) William & Mary Environmental Law and Policy Review 26:
891–960.
R Dunbar-Ortiz, An Indigenous Peoples’ History of the United States (Beacon Press
2014).
C Geisler, ‘Disowned by the Ownership Society: How Native Americans Lost Their
Land’ (2014) Rural Sociology 79(1): 56–78.
N Graham, Lawscape: Property, Environment, Law (Routledge-Cavendish 2010).
A Greer, ‘Commons and Enclosure in the Colonization of North America’ (2012)
The American Historical Review 117(2): 365–386.
JLocke Two Treatises of Government (first published 1689, Hackett Publishing
Company 2016).
A Moreton-Robinson, The White Possessive: Proper ty, Power, and Indigenous Sovereignty
(University of Minnesota Press 2015).
K Olwig ‘Virtual Enclosure, Ecosystem Services, Landscape’s Character and the
‘Rewilding’ of the Commons: The ‘Lake District’ Case’ (2016) Landscape Research
41(2): 253–264.
C Rose, ‘Possession as the Origin of Property’ (1985) The University of Chicago Law
Review 52(1): 73–86.
VD Thompson, J Holland-Lulewicz, RA Butler, TW Hunt, L Wendt, J Wettstaed,
M Williams et al, ‘The Early Materialization of Democratic Institutions among the
Ancestral Muskogean of the American Southeast’ (2022) American Antiquity 87(1):
704–723.
Z Trachtenberg, ‘The Takings Clause and the Meanings of Land’ in Andrew Light
and Jonathan M. Smith (eds), Space, Place and Environmental Ethics (Rowman &
Littlefield 1997).
50 Carol Rose, ‘Possession as the Origin of Property’ (1985) The University of Chicago
Law Review 52(1): 73–86, 88.
26 A. BYER
J Waldron, The Right to Private Property (Clarendon Press 1988).
I Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Rout-
ledge, Abingdon 2015).
Open Access This chapter is licensed under the terms of the Creative Commons Attri-
bution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes were
made.
The images or other third party material in this chapter are included in the chapter’s
Creative Commons license, unless indicated otherwise in a credit line to the mate-
rial. If material is not included in the chapter’s Creative Commons license and your
intended use is not permitted by statutory regulation or exceeds the permitted use,
you will need to obtain permission directly from the copyright holder.
CHAPTER 4
Blackstone and the Externalisation of Landscape
Abstract The idea of absolutist ownership in land, introduced in William
Blackstone’s influential work, Commentaries on the Laws of England,isthe
subject of this chapter. Blackstone’s reframing of intrinsic aspects of the
landscape as external encumbrances burdening the individual landowner is
discussed as the watershed moment that terminated property’s social func-
tion. Blackstone applied the generic feudal pyramid of tenures to England,
without considering the lived-in experiences of local communities and their
ancient way of life that varied and complicated feudal practices. The chapter
examines the role of the new landowning class in Parliament, which passed
the Enclosure Acts to enclose common land as private property, thereby using
the law to dismantle common rights and functioning local communities, and
legitimise exclusion as a feature of property.
Keywords Blackstone · Exclusion · Absolutist model · Tenures · Feudal
pyramid · Commons · Enclosure Acts
While Locke’s labour theory of value provided the pretext for acquiring prop-
erty by separating it from common land, Sir William Blackstone emphasised
the exclusionary character of property, in which rights are consolidated in
a single landowner, to the exclusion of all others.1 This expression of the
1 Clarke, ‘Principles of Property’ 185; Jane B Baron, ‘Rescuing the Bundle-of-Rights
Metaphor in Property Law’ (2013) University of Cincinnati Law Review 82: 57–102.
© The Author(s) 2023
A. Byer, Placing Property, Palgrave Socio-Legal Studies,
https://doi.org/10.1007/978-3-031-31994-5_4
27
28 A. BYER
ideology of exclusion2 has remained the defining feature of Blackstonian prop-
erty for about 250 years, though it has since been modified.3 It is best captured
in Blackstone’s oft-quoted passage in the ‘Commentaries on the Laws of
England’4 :
There is nothing which so generally strikes the imagination, and engages the
affections of mankind, as the right of property; or that sole and despotic
dominion which one man claims and exercises over the external things of the
world, in total exclusion of the right of any other individual in the universe.5
Although it is questionable whether Blackstone himself believed in property
as an absolute right to exclude,6 the Blackstonian conception is entrenched as
the dominant Western property ideology, inclusive of civil law jurisdictions.7
What is relevant is that the right to exclude means that one has property;
conversely, to the extent that one does not have exclusion rights, one does
not have property.8 In this definition, property is so absolute as to permit
no infringement, not even for the common good.9 According to Blackstone,
absolute rights are those rights that every man is entitled to enjoy, not because
of his membership in society, but by virtue of his individuality.10 Property was
an absolute right vested in the individual by the immutable law of nature, inde-
pendent of societal recognition.11 Private property was a key development in
mankind’s advancement, as individuals emerged from the global commons to
establish themselves in permanent homes and grow crops. Occupancy or use
rights thus ripened into permanent and exclusive dominion over the thing—
private pr operty.12 It was only in very limited circumstances that society
2 Benjamin Davy, ‘“Dehumanized Housing” and the Ideology of Property as a Social
Function’ (2020) Planning Theory 19(1): 38–58, 38; Thomas W Merrill, ‘Property and
the Right to Exclude’ (1998) Nebraska Law Review 77: 730–755, 734.
3 Clarke 186.
4 William Blackstone, Commentaries on the Laws of England (hereafter cited as Bl
Comm.) (Oxford 1765–1769).
5 2BlComm2.
6 David B. Schorr, ‘How Blackstone Became a Blackstonian’ (2009) Theoretical Inquiries
in Law 10: 103–126, 104; Albert W. Alschuler, ‘Rediscovering Blackstone’ (1996) Univer-
sity of Pennsylvania Law Review 45(1): 1–56; Carol M. Rose, ‘Canons of Property Talk,
or, Blackstone’s Anxiety’ (1998) Yal e L a w Journa l 108: 601–633.
7 See, for example, Article 544 of the Code Napoléon. Davy 41.
8 Merrill 753.
9 Vandevelde 332.
10 1 Bl Comm 122–124.
11 Robert P. Burns, ‘Blackstone’s Theor y of the Absolute Rights of Property’ (1985)
University of Cincinnati Law Review 54: 67–87.
12 Burns 75; Alschuler 32.
4 BLACKSTONE AND THE EXTERNALISATION OF LANDSCAPE 29
could constrain this right in order to promote other objectives.13 Blackstone
underscores the primacy of the individual right of property by stating that:
So great moreover is the regard of the law for private property, that it will not
authorize the least violation of it; no, not even for the general good of the
whole community. If a new road, for instance, were to be made through the
grounds of a private person, it might perhaps be extensively beneficial to the
public; but the law permits no man, or set of men to do this without consent
of the owner of the land.14
Blackstone therefore privileges ownership above other interests in land. In
spite of the recognition of those interests, it is in very rare circumstances that
private property can be imposed upon and Parliament will restrict property
rights to promote the public good.15 In such a case, Parliament can ‘oblige
the owner to alienate his possessions for a reasonable price; and even this is
an exertion of powers, which the legislature indulges with caution, and which
nothing but the legislature can perform’.16 As an ardent supporter of Parlia-
ment,17 Blackstone was very concerned with the arbitrary and corrupt use of
this Parliamentary power to deprive landowners of their land, and noted such
decisions would not be binding.18
There were particular reasons for this stance. At the time of Blackstone’s
writing, the legislature comprised landed members who had benefited from
the agricultural revolution, and specifically enacted laws to deprive commoners
of their land; it is unlikely that they would have tolerated any encroachment
on their newly enclosed lands, and therefore, to oppose enclosure, especially
after 1730, was illegal.19 The intersection of land ownership with law-making
powers20 in Blackstone’s day thus cannot be overlooked when considering his
explication of the foundations of private property, and provides context for his
defence of landowners.
Blackstone was determined to secure the common law’s position as the law
of the English and contrasted what he deemed ‘foreign’ Norman law with the
endogenous common law. To emphasise the ‘oppressiveness’ of Norman law,
he focused on the body of law it had displaced, Saxon law and its perceived
13 Alschuler 34.
14 1 Bl Comm 139.
15 Alschuler 4.
16 1 Bl Comm 139.
17 Dennis R Nolan, ‘Sir William Blackstone and the New American Republic: A Study
of Intellectual Impact’ (1976) New York University Law Review 51: 731–768, 735.
18 Alschuler 30.
19 Graham 71.
20 Ibid.
30 A. BYER
individual freedoms.21 Embedding this view involved recasting the lived-in
values and experiences of commoners in the landscape as constraints upon the
land, introduced through the Norman feudal system of tenure.22 By the eigh-
teenth century, the various lay tenures could be reduced to two kinds: the free
tenure in common (socage) and the base tenure by a copy of court roll.23
Free socage lands were those held directly from the king, having supplanted
a previously complex system of military tenures.24 Blackstone discussed the
etymology of ‘socage’, which he chose to derive from ‘soc’, a Saxon word
signifying ‘liberty’ or ‘privilege’. He favoured this definition to that of the
common lawyers, who generally derived it from the Latin soca meaning
‘plough’, thereby connecting the tenure with services of husbandry. Black-
stone concluded that the socage tenures were the relics of Saxon liberty,25 as
there had been no pre-existing Saxon feudal law.26
While free socage tenure was conditioned upon rendering services to the
king, copyhold tenure was conditioned upon the will of the lord.27 The
copyholder in Blackstone’s day could however not be deprived of his tenure
arbitrarily. Rather, his rights were ‘fixed and ascertained by the custom to
be the same and no other, that has time out of mind been exercised and
declared by his ancestors’.28 The freehold remained solely in the lord, ‘who
hath granted out the use and occupation, but not the corporal seisin or true
legal possession, of certain parcels thereof, to these his customary tenants
at will’.29 This provided Blackstone the pretext for stripping away the social
dimensions of landscape, by re-envisaging non-ownership interests as burdens
on the land.
To emphasise the imposition of these ‘feudal incidents’, Blackstone
describes a feudal pyramid of obligations that relies on problematic historic
sources from English medieval property law, complicating the identification
and classification of property as it relates to land. As Susan Reynolds notes,
‘tenure’ is an anachronistic and misleading term to apply to medieval English
property, because it arose from doubtful translations and misunderstandings
of medieval law that originated in the seventeenth century.30 The ‘feudal
tenure’ of Anglophone historians is a blend of scholars’ interpretation of
21 2 Bl Comm 51–52; John Cairns, ‘Blackstone, the Ancient Constitution and the Feudal
Law’ (1985) The Historical Journal 28(3): 711–717, 717.
22 Burns 79.
23 2 Bl Comm 101.
24 Ibid 78–81; Burns 80.
25 Cairns 716; 2 Bl Comm 81.
26 Cairns 715.
27 2 Bl Comm 147.
28 Ibid.
29 Ibid 148.
30 Susan Reynolds, ‘Tenure and Property in Medieval England’ (2015) Historical
Research 88(242): 563–576, 563.
4 BLACKSTONE AND THE EXTERNALISATION OF LANDSCAPE 31
Thomas Littleton’s fifteenth-century Tenures, with sixteenth-century French
scholars’ version of late medieval academic law that they had derived from
the Consuetudines Feudorum or Libri Feudorum, compiled in twelfth-century
Italy.31
Blackstone elevated his theory to a doctrine of tenures, meaning that ‘all
the land in the kingdom is supposed to be holden, mediately or immediately,
of the king.’32 But the Normans were concerned with administration and
revenue-raising, rather than immediately imposing a system of law—it would
have been easier to add to the pre-existing obligations of property-holders than
to diminish their traditional rights. Special emergencies may have r equired
special demands that eventually mellowed into custom—in the aftermath of
the conquest, military s er vice was probably an immediate priority, followed by
other ‘feudal incidents’. Land being subject to royal jurisdiction did not neces-
sarily indicate subordination or less than normal free rights of property, and
yet, tenure was generally applied to all forms of medieval English property,
without a full analysis of its rights and obligations.33
This conflation of property and jurisdiction as an essential characteristic of
feudal law comes from historians rather than medieval law itself.34 In fact,
by the thirteenth century, the hierarchy of military service and ‘incidents’
appeared more as a social hierarchy of different kinds of property than the
hierarchy of jurisdiction and government that developed elsewhere. As the
legal profession developed in thirteenth-century England, streamlined termi-
nology fused Latin and French concepts—anyone who held land, with all its
attendant rights and obligations, was correspondingly called a tenant, absent
any of the connotations of fewer rights and more obligations that are implied
in the modern use of the word, and probably due to consensus among judges
and advocates.35 Courts began to ignore the lower layers of rights that they
had once accepted, so that they increasingly favoured lords of manors at the
expense of copyholders.36 In the sixteenth century, as a result of their reading,
English historians and antiquaries now began to employ a new vocabulary
that had not been current in English common law but rather had passed into
professional French law from academic French works.37
English academics appeared to have tr eated French law works as merely
recording the law as it developed, but the law of fiefs that originated in the
Lombard Libri Feudorum was not analogous to English common law and the
31 Reynolds 564.
32 2 Bl Comm 59.
33 Reynolds 569–570.
34 Ibid 567–568.
35 Ibid 568.
36 EP Thompson, Customs in Common (The New Press 1991) 114–164; AW Brian
Simpson, A History of the Land Law (Clarendon Press 1986) 108; Reynolds 570.
37 Reynolds 571.
32 A. BYER
local variation in customary law.38 England’s seemingly perfect feudal pyramid
generated new layers of proper ty rights, while in fact obscuring so many differ-
ences: the difference between customary law, professional law and academic
law, as well as that between English common law and the professional law
that developed across the channel.39 Blackstone’s reliance on these texts and
their interpretations, combined with the Commentaries’ accessible and elegant
style, was responsible for this diffusion of the doctrine of tenure as the basis
of English property law.40
The reality of the pre-enclosure commons overturns Blackstone’s generic
feudal pyramid. As Graham notes, the property relationship held especially
by commoners pre-enclosure was closer to the original sense of the word
property, refer ring to identification with and from place, rather than owner-
ship over it.41 Place specificity generated a subjective relationship that bound
commoners in a mutually dependent relationship with the land; as members of
a peasant economy based on open-field agriculture, they shared a heritage and
identity and so land was not alienable or exclusive because its value was not
purely economic.42 That shared heritage reflected continuity with the past,
and was derived from generations of occupancy, or the habitus of landscape,
articulated and reinforced in the laws and rights of the commons.43
The original land laws of peasant economy were diverse rather than
uniform; customs wer e locally developed, and relevant because they wer e sensi-
tive to varying local geographic conditions.44 Providing highly specific limits
or conditions to rights of access, use and enjoyment of land and other local
resources had been an early form of natural resource management, observed
over centuries.45 The pre-enclosure local representative councils, and the
corpus of customary law they established, shaped the land, thereby forming
a ‘substantive landscape’ or polity, in the legal sense of ‘creating and defining
rights and duties’.46 Customary law was thus the formalisation and ritualisa-
tion of habits and practices, reinterpreted as required over time, and forming
a bank of cultural memory and common identity.47
38 Ibid 575.
39 Ibid 576.
40 Reynolds notes that 50 years after the Law of Property Act, law students were still
taught that a feudal structure had been imposed in England during the Norman conquest,
with the king at the apex and land held either ‘directly of the King’ or ‘of’ others under
him. See Reynolds 574.
41 Graham 74–75.
42 JM Neeson, Commoners: Common Right, Enclosure and Social Change in England,
1700–1820 (Cambridge University Press 1993) 321 and 3–5.
43 Neeson 297–298.
44 Graham 53.
45 Ibid.
46 Olwig, ‘Virtual Enclosure’ 256.
47 Olwig, Landscape, Nature and the Body Politic 58 and at 60.
4 BLACKSTONE AND THE EXTERNALISATION OF LANDSCAPE 33
In Blackstone’s time, the suppression of these customary rights of common
people through the Enclosure Acts was not the result of an intrinsic failure of
land management methods, or diminishing fertility of these lands, or even the
collapse of these communities, but simply because the land could be acquired
for ‘improvement,’48 which enriched the landed class.49 Enclosure occurred
regardless of the location of these lands, and the law minimised the extent of
common rights in order to limit compensation due to commoners.50 Common
rights have never recovered their depth and complexity since. Private property
was thus not the inevitable outcome of a linear process in which a progressive
society eventually replaced an inefficient common property model; it was a
deliberate policy choice that ignored extant cultural perspectives on land and
eliminated institutions for managing land ef ficiently as the basis of community
life.
As David Tabachnick observes, ‘the enclosing of the commons in England
was not merely a physical process of putting up fences but also a conceptual
process that created a new legal, economic, and sociological reality’. Black-
stone was the foremost contributor to this new legal reality. By importing
French sources, rather than examining the lived in experiences of English
commoners, who for centuries had interacted with Saxon then Norman
systems, adapting to maintain their communities, Blackstone presented a
model of property that was clear and simple, but ahistoric and aspatial. In order
to do so, Blackstone developed a history of land law that freed the landowner
from the ‘weight’ of myriad obligations that had characterised land during
the feudal period. Now, ownership is absolutist, with the ability to exclude,
making inhabitants foreigners in their own community, without representation
and their way of life undesirable and even lawless.
Through this filter of hyper-individuality, ancient communal rights and
practices that had arisen during the Anglo-Saxon and later Norman periods,
48 Tabachnick notes that Lord Longborough, who ruled in the Houghton case
upholding Lord Cornwallis’ right to enclose lands and extinguish common property rights,
was a devotee of improvement theory and mischaracterised common property, in this case,
the limited and communally regulated right of parish members to glean, as unregulated
open access, or as he says, ‘universal promiscuous enjoyment’. In this way, he could strip
away common rights overlapping private ownership, which had since time immemorial
defined English property in land. See Tabachnick 497–498 and Steel v Houghton 1 BHH
51, 126 ER 32.
49 Graham 54. Tabachnick 499: The destruction of common rights involved the destruc-
tion of the regulatory rules and democratic rule-making process of the manorial courts or
village meetings that played the role of manorial courts where several manors existed in
one parish. See also Neeson 111, footnote 2.
50 The common law, over time, restricted recognition at common law of customary
rights to very specific rights in land. According to the ruling in Gateward’s Case, 6 Co.
Rep. 59b, 60b, 77 Eng. Rep. 344, 345 (K.B. 1607), when land was enclosed, only those
cotters who could present documentary evidence of their common rights, as opposed to
those with unwritten customary rights, had a right to be consulted and to refuse consent,
and only the former could get compensation for the loss of common rights. See Tabachnick
497.
34 A. BYER
enabling peasants and commoners to become self-sufficient and indepen-
dent were now interpreted as dependence on the landowner’s goodwill.51
Protecting individual landowners’ rights as justification for enclosure destroyed
community governance of land, and with it, alternative perspectives that had
defined the landscape. Stressing legal personal ownership placed the focus on
acquisition rather than community approval in the use and management of
land.52 Property was no longer linked to landscape but required by definition
to exclude the social elements of the landscape in the name of liberty. Though
Saxon conceptualisations of land as earlier noted are cognate to the landscape,
Blackstone interpreted Saxon liberty as an individual quality, not in terms of
self-sufficiency for communities.
Blackstone’s focus on individual ownership inverted property, from its
associations with mutuality to one that was freed from social obligations
to land—Blackstone does not expect landowners to fulfil a duty prior to
confirming their ‘sole and despotic dominion’.53 He externalised the land-
scape by treating non-ownership interests as burdens, embellishments and even
privileges awarded at the landowner’s discretion. Ownership was therefore
hierarchised in a way it had never been before. Excluding these connections
with the land erased its distinctiveness, since the location, features and limits
of the land would no longer define relations with it. Where communal uses
were allowed, this was a concession on the part of the private proper ty owner,
not a right exercised by communities based on their mutual relationship with
the landscape.
Blackstone’s idealised tenurial system served to mask the complex cultural
perspectives towards land following the conquest. For Blackstone, owner-
ship, previously non-exclusionary and qualified by a range of interests, became
absolute. This anti-social conceptualisation of land would have sounded the
death knell for landscape, by eliminating communal land values from prop-
erty. This has contributed to property’s current paradoxical character as
an anti-social institution that nevertheless structures human relationships in
society.54 Although Blackstone associated property with things, the predomi-
nant character of ownership enabled the abstraction of the concept. Bentham,
Blackstone’s former student and among his fiercest critics, eliminates land
altogether in his positivisation of property theory. By the beginning of the
twentieth century, the Blackstonian conception of property had been replaced
by Wesley Newcomb Hohfeld’s dephysicalised property model, in which prop-
erty was defined by abstract relations between people, rather than a tangible
51 Jesse Goldstein, ‘Terra Economica: Waste and the Production of Enclosed Nature’
(2012) Antipode 45(2): 357–375, 371.
52 Deller 151.
53 Davy 52.
54 Joseph William Singer and Jack M. Beermann ‘The Social Origins of pr operty’ (July
1993) Canadian Journal of Law and Jurisprudence VI(2): 217–248, 228.
4 BLACKSTONE AND THE EXTERNALISATION OF LANDSCAPE 35
object.55 Property law, therefore, continued to diverge from place-determined
ideas about land in the development of the common law.
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36 A. BYER
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which permits use, sharing, adaptation, distribution and reproduction in any medium
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made.
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rial. If material is not included in the chapter’s Creative Commons license and your
intended use is not permitted by statutory regulation or exceeds the permitted use,
you will need to obtain permission directly from the copyright holder.
CHAPTER 5
Marx and the Dephysicalisation
of the Landscape
Abstract This chapter relies on Marx’s later critiques of capitalism (which
focused on the relationship between property rights and nature) to explain
the final hallmark of property: alienability. Using Marx’s metabolic rift
theory, the chapter considers how the abstraction of land was achieved
through the separation of culture and nature, which created distance between
people and their embedded relations with land. This is illustrated with
examples from rundale communities in Ireland and the slave colonies
of the Caribbean. Converting landscapes to plantation monoculture to
maximise exploitation destabilised the landscape dynamic, facilitating displace-
ment, oppression, and enslavement, and socio-ecological crises such as the
Famine. The chapter thus draws attention to the spatial consequences of land’s
dephysicalisation in property law.
Keywords Metabolic rift · Capitalism · Alienation · Rundale · Slavery ·
Plantation · Ireland · Caribbean
The conceptual shift towards dephysicalised property as connectivity with land
was lost forms part of Karl Marx’s critique of capitalism. Marx’s analysis of the
negative impact of property rights on human communities through the rise of
capitalism is contained in his major unfinished work Capital.1 Saito notes that
Marx’s critique of capitalism became increasingly ecological as he emphasised
the fundamental contradiction of capitalism—that its profitability relied on the
1 KMarx, Capital (vol. 1, Penguin 1976).
© The Author(s) 2023
A. Byer, Placing Property, Palgrave Socio-Legal Studies,
https://doi.org/10.1007/978-3-031-31994-5_5
37
38 A. BYER
destruction of the source of its wealth (natural resources).2 This is achieved
through the disruption of the link between man and nature, or metabolic rift,
explained thus:
Capitalist production… disturbs the metabolic interaction between man and the
earth… All pr ogress in capitalist agriculture is a progress in the art, not only
of robbing the worker, but of robbing the soil; all progress in increasing the
fertility of the soil for a given time is progress towards ruining the more long-
lasting sources of that fertility… Capitalist production, therefore, only develops
the technique and the degree of combination of the social process of production
by simultaneously undermining the original sources of all wealth—the soil and
the worker.3
The idea of an unalienated relationship between people and nature thus
underscores Marx’s philosophy of property and critique of capitalism.4 A
lived-in nature aligns with the landscape, though Marx never used this term
and his work predates cultural geography. He did however see man as part
of nature.5 Alienation was originally defined as alienation from community,
and Marx deployed the concept in the sense of the effect of estrangement of
humanity from their existence within nature as a result of civilisation, or capi-
talist society.6 Property was not land, but the ownership of it, and the alienable
possession of land led to the ‘objectifying, abstracting and then absenting of
land’—alienation’s dual nature meant it was both estrangement from land/
nature and from other people.7 Alienation according to Graham is a relation-
ship that became positivised in the seventeenth and eighteenth centuries with
the prevalence of absolute private property. Modern property law erases the
bilateral aspect of alienation, constr ucting alienation as agency and will: the
person is an active alienating subject, and the land, the passive alienated object
of the land market.8
2 Kohei Saito, ‘Marx’s Ecological Notebooks’ (February 2016) Monthly Review 67(9):
25–42, 26.
3 Marx, Capital (vol. 1) 637–638.
4 KMarx, The Marx Engels Reader in R Tucker (ed) (New York: Norton 1978); Marx,
Early Writings (Penguin 1992) 322. See also Graham 135; John Bellamy Foster and Brett
Clark ‘The Robbery of Nature: Capitalism and the Metabolic Rift’ (July–August 2018)
Monthly Review 1–20.
5 KMarx, Early Writings 328: Man lives from nature, i.e. nature is his body, and he
must maintain a continuing dialogue with it if he is not to die. To say that man’s physical
and mental life is linked to nature simply means that nature is linked to itself, for man is
a part of nature.
6 Graham 44.
7 Ibid 45.
8 Ibid.
5 MARX AND THE DEPHYSICALISATION OF THE LANDSCAPE 39
For Marx, alienation is a result of the failure to recognise the human origin
of objects produced by human activity, specifically their social origin, as pr od-
ucts of co-operative social labour.9 Marx observed that prior to capitalism,
labour reflected the mutuality of social relations in a community attuned
to nature, based on roles assigned within the peasant family unit.10 When
nature was valued solely through human labour and ownership, as a result
of the transition to a capitalist economy, this extinguished the social relations
of property.11 Marx demonstrated his grasp of the significance of alienation
when he articulated the full extent of the loss: the socio-cultural and envi-
ronmental dimensions of property that once characterised the working land-
scape. Rendering land as abstract and alienable property therefore demanded
the dephysicalisation of landscape, the separation of the socio-cultural (the
communal bonds between people and the land) from the ecological, so that
nature could be reduced to natural resources or raw material.
Marx thus described capitalism in terms of its capacity to destroy the
ecosystem as well as human beings’ relationships with nature. The capitalist
economy failed to recognise the impact of its accumulation of capital on the
underlying ecological conditions of human existence; these are mere side-
effects, external social and environmental costs.12 The alienation of labour
under capitalism has as its precondition the alienation of nature—the sever-
ance of human beings from the land, and from their natural environment.13
Labour, once a process between man and nature, became distorted in the
capitalist commodity economy as the accumulation of capital is prioritised14 :
natural and human limits are exceeded, and human and social development
ignored. There are numerous examples of the ecological devastation resulting
9 S Vogel, ‘Marx and Alienation from Nature’ (1988) Social Theory and Practice 14(3):
367–387, 374.
10 Marx, Capital (vol. 1) 171: The different kinds of labour …such as tilling the fields,
tending the cattle, spinning, weaving and making clothes—are already in their natural
form social functions; for they are functions of the family, which, just as much as a society
based on commodity production, possesses. its own spontaneously developed division of
labour. The distribution of labour within the family and the labour-time expended by the
individual members of the family, are regulated by differences of sex and age as well as by
seasonal variations in the natural conditions of labour.
11 Graham 46 and 152; Marx, Capital (vol. 1) 165–166: Objects of utility become
commodities only because they are the products of the labour of private individuals who
work independently of each other. … Since the producers do not come into social contact
until they exchange the products of their labour, the specific social characteristics of their
private labours appear only within this exchange…. there fore, the social relations between
their private labours appear as what they are, i.e. they do not appear as direct social
relations between persons in their work, but rather as material relations between persons
and social relations between things.
12 John Bellamy Foster, ‘The Rediscovery of Marx’s Ecology’ in Marcello Musto (ed),
The Marx Revival: Key Concepts and New Interpretations (Cambridge 2020) 183.
13 Bellamy Foster, ‘Marx’s Ecology’ in The Marx Revival 185.
14 Karl Marx, Grundrisse (London: Penguin 1973) 413.
40 A. BYER
from industrialised agriculture throughout the world,15 and Marx discussed
Ireland in this context.16
As described earlier, the rundale system of land tenure is associated with
traditional land practices that predated the conquest of Ireland. Following
the arrival of the English, land became increasingly unavailable to the general
population as Ireland was rearranged into estates that operated on a commer-
cial basis.17 At the beginning of the nineteenth century, agriculture was
characterised by extreme land subdivision and increasingly high rents, forcing
traditional communities to relocate to the West of Ireland and adapt their land
practices in order to survive in a harsher environment.18 During this period,
the potato was introduced, and while communities initially flourished, the
dependence on this crop and monocultural practices must be understood in
the wider context of British mercantile colonialism,19 which expelled commu-
nities from their homes and set the stage for extinguishing communal bonds
with land.20
Through the rundale system, peasant communities were able to fairly
distribute land, while paying rents to their landlords.21 Communal labour
permeated all aspects of community life, and complex patterns of land use
and distribution were preserved through lineage and kinship bonds, although
these demonstrated flexibility as they were not exclusively patrilineal.22 Avail-
ability of land shaped these practices and modifications were introduced over
time. The functioning landscape relied on gavelkind or partible inheritance.
Gavelkind meant that all members of the rundale community had a right to
access the land, which could not be alienated. This communal property rela-
tionship ensured equality of access for all communal members. The amount
of arable land held by an individual member under the rundale communal
conditions was never quantified by units of measurement such as acres or
furlongs, but by the potential ecological output (or value) of the land area
It is not the unity of living and active humanity with the natural, inorganic conditions
of their metabolic exchange with nature…which requires explanation…but rather the sepa-
ration between these inorganic conditions of human existence and this active existence, a
separation which is completely posited only in the relation of wage labor and capital.
15 Bellamy Foster, ‘Marx’s Ecology’ in The Marx Revival 187.
16 Marx, Capital (vol. 1) 860; Marx, ‘Outline of a Report on the Irish Question to
the Communist Educational Association of German Workers in London, December 16,
1867’ in Marx and Engels (eds), Ireland and the Irish Question (Moscow 1978) 136–149;
Eamonn Slater and Terrence McDonough, ‘Marx on Nineteenth-Century Colonial Ireland:
Analysing Colonialism as a Dynamic Social Process’ (November 2008) Irish Historical
Studies 36(142): 153–172, 172 and at 169.
17 Braa 206 and discussed in Chapter 2.
18 Ibid 207 and 194.
19 Ibid 207.
20 Graham 46 and 152.
21 Braa 201, 198.
22 Ibid 201–202.
5 MARX AND THE DEPHYSICALISATION OF THE LANDSCAPE 41
and the sharing out of its ecological output equally among the communal
members.23 The tradition of communal co-operation characterised all activ-
ities in the rundale communities: crops were planted, tended and har vested
by communal labour, as were herding and peat cutting.24 The mechanism for
maintaining these crucial activities and authority for regulating access relied
on the recognition of various kinship bonds.
The introduction of the potato allowed for the concentration of the popula-
tion, as the crop could be grown on a quarter of the land required for wheat.25
The well-nourished population significantly expanded, but access to land did
not under the British estate system. The fertility of potato crop yields on
smaller and smaller plots of land enabled population growth and accelerated
subdivision of land to support ever-increasing numbers of families, furthering
dependence on the potato. This put pressure on the rundale system and the
gavelkind mode of inheritance.26
Methods of destabilising connections to land were observable elsewhere in
Ireland. Where other rundale systems were destroyed throughout Ireland to
accommodate the creation of commercial estates, tenancy at will prevailed.
This required peasants to bid against each other to obtain a lease, which drove
up rents and created considerable land insecurity. Two forms of subtenancy,
conacre and cottier, introduced peasant communities to wage–labour relations
and cash cropping (markets). Cottier tenants agreed to pay a cash rent after a
successful harvest of a key crop, such as wheat or oats, which was a means of
increasing labour outputs into the production of food and cash crops, while
conacre sublets supplemented cottier subtenancies, with more peasants and
households subsisting on smaller plots of land.27
The intensification of these practices and the limiting of options for
communities relying on the rundale system exhausted the soil, making these
landscapes vulnerable to socio-ecological crises such as the Famine.28 For
Marx, the primary issue was not the plant pathogen itself, but the social condi-
tions that had paved the way for the Famine, that is, the entire history of the
rack-renting system and the subsequent transformation of the socio-ecological
subsistence base of Ireland.29 In impacting soil fertility, the social, economic
and political integrity of land was undermined.30 In monopolising access to
23 Eamonn Slater and Eoin Flaherty, ‘Marx on Primitive Communism: The Irish Rundale
Agrarian Commune, Its Internal Dynamics and the Metabolic Rift’ (2009) Irish Journal
of Anthropology 12(2): 5–34, 12.
24 Braa 202.
25 Ibid 200.
26 Ibid 203–204.
27 Ibid 205–206.
28 Bellamy Foster and Clark, The Rift of Eire 6.
29 Ibid 7.
30 Slater and McDonough 153.
42 A. BYER
land, landlords were able to exploit the Irish by ‘rackrenting’ them.31 Both
practices dismissed the natural limits of the land as communities had been
undermined in their maintenance of these landscapes. Marx thus demonstrated
that property rights could have implications for the physical limits of the envi-
ronment.32 This could not be separated from the social relations communities
developed in their interaction with the environment.
The devastation that the Famine wrought can be traced to the artificially
created dependence on the potato, a decision characteristic of a colonial land
policy that prompted drastic changes to the landscape, substituting capital-
istic modes of production that relied on monoculture and absorption of all
cultivable land. Monocultur e and the resultant Famine reflected particular
understandings of land at odds with its natural limits and the communal bonds
communities formed with the environment. The laissez faire approach to the
economy promoted beliefs that the Famine was a natural phenomenon, and its
adherents advocated a policy of non-intervention in order to allow for ‘market
adjustments’.33 The practices and policies accompanying legal transfer of land
in Ireland were thus never attuned to the rhythms of the landscape. Colo-
nial land transfers were antithetical to the traditional way of life, and distorted
the internal dynamic of the landscape that communities had relied upon for
common survival. Ecosystems were pushed to their limits, as decisions were
made that exhausted the soil, and communities were also destroyed through
the pressures on communal land regimes, or dependence on land practices
such as rack renting that were asynchronous with the local landscape.
Following the Famine, the loss of lives and high emigration facilitated
the consolidation and commercialisation of land to reduce dependence on
the potato.34 Gavelkind gave way to primogeniture to avoid subdivision of
holdings by partible inheritance, which also transformed kinship and marriage
practices.35 The Famine and industrialised agriculture eliminated the need for
an institution to negotiate and divide lots in a manner that ensured equi-
table access for the community, as these communities had been dispersed or
destroyed. Changing the way communities thought about land had changed
the communities themselves. Embracing private pr operty was therefore influ-
enced by subdivision and potato dependence, as a result of the reorganisation
of Ireland into commercial estates following the conquest.36 Key to the devel-
opment of the plantation economy was access to land: the displacement of
communities facilitated the destruction of traditional tenure. The displacement
of peasant communities to marginal areas in the West of Ireland gradually
31 Ibid 162.
32 Slater 172.
33 Braa 204.
34 Ibid 212.
35 Ibid 213.
36 Ibid.
5 MARX AND THE DEPHYSICALISATION OF THE LANDSCAPE 43
severed their relationship with the land. Eventually, the communal mode of
production disappeared, replaced by the capitalised agrarian sector. The condi-
tions for the rejection of traditional tenure, however, were not inevitable
outcomes of the working landscape, but the deliberate results of propertisation
meant to detach communities from the land.
The commercialisation of land disrupted the existence of communities
in tandem with the rhythms of local ecosystems. It was antithetical to the
communal land ethos. Commercialisation encouraged subdivision, the intro-
duction of conacre and cotter tenancies, priming the landscape for dissolution
by making the subsistence base fragile, and the practice by colonial authorities
of non-intervention during the Famine hastened the eradication of institu-
tions and practices used to manage the land under rundale. Exceeding the
limits of Irish land capacity accelerated agrarian production, but had devas-
tating consequences for the soil, and the population. This was possible because
ideas surrounding land as a subject of the market enabled the dismissal of
land’s natural limits and function as a medium for social connectivity for its
traditional communities. This was a harbinger of the Famine, the dissolution
of rundale, the rearrangement of peasant communities, and the consolida-
tion of land under commercially oriented farmers.37 The disappearance of
the lineage mode of production signified the erasure of forms of labour
defined by the interaction of natur e, and social relations dependent upon
these modes of labour. With the introduction of a new class structure, the
agrarian society in Ireland was transformed. Cooperation and equity gave way
to competition and increasingly individualised conceptions of land, which facil-
itated commodity production.38 Dephysicalisation of land thus commodified
people–place relations, defined solely by market exchange values.39
Underscoring the extent of alienation in the dephysicalised landscape is the
complete dehumanisation of peoples who are disembodied in natur e, thus
becoming property themselves. Marx conceived of human beings as ‘corpo-
real’ beings, constituting a ‘specific part of nature’.40 The expropriation of
nature on behalf of the capitalist class becomes the basis for the further expro-
priation and exploitation of humanity and nature, in a vicious cycle leading
ultimately to a rupture in the metabolism of nature and society.41 This is
particularly evident in the slave colonies of the English-speaking Caribbean.
Marx observes that alienation commodifies not just land, but people. If
land is no longer a landscape or place, then it follows that it is no longer
peopled. Marx noted that in a world without people and without place, there
37 Braa 213.
38 Graham 152.
39 Ibid.
40 Marx, Early Writings at fn 184.
41 Bellamy Foster and Clark, ‘The Robbery of Nature’ 17.
44 A. BYER
are only things.42 This explains the comfort with which genocide was deployed
as a policy in the Americas, as well as the creation of slave colonies in the
Caribbean, where enslaved Africans as racialised chattel slaves were deprived
of their humanity in the law. Planters drew slave supplies from Africa, which
was home to diverse peoples of different linguistic, cultural and social back-
grounds, which aided cultural assimilation and erasure in the New World.43
Because enslaved Africans were so far removed from their places of origin, they
were truly ‘natally alienated’, a phrase introduced by Orlando Patterson,44
because they were alienated from their homeland, community and each other.
Enslaved Africans also had no connection to the Caribbean islands or the
plantations in which they laboured. As strangers in a new land, with which they
had no natural relationship, they were truly foreign. Marx’s concept of human
beings as part of nature demonstrates the mode by which enslaved Africans
would be denied their humanity, as they belonged nowhere: neither Africa,
nor the Caribbean. Natal alienation is therefore best understood as alienation
from land.45 This is the ‘double injustice inherent in the slave-based planta-
tion system: the denial of ownership of the land and the resulting denial of an
identity, of a self, of an existence in the world’.46 The commodification and
fetishism of things through the prioritisation of exchange relations, resulting
from the abstraction of land, things and people, reaches its nadir in the
Caribbean, where the acceleration of capitalism required maximal exhaustion
of nature and p eople.47
The ecosystems of the Caribbean were central to the region’s transforma-
tion into slave colonies. A number of commodities that were in high demand
in Europe, such as sugar, could not be grown locally. Sugar required certain
climatic factors, and along with an assortment of plantation crops drove the
evolution of the Atlantic plantation system, accelerated the growth of the
slave trade, and anchored empire, particularly in Britain.48 Caribbean geog-
raphy would prove essential to sugar cultivation.49 The Caribbean colonies, as
42 Graham 135.
43 George Beckford, Persistent Poverty: Underdevelopment of Plantation Economies in the
Third World (Oxford University Press 1972) 38.
44 Orlando Patterson, Slavery and Social Death: A Comparative Study (Harvard Univer-
sity Press 1982) 21–27; David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery
in the New World (Oxford University Press 2008) 94.
45 Olwig, ‘Representation and Alienation’ 20.
46 Malcom Ferdinand, ‘Ecology, Identity, and Colonialism in Martinique: The Discourse
of an Ecological NGO (1980–2011)’ in C Campbell and M Niblett (eds), The Caribbean:
Aesthetics, World-Ecology, Politics (Liverpool University Press 2016) 174–188, 180.
47 Jason W Moore, ‘Transcending the Metabolic Rift: A Theory of Crises in the
Capitalist World-Ecology’ (2011) The Journal of Peasant Studies 38(1): 1–46, 19.
48 William Beinart and Lotte Hughes, Environment and Empire (Oxford University
Press 2009) 26 and 22.
49 Mark W Hauser, ‘A Political Ecology of Water and Enslavement’ (2017) Current
Anthropology 58(2): 227–256, 229, 233–234.
5 MARX AND THE DEPHYSICALISATION OF THE LANDSCAPE 45
islands, were surrounded by the sea, and also had surface water, so plantations
could rely on river channels for transporting goods.50 Plantations demand vast
areas of land, and the coastal tropical lowlands that were not densely populated
proved an ideal fit. These lowlands were not permanently settled, but impor-
tant to Amerindians who practiced shifting cultivation, a specific land use not
immediately familiar to the arriving Europeans.51 Improvement ideology had
made its way to this region, as only those practicing settled agriculture could
be considered legally entitled to claim s overeign rights over land, to improve
it and optimise agricultural yields. The semi-nomadic Amerindian cultures,52
who believed in a common or clan perception of landscape53 were therefore
subject to expropriation and colonisation.
Plantation agriculture in the Caribbean thus reassembled the landscapes
of Amerindian peoples, and had catastrophic consequences for local ecosys-
tems. The widespread conversion of these landscapes to plantations was fueled
by perceptions of the Caribbean landscape as paradise, incapable of despoli-
ation, and offering an eternal bounty of natural resources.54 In some cases
for small islands, the entire land mass could be deemed suitable for sugar
cultivation. Capital-intensive plantation agriculture that was based on slave
labour promoted detrimental environmental change in terms of deforestation,
soil erosion, flooding, gullying, local aridification and drying up of str eams and
rivers.55 Theextremelanduse andpatternsoftimber clearancemadespecies
recovery all but impossible, since their Native habitats were being transformed
into sugar plantations.56 In addition, transformations in industrial technology
in the form of sugar mills and transport such as rail and shipping and associ-
ated port infrastructure were necessary to support the new industry.57 At the
end of the plantation agriculture period (1665–1833) in the English-speaking
Caribbean, the lowland environment had been entirely depleted of nutrients
and invaded by alien species.58
50 Beinart and Hughes 23.
51 Beckford 34.
52 Ibid 286.
53 Ibid 291.
54 Jefferson Dillman, Colonizing Paradise: Landscape and Empire in the British West
Indies (The University of Alabama Press 2015); Laura Hollsten, ‘Controlling Nature
and Transforming Landscapes in the Early Modern Caribbean’ (2008) Global Environ-
ment 1(1): 80–113; Jill Casid, Sowing Empire: Landscape and Colonization (University of
Minnesota Press 2004).
55 Richard Grove, ‘The Island and the History of Environmentalism’ in Mikuláˇs Teich,
Roy Porter and Bo Gustafsson (eds), Nature and Society in Historical Context (Cambridge
University Press 1997) 150.
56 Ibid.
57 David Watts, The West Indies: Patterns of Development Culture and Environmental
Change since 1492 (Cambridge University Press 1990) 438.
58 Ibid 443.
46 A. BYER
Natural resources were manipulated in such a manner as to entrench the
planter/slave power dynamic,59 which demanded permanent disruption of
socio-ecological linkages in land. Over time, Amerindian peoples had been
replaced by indentured European and then enslaved African labour. Enslaved
populations existed to support the plantation system, which monopolised all
natural resources. Enslaved Africans’ association with nature therefore reaf-
firmed their lack of humanity, as their relationship with the land defined the
extent of their oppression and exploitation. As legal property, they were chat-
tels of the sugar estate, distinguishable from indentured labour, who could be
freed and potentially acquire land. This racial distinction in the law, between
enslaved Africans and Irish indentured servants, is first made in Barbados and
exported thereafter throughout the British Empire.60 A communal base was
denied to enslaved Africans—they were not allowed to organise or form their
own neighbourhoods. There were near insurmountable obstacles to the devel-
opment of str ong and well-defined societies in the Caribbean as the r esult of
colonialism and the plantation system.61 The decimation of Amerindians in
the region (socially and politically) removed a common cultural base from
which a population could rebuild and reassert itself, and enslaved Africans
from diverse ethnicities and linguistic backgrounds was unable under the
traumatic conditions of slavery to interact on their own terms and form
sustainable communities.62 Race and space are therefore implicated in the
creation of property rights by emphasising detachment from nature in the
law, a detachment that is accomplished through dispossession, genocide and
dehumanisation.
The contrast between the slave-owner and the enslaved could not be starker
when considered in spatial terms. The small planter elite, in the words of
the historian Richard S. Dunn, ‘held the best land, sold the most sugar,
and monopolised the best offices. In only one generation these planters had
turned their small island into an amazingly effective sugar-production machine
59 Beinart and Hughes 37.
60 In 1661 the Barbados House of Assembly passed two separate comprehensive labour
codes: one act governed ‘Christian Servants,’ the other ‘Negro slaves’: ‘An Act for the
Better Ordering and Governing of Negroes,’ September 27, 1661 (The National Archives,
London, co 30/2, 16–26); ‘An Act for the Good Governing of Servants, and Ordaining
the Rights Between Masters and Servants’ published in Richard Hall (ed), 1764. Acts,
Passed in the Island of Barbados (London: printed for Richard Hall) 35–42. See also
Edward B Rugemer, ‘The Development of Master y and Race in the Comprehensive Slave
Codes of the Greater Caribbean during the Seventeenth Centur y’ (July 2013) The William
and Mary Quarterly 70(3): 429–458.
61 Mark W Hauser and Dan Hicks, ‘Colonialism and Landscape: Power, Materiality
and Scales of Analysis in Caribbean Historical Archaeology’ in Dan Hicks, Laura McAt-
ackney and Graham Fairclough (eds), Envisioning Landscape: Situations and Standpoints
in Archaeology and Heritage (Routledge 2007) 253, 258; Beckford, Persistent Poverty 77.
62 Beckford 77. It should be noted, however that enslaved Africans were able to chal-
lenge the plantation system in myriad ways, and the concept of agency within Caribbean
plantation societies is thus a complex one.
5 MARX AND THE DEPHYSICALISATION OF THE LANDSCAPE 47
and had built a social structure to rival the tradition-encrusted hierarchy of
old England’.63 Slave-owners, therefore, possessed spatial privileges in these
islands as they held all property rights in land and labour, while slaves were
physically emplaced but held no rights to exist outside the law.
Nevertheless, the population disparities concerned the white elite, who
were surrounded by an enslaved majority. This encouraged the practice of
absenteeism amongst the most powerful members of the plantocracy in the
eighteenth and early nineteenth centuries.64 A buffer class of professional
‘book-keepers’ (managers) and overseers was created to manage these estates.
They in turn were motivated to maximise plantation profits in order to
escape the region and retire home to Britain. This reinforced the perception
that the region was ‘uninhabitable’, as there were no ‘reassuring social and
psychological boundaries of traditional societies’.65
Absentee slave-owners therefore were not even required to be in place or
protect place while they owned land, sometimes multiple plantations across
several islands. They held total control over the land, and the privileges
that came with ownership, voting in the colonial legislatures, while living in
England. It was to their benefit as property-owners that these slave colonies
were not functioning places, and this dynamic was maintained to accrue and
entrench their wealth. By contrast, enslaved populations were very much
emplaced, shaping the land and developing complex enduring relations with
the landscape, but their lived-in experiences found no formal expression in
the law as they were owned rather than possessing ownership rights them-
selves. This dynamic has set the stage for modern capitalism’s affinity with
abstract property rights, often at the expense of lived-in landscapes and their
inhabitants.
Public authorities entrenched the power of the plantocracy, even in their
absence, because their sole function was to perpetuate the plantation system,
which included regulation of life and work on the estates, and to ensure above
all else that the enslaved population never challenged the status quo.66 Legis-
lation could not maximise profitability of plantation production and ensure
the welfare of plantation labour at the same time.67 It was thus antithetical to
the survival of the slave colonies for legislation to recognise the humanity of
63 Brion Davis 115. On the impact of the sugar industry see Sidney W Mintz, Sweetness
and Power: The Place of Sugar in Modern History (Sifton 1985).
64 Hicks 43–44.
65 Brion Davis 115. The institution of slavery in the English-speaking Caribbean is
discussed in Randy M Browne, Surviving Slavery in the British Caribbean (University of
Pennsylvania Press 2017).
66 Beckford 40.
67 Ibid.
48 A. BYER
the slaves. ‘The common law of England is the common law of the planta-
tions’, wrote the Admiralty’s legal counsel, Richard West, in 1720.68 That
law deployed property rights as an ordering mechanism, unmaking land-
scapes and human interactions with nature in the process, which facilitated
the degradation of both humanity and the environment.
Because no attention was paid to land as a base for human subsistence and
identity, it was recognised only in terms of its market value. The dephysicalisa-
tion of land as vacuous space or paradise extinguished pre-existing Amerindian
property rights in favour of private land ownership for the planter elite. Colo-
nial property rights therefore facilitated the translation of these landscapes into
property as we know it today and concretised particular cultural perceptions of
land, nature and race so that they favoured maximum exploitation of people
and the environment.
In critiquing capitalism and its impact through property rights on the
natural limits of the land and the survival of mankind, Marx was in fact
addressing the sustainability of property.69 He articulated the costs of alien-
ation that Bentham and Hohfeld never considered. He highlighted the
underlying factors of spiritual estrangement, community displacement and
environmental collapse that accompanied the dual process of alienation,
severing nature from culture. That alienation is no longer considered a rupture
in the fabric of the landscape, but a process of agency, helmed by indi-
vidual property owners who can alienate tradeable rights in land, demonstrates
the successful dephysicalisation of the landscape. Marx never referred to the
term landscape, but in recognising local ecological limits, he considered the
spatial consequences of alienation on communities that were dispossessed or
displaced from the nature to which they belonged. Such a treatment is absent
in Hohfeldian property theory where property is an abstract right.
Exceeding the limits of Irish land’s natural capacity had devastating conse-
quences leading to the Famine. The policy of non-intervention, reflected in
laws and practices at the time, conceived of soil exhaustion as natural shocks
in the economy, which would right itself in due course. No attention was
paid to land as the basis for cultural life, so the Famine indirectly destroyed
traditional communities by destroying communal modes of production and
inheritance. In the Caribbean, ecosystem collapse was an inevitable result of
the dephysicalisation of the landscape. The comprehensive propertisation of
Caribbean landscapes demanded the dissolution of Amerindian property and
the dehumanisation of enslaved African peoples to ensure the rift between man
and nature was maintained.
68 Richard West, ‘On English Common and Statute Law in Settled Colonies’ (June
1720) in Madden and Fieldhouse (eds), Select Documents on the Constitutional History of
the British Empire and Commonwealth (4 vols., Westport, Conn 1985) 2, 192, as cited
in Eliga Gould, ‘Zones of Law, Zones of Violence: The Legal Geography of the British
Atlantic, circa 1772’ (July 2003) The William and Mar y Quarterly 60(3): 471–510, 497.
69 Graham 98.
5 MARX AND THE DEPHYSICALISATION OF THE LANDSCAPE 49
Marx’s regard for the ‘conscious and sustainable regulation of the metabolic
interaction between humanity and nature’70 reflects an understanding of the
inherent logic of the landscape. Marx rejected linear approaches to agricul-
ture’s development, enabling him to recognise modern agriculture’s irrational
and destructive use of land.71 In situating alienation within its natural and
social context, Marx demonstrated the costs of propertisation of the land-
scape. He resisted ahistoric and aspatial approaches to land, recognised the
human, social and ecological costs of alienation not addressed today, and
the fissuring of the landscape (through the division of its socio-cultural and
ecological elements) as the critical event facilitating land’s ultimate abstraction
or propertisation—its final conceptualisation as a bundle of transferable rights
or property.72
References
G Beckford, Persistent Poverty: Underdevelopment of Plantation Economies in the Third
World (Oxford University Press 1972).
W Beinart and L Hughes, Environment and Empire (Oxford University Press 2009).
J Bellamy Foster, ‘The Rediscovery of Marx’s Ecology’ in Marcello Musto (ed), The
Marx Revival: Key Concepts and New Interpretations (Cambridge 2020).
J Bellamy Foster and Brett Clark, ‘The Robbery of Nature: Capitalism and the
Metabolic Rift’ (July–August 2018) Monthly Review 7(3): 1–20.
J Bellamy Foster and B Clark, ‘The Rift of Eire’ (April 2020) Monthly Review 71(11):
1–11.
DM Braa, ‘The Great Potato Famine and the Transformation of Irish Peasant Society’
(1997) Science & Society 61(2): 193–215.
D Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World
(Oxford University Press 2008).
RM Browne, Surviving Slavery in the British Caribbean (University of Pennsylvania
Press 2017).
J Casid, Sowing Empire: Landscape and Colonization (University of Minnesota Press
2004).
J Dillman, Colonizing Paradise: Landscape and Empire in the British West Indies
(University of Alabama Press 2015).
A Dowling, ‘Of Ships and Sealing Wax: The Introduction of Land Registration in
Ireland’ (1993) Northern Ireland Legal Quarterly 44: 360–380.
70 Saito 39.
71 Saito 28.
72 The land registration system which emerged around the time of Marx’s writing was
based on models designed for government stock and shipping, and was meant to make
land as easily transferable as any other property. Sir Robert Torrens later said of the system
he created that he ‘copied the whole system from the transfer of shipping’ (Report of
Her Majesty’s Commissioners oil Agriculture (1881) BPP xiv I, App q 65.484. See Alan
Dowling, ‘Of Ships and Sealing Wax: The Introduction of Land Registration in Ireland’
(1993) N Ir Legal Q 44: 360–380, 360 and 364.
50 A. BYER
M Ferdinand, ‘Ecology, Identity, and Colonialism in Martinique: The Discourse of an
Ecological NGO (1980–2011)’ in C Campbell and M Niblett (eds), The Caribbean:
Aesthetics, World-Ecology, Politics (Liverpool University Press 2016) 174–188.
E Gould, ‘Zones of Law, Zones of Violence: The Legal Geography of the British
Atlantic, circa 1772’ (July 2003) The William and Mar y Quarterly 60(3): 471–510.
N Graham, Lawscape: Property, Environment, Law (Routledge-Cavendish 2010).
R Grove, ‘The Island and the History of Environmentalism’ in M Teich, R Porter and
B Gustafsson (eds), Nature and Society in Historical Context (Cambridge University
Press 1997).
RHall(ed), 1764. Acts, Passed in the Island of Barbados (London: printed for Richard
Hall).
MW Hauser, ‘A Political Ecology of Water and Enslavement’ (2017) Current
Anthropology 58(2): 227–256.
MW Hauser and D Hicks, ‘Colonialism and Landscape: Power, Materiality and Scales
of Analysis in Caribbean Historical Archaeology’ in D Hicks, L McAtackney and G
Fairclough (eds), Envisioning Landscape: Situations and Standpoints in Archaeology
and Heritage (Routledge 2007).
D Hicks, L McAtackney and G Fairclough (eds), Envisioning Landscape: Situations
and Standpoints in Archaeology and Heritage (Routledge 2007).
L Hollsten, ‘Controlling Nature and Transforming Landscapes in the Early Modern
Caribbean’ (2008) Global Environment 1(1): 80–113.
K Marx, Grundrisse (Penguin 1973).
______, Capital (vol. 1, Penguin 1976).
______, ‘Outline of a Report on the Irish Question to the Communist Educational
Association of German Workers in London, December 16, 1867’ in K Marx and F
Engels (eds), Ireland and the Irish Question (Moscow 1978).
______, Early Writings (Penguin 1992).
SW Mintz, Sweetness and Power: The Place of Sugar in Modern History (Sifton 1985).
JW Moore, ‘Transcending the Metabolic Rift: A Theory of Crises in the Capitalist
World-Ecology’ (2011) The Journal of Peasant Studies 38(1): 1–46.
K Olwig, ‘Representation and Alienation in the Political Landscape’ (2005) Cultural
Geographies 12(1): 19–40.
O Patterson, Slavery and Social Death: A Comparative Study (Harvard University
Press 1982) 21–27.
EB Rugemer, ‘The Development of Mastery and Race in the Comprehensive Slave
Codes of the Greater Caribbean during the Seventeenth Century’ (July 2013) The
William and Mary Quarterly 70(3): 429–458.
K Saito, ‘Marx’s Ecological Notebooks’ (February 2016) Monthly Review 67(9): 25–
42.
E Slater and T McDonough, ‘Marx on Nineteenth-Century Colonial Ireland:
Analysing Colonialism as a Dynamic Social Process’ (November 2008) Irish
Historical Studies 36(142): 153–172.
E Slater and E Flaherty, ‘Marx on Primitive Communism: The Irish Rundale Agrarian
Commune, Its Internal Dynamics and the Metabolic Rift’ (2009) Irish Journal of
Anthropology 12(2): 5–34.
RC Tucker (ed), The Marx - Engels Reader (2nd edn., W.W. Norton & Company
1978).
S Vogel, ‘Marx and Alienation from Nature’ (1988) Social Theory and Practice 14(3):
367–387.
5 MARX AND THE DEPHYSICALISATION OF THE LANDSCAPE 51
D Watts, The West Indies: Patterns of Development, Culture and Environmental Change
since 1492 (Cambridge University Press 1990).
R West, ‘On English Common and Statute Law in Settled Colonies’ (June 1720) in
Madden and Fieldhouse(eds), Select Documents on the Constitutional History of the
British Empire and Commonwealth (4 vols., Westport, Conn 1985).
Open Access This chapter is licensed under the terms of the Creative Commons Attri-
bution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes were
made.
The images or other third party material in this chapter are included in the chapter’s
Creative Commons license, unless indicated otherwise in a credit line to the mate-
rial. If material is not included in the chapter’s Creative Commons license and your
intended use is not permitted by statutory regulation or exceeds the permitted use,
you will need to obtain permission directly from the copyright holder.
CHAPTER 6
Extinguishing Landscape, Creating Property:
Property and Spatial Injustice
Abstract This chapter reflects on the ways in which loss of place or land-
scape destruction can be considered intrinsic to property’s formulation in the
law. In summarising the relationship between the common law and land by
examining property’s impact on various geographic locations, it becomes clear
that private property has benefitted from undemocratic and environmentally
harmful activities that have concerning implications for sustainable land use.
Failure to consider enduring people–place relations developed in response
to local limits means that property operates without regard for the physical
environment, including its cultural dimensions, and this has implications for
human rights and ecological resilience. The chapter closes by identifying this
transition from landscape to property as spatial injustice that is upheld by the
law.
Keywords Abstract logic · Landscape destruction · Spatial injustice ·
Cultural dimension of land
Property has been abstracted to the point where it is illusory.1 Indeed,
Margaret Davies denounces property by stating:
It is evidence of the perniciousness and emptiness of this concept of property
that it is extendable equally to a person (through the now-defunct concept of
1 Kevin Gray, ‘Pr operty in Thin Air’ (1991) Cambridge Law Journal 50: 252–307, 306:
‘When subjected to close analysis the concept of “property” vanishes into thin air just as
surely and elusively as the desired phantom with which we began’.
© The Author(s) 2023
A. Byer, Placing Property, Palgrave Socio-Legal Studies,
https://doi.org/10.1007/978-3-031-31994-5_6
53
54 A. BYER
slavery) and to a plastic bucket, and that it can imagine land as two-dimensional
space without ecological characteristics or heritage.2
This abstract logic of property is symptomatic of the law’s perceived
impartiality, which relies on the denial of geography to be universally appli-
cable. Yet, acknowledgement of geographic disparities is central to spatial
justice. It follows that property’s ascendancy coincides with the destruction
of landscapes, which were defined by locally specific uses and interests in land.
The accretion of private property rights in the common law thus required
the elimination of the social and cultural dimensions of land. Locke, Black-
stone and Marx were not familiar with landscape as a legal geographical
concept, but their contributions to property theory are relevant to the integrity
of land. Locke focused on the individual using his labour to transform the
commons into private property. This influenced the perception of common
resources, the core of the working landscape, as primitive, undeveloped
and homogenous. Garret Hardin’s influential article on the ‘Tragedy of the
Commons’,3 relied on this misconception of the commons as an open resource
situation inherently incapable of management, while positioning private prop-
erty as its superior alternative, though Hardin later recanted and revised this
thesis.4
Enclosure of common land was achieved through Parliament (the Enclo-
sure Acts) and the courts. This had far-reaching biogeographic and social
consequences, facilitating the decline of diverse communally managed areas
in England. The American colonies in particular served as the loci for Locke’s
theories of land acquisition and property, where commons were ‘wasted’ and
required individual improvement to generate maximum profit. At home and
abroad, enclosing land served to flatten ecosystems, interests and communi-
ties into the imperial landscape from which property rights could be created.
European settlers ejected Native Americans from their own land in violent and
oppressive ways, also masked as legal transfers on the land market.
Like Locke, Blackstone was well versed in the fluidity of interests in
land and discussed them in his chapter on tenures.5 However, Blackstone
relied on medieval legal sources on feudalism to legitimise the common law,
2 Davies 1110.
3 Science (1968) 162(3859): 1243–1248.
4 Garrett Hardin, ‘The Tragedy of the ‘Unmanaged’ Commons’ in RV Andelson (ed),
Commons Without Tragedy (Shepheard Walwyn 1991). However, Oosthuizen points out
that Hardin conflated public property rights with common rights, and this thesis was
debunked by S Ciriacy-Wantrup and Richard C Bishop ‘“Common Property” as a Concept
in Natural Resources Policy’ (1975) Natural Resources Jour nal 15: 713–727. See also
Oosthuizen on the archaeological evidence for effectively functioning common property
rights in early medieval England in The Emergence of the English (Arc Humanities Press
2019).
5 1 Bl Comm 59; Carol M Rose, ‘Canons of Proper ty Talk, or, Blackstone’s Anxiety’
(1998) The Yale Law Journal 108: 601–632, 603.
6 EXTINGUISHING LANDSCAPE, CREATING PROPERTY … 55
contrasting feudal Norman values with ostensibly liberal, enlightened English
ones. He paid scant attention to local lived-in land practices and customs in
England, denoting them encumbrances against the landlord, which impaired
his ability to exercise full possession and enjoyment of the land. These uses
were no longer proto-regulatory mechanisms developed by commoners to
ensure their independent way of life, but constraints or burdens upon the
private landowner. Blackstone thus contextualised the development of prop-
erty as deliverance from the ‘slavery’ of feudalism and viewed the assertion of
private property rights through the right to exclude as an attempt to restore
the original liberties of the Saxon constitution.6
Marx, unlike Blackstone, emphasised the social relations that belied the
tenurial system in feudal England, and examined the costs of the loss of these
mutual social relations when people were dispossessed of land, now celebrated
as a key characteristic of property: alienability. Land’s capacity for alienation
accompanies the abstraction of land or the complete extinguishment of the
landscape. The starting point is the dephysicalisation or rift between people
and nature. Marx questioned the ecological costs of capitalism through its
deployment of property rights in the accumulation of wealth. In his critique
of capitalism and the idea of the metabolic rift, Marx addressed the concept
and impact of the human loss of place-defined relationships in land. Colonies
such as Ireland and those in the Caribbean found themselves at the frontier of
capitalism, where land was exploited beyond its physical limits. The metabolic
rift thus occurs when land has been so dephysicalised that there are no limits
to exceed—and this enabled the ecological collapse that preceded Ireland’s
Famine and the destruction of Caribbean island ecosystems and societies via
plantation agriculture.
These examples of landscape destruction were accomplished through the
delineation and imposition of property rights. The emphasis on law’s abstract
logic enabled the dismissal of geographical disparities wherever property was
deployed. This is demonstrated by the inability of land law in various juris-
dictions to respond to locally specific conditions, resulting in spatial injustice.
But, it is difficult to challenge property when it acts as a filter constraining the
way land itself is understood. Private property rights are aligned with liberal
democracy, impoverishing property discourse by framing private property as
the ideal institution keeping repressive monarchy at bay at one end of the
spectrum, while avoiding collectivist agriculture models imposed by the State
at the other.7
The inability to recognise distinctive communal land regimes explains the
continuing failure of the law to regulate the commons adequately, since
prescribed management mechanisms treat all commons as homogenous and
6 Burns 79; 2 Bl Comm 51–52.
7 Ellickson 1318.
56 A. BYER
interchangeable.8 The influence of the American concept of wilderness on
international cultural heritage law and environmental law can be seen in the
protection of national parks around the world that were often originally lived-
in landscapes from which Native peoples had been expelled, as was the case
with Yosemite and Yellowstone National Parks.9 Privatisation of public space
has spatial implications, especially in small island states where developers view
land as a commercial asset, and planning permission is often granted without
considering non-ownership interests of local communities that affect their
livelihoods and continued existence.
Landscape now exists only in the scenic sense (such as a landscaped garden)
because its representative qualities for the community have been reduced to
the pictorial. Other ways of construing land have not been extended beyond
the Indigenous context, which means that the law treats collective understand-
ings of land as an exception. Attempts at defining collective or communal land
practices are often fixed in time, imposed from the top down (the écomusée
model of a heritage landscape) or performative (a commune) or are absorbed
into ethno-nationalist extremist views.10 These all fail to capture the dynamic
sense of the flexible working landscape as a nexus of land, law and people.
References
W Blackstone, Commentaries on the Laws of England (Oxford 1765–1769).
RP Burns, ‘Blackstone’s Theory of the Absolute Rights of Property’ (1985) University
of Cincinnati Law Review 54: 67–87.
S Ciriacy-Wantrup and Richard C Bishop ‘“Common Property” as a Concept in
Natural Resources Policy’ (1975) Natural Resources Journal 15: 713–727.
A Clarke, ‘How Property Works: The Complex World View’ (2013) Nottingham Law
Journal 22: 141–155.
M Davies, ‘Can Property Be Justified in an Entangled World?’ (2020) Globalizations
17(7): 1104–1117.
RC Ellickson, ‘Property in Land’ (1993) The Yale Law Journal 102(6): 1315–1400.
K Gray, ‘Property in Thin Air’ (1991) Cambridge Law Journal 50: 252–307.
G Hardin, ‘Tragedy of the Commons’ (1968) Science 162(3859): 1243–1248.
______, ‘The Tragedy of the “Unmanaged” Commons’ in RV Andelson (ed),
Commons Without Tragedy (Shepheard Walwyn 1991).
K Olwig, Landscape, Nature and the Body Politic: From Britain’s Renaissance to
America’s New World (University of Wisconsin Press 2002).
S Oosthuizen, The Emergence of the English (Arc Humanities Press 2019).
8 Alison Clarke, on the failure of the English Commons Registration Act 1965, partially
remedied by the Commons Act 2006, in ‘How Property Works: The Complex World view’
(2013) Nottingham L.J. 22: 141–155, 149.
9 David Treuer, ‘Return the National Parks to the Tribes’ (The Atlantic May 2021)
accessed 29 May 2021, https://www.theatlantic.com/magazine/archive/2021/05/ret
urn-the-national-parks-to-the-tribes/618395/; Olwig, Landscape Nature and the Body
Politic 224.
10 Olwig Landscape, Nature and the Body Politic 226.
6 EXTINGUISHING LANDSCAPE, CREATING PROPERTY … 57
CM Rose, ‘Canons of Property Talk, or, Blackstone’s Anxiety’ (1998) The Yale Law
Journal 108: 601–632.
D Treuer, ‘Return the National Parks to the Tribes’ (The Atlantic May 2021)
accessed 29 May 2021, https://wwwtheatlantic.commagazine/archive/2021/05/
return-the-national-parks-to-the-tribes/618395/.
Open Access This chapter is licensed under the terms of the Creative Commons Attri-
bution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes were
made.
The images or other third party material in this chapter are included in the chapter’s
Creative Commons license, unless indicated otherwise in a credit line to the mate-
rial. If material is not included in the chapter’s Creative Commons license and your
intended use is not permitted by statutory regulation or exceeds the permitted use,
you will need to obtain permission directly from the copyright holder.
CHAPTER 7
Progressive Property: A Spatially Just Approach
to Property?
Abstract This chapter examines the progressive property school’s attempts to
address property’s shortcomings, as it is one of the more recent critiques of the
ownership model to have gained traction. The main characteristics of progres-
sive property are described, and the contributions of prominent scholars are
summarised in relation to virtue ethics, public trust and the common heritage
of mankind. While noting that this school emerged in the specific cultural
context of the US, and that its parameters are continuing to evolve, the
chapter nevertheless outlines some conceptual limitations in progressive prop-
erty thinking that have implications for developing a spatially just approach
to property. The chapter concludes by reinforcing the importance of a legal
geographical perspective when examining the law’s relationship with land.
Keywords Progressive property · Ownership · Virtue ethics · Public trust
doctrine · Common heritage of mankind
The progressive property school of thought has attempted to challenge the
ownership model and its grip on property. In a statement, four leading scholars
outlined its main tenets.1 These include the recognition that because property
confers power and reallocates resources, it has the ability to alter social rela-
tionships and impact communities;2 property as a social institution should thus
1 Gregor y S Alexander, Eduardo M Peñalver, Joseph W Singer and Laura S Underkuffler,
‘A Statement of Progressive Property’ (2009) Cornell Law Review 94: 743–745.
2 Laura S Underkuf fler, ‘The Holy Grail of Progressive Property’ (2020) Cornell Journal
of Law and Public Policy 29: 717–735, 719.
© The Author(s) 2023
A. Byer, Placing Property, Palgrave Socio-Legal Studies,
https://doi.org/10.1007/978-3-031-31994-5_7
59
60 A. BYER
meet underlying moral values3 and support a free and democratic society.4
Such a model would apply values consistent with human flourishing, and be
responsive to the effects of claiming property rights on others, including the
environment and the non-human world.5 Here, I briefly consider whether
the conceptual possibilities afforded by progressive property are sufficiently
transformative to incorporate spatial justice.
As Timothy Mulvaney writes, progressive property scholars ‘offer an alter-
native to what they see as the curr ently dominant conception of property
that is heavily centered on coordinating economic transactions and for which
standardised exclusion rights constitute ownership’s essential core’.6 Thus,
property law making ‘must be more nuanced, more expressly political, and
less preoccupied with the owner’s right to exclude’.7 An understanding that
ownership does not countenance alternative understandings of pr operty (thus
failing to accept property’s plural values), challenging the Demsetzian concept
of economic maximisation as it relates to land8 and promoting social justice
appear to characterise this scholarship.
This has led to several strands of research, including an investigation of
property’s roots in Anglo-American law which predate the market and were
previously aligned to a notion of social good,9 revealing that non-owners can
build up long-standing attachments to land over time10 and promoting a new
normative framework for land use based on virtue ethics.11 However, critics
have questioned the use of virtue ethics where human beings demonstrate that
they can be situational ethical,12 and whether using law to promote virtue is
consistent with society’s value pluralism.13 Property theorists have also posited
that property can play a constituent role in identity formation,14 but this is
3 Patrick JL Cockburn, ‘A Common Sense of Property?’ (2016) Distinktion: Journal of
Social Theory 17(1): 78–79, 85.
4 ‘A Statement of Progressive Property’ 744.
5 Ibid.
6 Timothy Mulvaney, ‘Progressive Property Moving For ward’ (2014) California Law
Review 5: 349–373, 351.
7 Ezra Rosser, ‘The Ambition and Transformative Potential of Progressive Property’
(February 2013) California Law Review 101(1): 107–171, 109–110.
8 Harold Demsetz, ‘Toward a Theory of Property Rights’ (1967) American Economic
Review 57: 347–359.
9 Gregor y Alexander, ‘Property as Propriety’ (1998) Nebraska Law Review 77: 667–699.
10 Joseph William Singer, ‘The Reliance Interest in Property’ (1988) Stanford Law
Review 40: 611–751, 622.
11 Eduardo M. Peñalver, ‘Land Virtues’ (2009) Cornell Law Review 94: 821–889.
12 Katrina Wyman, ‘Should Property Scholars Embrace Virtue Ethics—A Skeptical
Comment’ (2009) Cornell Law Review 94: 991–1008, 1000, 1002.
13 Wyman 1003.
14 Margaret Radin, ‘Property and Personhood’ (1982) Stanford Law Review 34(5): 957–
1015.
7 PROGRESSIVE PROPERTY: A SPATIALLY JUST APPROACH … 61
conceived of in individualistic terms, rather than spatial ones.15 There have
been attempts to apply property as identity, but strictly as it applies to Indige-
nous peoples and the experience of dispossession of land within the settler
colonial context.16
Absent in the discussions is the role of the land itself, and the attendant
relationships that emanate from human interaction with the environment.
These are not monolithic. Morality is not recognised as spatially embedded
in the landscape as it evolved from the mores and use rights of local custom.
Common customary law wielded power through moral pressure and commu-
nity control, which protected shared resources from deterioration and loss.17
A universal morality may possess rhetorical force, but without a focus on
lived-in people–place relations, the relevance of locally encoded behaviour to
ecosystem protection will be overlooked.18
In addition, both the welfare function of property and the goal of human
flourishing are informed by locally specific factors of geography as they
manifest in the physical environment. Geographic disparities can define and
exacerbate inequalities in public health, housing and food security. In fact,
inequalities stem from the distribution of land, which differs from place to
place. Terms such as ‘moral’, ‘welfare’, ‘flourishing’, ‘resource’ and ‘environ-
ment’, are therefore subject to heterotopian formulation, not accounted for in
progressive property theory.
Society is composed of communities generating their own norms that
can challenge and vary how property operates, rather than a generic public.
Resources are also not generic, and the term itself implies extractability and
exploitability, which does not encompass cultural understandings of land.
Thinking of resources in terms of water, land, oil, minerals entrenches the
alienability of land, not as a web of interacting rights, interests and uses but as
separable strands easily teased out and exchangeable on the market. Arbitrary
application of terms such as ‘common heritage of mankind’ elides the locally
developed relationships that can be critical to the continued functioning of
places. While the use of the public trust doctrine is claimed as a strength
in unifying people with the environment under progressive property,19 it in
fact demonstrates the limits of what property can do where lived-in places are
15 Edward Soja, Seeking Spatial Justice (University of Minnesota Press 2010).
16 See Kristin Carpenter’s work, which has extended Radin’s model to identity in terms
of collective peoplehood: K Carpenter, ‘Real Property and Peoplehood’ (2008) Stanford
Environmental Law Journal 27: 313–396.
17 See Olwig, ‘Virtual Enclosure, Ecosystem Services, Landscape’s Character and the
‘Rewilding’ of the Commons: the ‘Lake District’ Case’ Landscape Research 41(2): 253–
264, 256.
18 See Nicholas Blomley, ‘Performing Property: Making the World’ (2013) The Cana-
dian Journal of Law & Jurisprudence 26: 23–48.
19 Laura Spitz and Eduardo M Peñalver, ‘Nature’s Personhood and Property’s Virtues’
(2021) Har vard Environmental Law Review 45: 67–98, 94.
62 A. BYER
concerned, because it is defined in terms of ownership, serving the general
public interest and for fixed purposes.20
Landscape or place is therefore the omission in progressive property’s
attempts to reconcile the public trust doctrine with the environment, partic-
ularly as this doctrine derives from Roman law and notions of state-owned
property for the benefit of all its citizens, common to all or owned by
all (communes omnibus and communes omnium respectively).21 It was not
concerned with local interests in land. Modifying or balancing ownership
prerogatives continues to rely on the assumption that private ownership can
accommodate and respond to generic resources that exist to be exploited
rationally via the market, rather than interconnected ecosystems that rely
on place-specific communal interaction for continued functioning. Protecting
resources, even in ostensibly sustainable ways, does not negate the extractable
logic of property rights that facilitated dispossession and despoliation of land in
the first place, particularly where those resources were perceived to be scarce.
While progressive scholars have indeed drawn attention to property’s limits
in the social sphere, it is difficult to transcend private property, which is
still aligned with individual freedom while the collective remains a homoge-
nous interest. Non-ownership interests in land remain subordinate to property
or are completely absent. Where redistribution is promoted, it is not clear
that this involves communal understandings of land, which might vary from
community to community. The intention is to ‘dissolve the baseline that
private property exists primarily to advantage owners and create market gains
(or, even, for that matter, to promote freedom) in favor of a system of property
that regularly realigns so that it remains justified in terms of the widespread
benefits it offers to the collective’.22 This interpretation might lend itself to
the idea that individual property necessitates encumbrances in the name of
welfare, a modern variation on Blackstone. In modifying individual owner-
ship to achieve social justice goals for the collective, assumptions are made
about the collective that ignore geography, and could ultimately under mine
the integrity of place. Progressive property is thus hampered by its lack of
place literacy.
However, it must be acknowledged that the main exponents of progres-
sive property, thus far have been mostly American and concerned with the
history, ethos and problems of land use in the United States. In the United
Kingdom and Ireland, scholars drawing on legal realism and legal geography
have begun to engage with the notion of property as abstract and reflect on
20 Spitz and Peñalver 95.
21 See Bruce W Frier, ‘The Roman Origins of the Public Trust Doctrine’ (October 14,
2019). The University of Michigan Public Law Research Paper No. 655, Journal of Roman
Archaeology 32. Carol Rose notes that Joseph Sax extended the public trust concept,
originally concerned with bodies of water, to land and natural resource management in
general. See Rose, ‘Joseph Sax and the Idea of the Public Trust’ (1998) Ecology Law
Quarterly 25: 351–362.
22 Mulvaney 368.
7 PROGRESSIVE PROPERTY: A SPATIALLY JUST APPROACH … 63
the consequences for informal, lived-in relationships with land.23 Land law
in particular has been noted to be the body of law most committed to legal
doctrinalism, and as a result, pays little attention to the ways in which people
can be marginalised and rendered invisible through the reinforcement of legal
norms.24 This challenges the presumed neutrality of property and exposes the
distorting effects of the ownership model on land.
In spite of these promising advances, progressive property scholarship has
not replaced the existing normative framework. Thus far, there is simply no
vocabulary for articulating the functions of landscape in the common law—it
is an outlier in property law. In fact, landscape’s functions have been redis-
tributed to other areas of law, such as cultural heritage law, planning law and
environmental law, which act as proxies that reinforce the property concept by
managing conflicts over custom, land use and environmental impacts in ways
that insulate private property rights from challenges.
Propertising the landscape has thus contributed to spatial injustice—prop-
erty as a narrative, as an institution and as a concept inhibits diverse under-
standings of land that align with physical reality, represent pluralistic values
and respect non-ownership interests in land.
References
G Alexander, ‘Property as Propriety’ (1998) Nebraska Law Review 77: 667–699.
GS Alexander, EM Peñalver, JW Singer and LS Underkuffler ‘A Statement of
Progressive Property’ (2009) Cornell Law Review 94: 743–745.
S Blandy, S Bright and S Nield, ‘The Dynamics of Enduring Property Relationships
in Land’ (2018) Modern Law Review 81(1): 85–113.
N Blomley, ‘Performing Property: Making the World’ (2013) Canadian Journal of
Law & Jurisprudence 26: 23–48.
K Carpenter, ‘Real Property and Peoplehood’ (2008) Stanford Environmental Law
Journal 27: 313–396.
PJL Cockburn, ‘A Common Sense of Property?’ (2016) Distinktion: Journal of Social
Theory 17(1): 78–93.
H Demsetz, ‘Toward a Theory of Property Rights’ (1967) American Economic Review
57: 347–359.
L Fox O’Mahony, ‘Property Outsiders and the Hidden Politics of Doctrinalism’
(2014) Current Legal Problems 67(1): 409–445.
BW Frier, ‘The Roman Origins of the Public Trust Doctrine’ (October 14, 2019).
University of Michigan Public Law Research Paper No. 655, Journal of Roman
Archaeology 32.
T Mulvaney, ‘Progressive Property Moving Forward’ (2014) California Law Review
5: 349–373.
23 Sarah Blandy, Susan Bright and Sarah Nield, ‘The Dynamics of Enduring Property
Relationships in Land’ (2018) Modern Law Review 81(1): 85–113. See also Rachael Walsh,
Property Rights and Social Justice: Progressive Property in Action (Cambridge 2021).
24 Lorna Fox O’Mahony, ‘Property Outsiders and the Hidden Politics of Doctrinalism’
(2014) Current Legal Problems 67: 409–445, 419, 414.
64 A. BYER
K Olwig, ‘Virtual Enclosure, Ecosystem Services, Landscape’s Character and the
“Rewilding” of the Commons: The “Lake District” Case’ (2016) Landscape
Research 41(2): 253–264.
EM Peñalver, ‘Land Virtues’ (2009) Cornell Law Review 94: 821–889.
M Radin, ‘Property and Personhood’ (1982) Stanford Law Review 34(5): 957–1015.
C Rose, ‘Joseph Sax and the Idea of the Public Trust’ (1998) Ecology Law Quarterly
25: 351–362.
E Rosser, ‘The Ambition and Transformative Potential of Progressive Property’ (2013)
California Law Review 101(1): 107–171.
JW Singer, ‘The Reliance Interest in Property’ (1988) Stanford Law Review 40: 611–
751.
ESoja, Seeking Spatial Justice (University of Minnesota Press 2010).
L Spitz and EM Peñalver, ‘Nature’s Personhood and Property’s Virtues’ (2021)
Harvard Environmental Law Review 45: 67–98.
LS Underkuffler, ‘The Holy Grail of Progressive Property’ (2020) Cornell Journal of
Law and Public Policy 29: 717–735.
Rachael Walsh, Property Rights and Social Justice: Progressive Property in Action
(Cambridge 2021).
K Wyman, ‘Should Property Scholars Embrace Virtue Ethics—A Skeptical Comment’
(2009) Cornell Law Review 94: 991–1008.
Open Access This chapter is licensed under the terms of the Creative Commons Attri-
bution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes were
made.
The images or other third party material in this chapter are included in the chapter’s
Creative Commons license, unless indicated otherwise in a credit line to the mate-
rial. If material is not included in the chapter’s Creative Commons license and your
intended use is not permitted by statutory regulation or exceeds the permitted use,
you will need to obtain permission directly from the copyright holder.
CHAPTER 8
Conclusion: Property’s Placelessness
Abstract The closing chapter recaps the book’s objectives, which were to
determine property’s origins, now identified in pre-feudal landscape, recover
the spatial parameters of the theories of Locke, Blackstone and Marx, which
are foundational to classical property theory, and highlight the process of
converting landscapes to property as an exercise in spatial injustice that is
facilitated by the law. This process was not linear or progressive, in response
to land’s environmental limits, but executed through enclosure, displacement
and colonisation. As a result, the chapter contends that a legal geographical
perspective reveals that property is based on detachment from place, and this
placelessness has implications for sustainable land use today.
Keywords Landscape · Placelessness · Legal geography · Spatial injustice ·
Property
This book has expanded the critique of property, situating property’s origins
not in Lockean political economy, but in prefeudal landscape, a matrix of
custom, commons and land use. By incorporating landscape and its relation
to property in the analysis of the conceptualisation of land in the common
law, I considered the spatial implications of the classic hallmarks of property—
individual, exclusive and abstract tradeable rights—through an examination
of the contributions of foundational thinkers on property—Locke, Blackstone
and Marx. In particular, I assessed Marx’s ecological critique of property rights
and land in legal geographical terms.
Property diverged from its collective place-based origins, not as a result of
a linear evolutionary process, or a response to natural changes in the physical
world, but rather as a deliberate policy choice, executed through enclosure,
© The Author(s) 2023
A. Byer, Placing Property, Palgrave Socio-Legal Studies,
https://doi.org/10.1007/978-3-031-31994-5_8
65
66 A. BYER
colonisation and displacement. These practices were facilitated by the common
law system as it gradually retreated from grounded perspectives on land in
favour of abstract rights that were spatially unjust in effect. When landscape
was homogenised, its distinctiveness was ascribed to individuals as the force
behind acceptable land use rather than the community–environment dynamic;
when its social functions were externalised, it became capable of exclusive
possession, as other uses of the land become burdens, privileges or embellish-
ments, permissible only at the discretion of the landowner when previously
intrinsic to the land’s character; and when it was severed from nature or
dephysicalised, landscape transcended its natural limits, becoming alienable
and tradeable as a commodity to one and all.
The scale of land dispossession and the acceleration of environmental degra-
dation have concentrated themselves within the last two hundred years of
human existence, coinciding with property’s ascendance. But the spatially
unjust effects of the enclosure of the commons, plantation monoculture,
Native genocide and slavery in the longue duree are easily obscured by the
law’s neutral conceptualisation of property rights for sale on the global market.
While property has been limited and adapted over the centuries, its central
features remain, and continue to resist emplacement, valuing placelessness
above all else.
The law regulates the use and access of land, and so plays a vital role in
sustainable land use. However, the law defines land in terms of ownership,
which is detached from the physical reality of land, land-based relations and
functions that relate to people, species and ecosystems. This detachment has
served to distort the understanding of land, which is ironic, since property
originally encompassed socio-cultural and ecological functions of land when
it was integrated with landscape. Property as currently configured therefore
constrains our ability to see land beyond ownership, eschewing such insights
in favour of technical solutions that are State-driven and entrench commercial
and elite interests in land. Yet, we cannot transcend the limits of land. Property
rights have stimulated industry, advances in technology, as well as the accumu-
lation of wealth and the distribution of benefits to society. However, property
rights have arisen in undemocratic and ecologically destructive circumstances
that continue to threaten sustainable land use today, welcoming all benefits of
land use while transferring the costs of private ownership as externalities to the
wider public. This is not tenable, and we have to contend with the implications
of conceiving property in isolation from the landscape.
Landscape is an antidote to this thinking because it offers a counternar-
rative to the homogenising, universalising and interchangeable nature of
property rights. Acknowledging dynamic, evolving, non-ownership interests
in land offers a perspective that embraces land in all its dimensions, aligning
with the reality of diversity in people, ecosystems and biota.
When land is treated as abstract space by the law, there are profound impli-
cations for communities, ecosystems and planetary boundaries. Ownership is
too narrow a filter for defining and managing land when land security is of
8 CONCLUSION: PROPERTY’S PLACELESSNESS 67
global concern. Re-engagement with the landscape could offer a comprehen-
sive and materially relevant understanding of the land, and challenge property’s
placelessness.
The deficiency of this conceptualisation of land as property however is
only fully evident through a legal geographical lens. Embedding law within
its geographic reality emphasises the absence of landscapes, through the alien-
ation of peoples and environments that contribute to and define the land in
all its complexity. A critique of property law thus necessitates this examination
of the divergence between landscape and property.
Open Access This chapter is licensed under the terms of the Creative Commons Attri-
bution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes were
made.
The images or other third party material in this chapter are included in the chapter’s
Creative Commons license, unless indicated otherwise in a credit line to the mate-
rial. If material is not included in the chapter’s Creative Commons license and your
intended use is not permitted by statutory regulation or exceeds the permitted use,
you will need to obtain permission directly from the copyright holder.
Index
A
Absolute right
absolutist, 28
Abstract logic
abstraction, 15, 54, 55
Africa
Africans, 44
Alienability, 12, 13, 15, 61
Americas, 3, 19, 44
America, 19
Amerindian, 45, 46, 48
Anglo-Saxon, 8, 10, 11, 33
B
Bentham, Jeremy, 34, 48
Blackstone, William, 4, 15, 27–34, 54,
55, 62, 65
British Empire, 19, 46
C
Capitalism
capital, 20, 37–39, 44, 47, 48, 55
Caribbean, 3, 43–48, 55
Climate change, 3
Colonialism, 40, 46
Common heritage of mankind, 61
Common law, 2–4, 7, 10, 13–15, 17,
25, 29, 31–33, 35, 48, 54, 63, 65,
66
Commons, 12, 14, 18–25, 28, 32, 33,
54, 55, 65, 66
Custom
Customary law, 9–11, 14, 15, 18, 30,
31, 61, 63, 65
D
Dephysicalisation, 37, 43
Dunbar-Ortiz, Roxanne, 24
E
Enclosure, 14, 18–21, 23, 24, 29, 32,
34, 65, 66
Enclosure Acts, 33, 54
England, 2, 8, 10–14, 18–21, 24, 28,
31–33, 47, 48, 54, 55
Exclusion, 19, 27, 28, 60
F
Famine, 10, 41–43, 48
Feudalism, 9, 54, 55
feudal pyramid, 30, 32
G
Graham, Nicole, 4, 8, 12, 13, 18, 19,
29, 32, 33, 38–40, 43, 44, 46, 48
H
Hardin, Garret, 54
Hohfeld, Wesley Newcomb, 34, 48
© The Editor(s) (if applicable) and The Author(s) 2023
A. Byer, Placing Property, Palgrave Socio-Legal Studies,
https://doi.org/10.1007/978-3-031-31994-5
69
70 INDEX
Homogenisation, 17
I
Improvement
Improvement theor y, 19, 20, 24, 33,
54
Indigenous, 4, 20, 23–25, 56, 61
Ireland, 3, 10, 40–43, 55, 62
L
Labour theory of value, 18, 27
Land, 1, 2, 8, 9, 11, 13, 19, 21, 31, 55,
63
Landscape, 3, 4, 8–10, 12–15, 17, 19,
23, 24, 30, 32, 34, 38–40, 42, 43,
45, 47–49, 54–56, 61, 63, 65–67
Legal geography, 1, 3, 4, 48, 62
Locke, John, 4, 7, 15, 17–25, 27, 54,
65
M
Marx, Karl, 4, 15, 37–44, 48, 49, 54,
55, 65
Metabolic rift, 38, 55
Monoculture, 42
N
Native
Native American, 19
Nature, 2, 9, 12, 15, 18–21, 23, 25, 28,
38–40, 43, 44, 46, 48, 49, 55, 66
Norman
Norman conquest, 8, 10, 12, 14, 29,
30, 32, 33, 55
O
Olwig, Kenneth, 8–10, 12–15, 20, 32,
44, 56, 61
Ownership, 1–3, 8, 10, 12–15, 17–19,
23, 29, 30, 32–34, 38, 39, 44, 47,
48, 56, 59, 60, 62, 63, 66
P
Place, 3, 8, 12–15, 19, 22, 32, 35, 43,
47, 55, 61, 62, 65
Placelessness, 65
Progressive Property, 59
Property, 1–4, 7, 8, 11–13, 15, 17–25,
27–34, 37–40, 42, 43, 46–49,
53–55, 59–63, 65–67
R
Rose, Carol, 25, 28, 54, 62
Rundale, 10, 40, 41, 43
S
Slave colonies
slavery, 43, 44, 47
Spatial justice, 4, 54, 60
Spatial logic, 15
T
Tenures, 3, 30, 31, 54
Tragedy of the Commons, 54
W
Wales, 20
Waste, 18, 20, 21, 25
Wilderness, 23–25, 56
