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Doing Justice In Land Law

I truly apologise for the length of this post! I promise it's got a little something for everyone - some social justice considerations, some history and even a little bit of philosophy. Please feel free to read and respond!

The typical student of land law examines land law from a historical-theoretical perspective, usually unknowingly, shaped by not only the political values of the 18th and 19th century legal system, but also incorporating a recognition of feudal law dating back to the Angevin period. In land law, all lawyers remain essentially Blackstonian: we discuss title and ownership and landlordship, and sometimes if we'd read some history we might use words such as 'seisin' and 'dominus' to communicate what we think is important about real property. We use this as the baseline in deciding what kind of interests we need to examine to solve legal problems: so your bank got your son and daughter to sign a document when they got a loan that put a charge on your house? Oh well, it's the banks now that your useless kids are bankrupt (City of London v Flegg, 1988) – you can have some of the excess of the sale, but really the bank owns your house, not you. If you're a woman getting a divorce and your ex-husband had registered his house in your name and you didn't contribute money to the purchase price, it doesn't really matter how long you have been together – you're not getting any money from that house because it doesn't belong to you (Gissing v Gissing, 1971). We use the concept of ownership to shift the burden of proof onto the person claiming an interest to show that they are entitled to some portion of their own home legally – this can be overturned in the interests of 'fairness' but it's a hard threshold for certain types of conservative traditional marriages that persist in the UK even today.

Despite my tone, I think there are some very good reasons for many of these rules. But the critical approach to land law has questioned these basic fundamentals of the student law diet such that we must consider whether we have got things right when it comes to real property.

Firstly, we should consider some of the critical approaches to legal scholarship that have exposed some problems with the law as it stands, before we can move onto evaluating those very critical approaches themselves. For this post I will be drawing heavily on the writing of my ex-tutor Professor Susan Bright and her edited collection with John Dewar 'Land Law' (1998), which I would recommend to anyone interested in these issues, as well as the work of Duncan Kennedy, who I will refer to more extensively below.

Family beneficial interests are not the beginning and end of the story when it comes to our first critical category, gender. Although in history we do sometimes see the fortunes of certain high-born women rise and come to shape the nation's history, it is few and far between. Until the 19th century women were not entitled to hold property under the pernicious doctrine of coverture – women's lands were held by their husband without any beneficial interest on her part. The only way to evade coverture was to have a settlement of property, but despite the freedom this afforded certain wealthy women, this still required what amounted to permission of a male relative or the consent of their husband to confer the estate. In this way women were under the full economic domination of first their fathers and then their husbands, and then occasionally their sons. This erasure of female autonomy, down to even being financially reliant on their male relatives for their basic expenditures as well as relying on them for the maintenance of their estates, meant that from the top of society to the bottom women were tortuously bound in law to men, without possession of their own legal identity.

It is interesting, therefore, to note that there are still many ways in law that women are still bound to the male identity, even after the old patriarchal mechanism of coverture was destroyed. The objective standard often starts from a male perspective: what a reasonable man would do in such a situation. To illustrate what I mean, I turn to the objective standard's effect in criminology. In certain US states there are mandatory minimum citizens as well as recommended tariff charts. These are literally just huge charts by which you follow your finger along the top of the chart to find the relevant crime, then you go down the other side to find what sort of 'context' the prisoner fits e.g. is this a first-time offender, and then you have at the cross-over the range of things that you may subject this offender to. But studies in the UK have shown that as 'scientific' as this approach appears, the consequences for women can be horrific. Baroness Jean Corston's recent report into women's experiences in the criminal justice system shows that treating all prisoners by the male standard, overwhelmingly I believe due to the heightened criminality of men as compared to women and the gender ratio in the UK system, creates unequal end-results. Her report is filled with accounts of women self-abusing in prison, female prison suicides, and it is all linked to this policy of objectivity. Women are typically the sole-providers for their families, and when they are taken away from that context, there are very different results than when men are sent to prison. For mothers, their children are often taken away permanently, regardless of the length of the sentence; for daughters, their mothers might be taken into an institution themselves if she no longer has her family there to provide for her. There is of course always the argument that there are cases where men experience these results too, but it's just not the trend that's backed up by the data, merely exceptions that prove the rule. I (and I'm sure Baroness Carston as well) wish that men were as responsible for their families and children so that I would not have to make this observation, but this is just not true (yet).

I digress, but we must not accept that the 'objective standard' does justice for women in many situations, especially in a subject such as law where a woman has been put ab initio at a disadvantage to her male counterparts by the fact of history.

It is on that note that I turn to the racial elements of critical land law. A lot more has been written about this concerning the American perspective, rather than the English, and there are of course very good historical reasons why this is, as many of the restrictions on race in the UK historically have avoided the stain of positive law, preferring the rather more insidious social controls you find in any unequal society. The litany of cases concerning aborigine rights and African-American rights in the USA, contained in Gregory Alexander's article 'Critical Land Law' (1998) makes for shameful reading, and I quickly summarise a few here from his account to illustrate the point:

Johnson v M'Intosh (1823) – it was found that despite the Native Americans' own records concerning their land rights, the conquest by the colonists had then transferred a superior title to the American government after the Revolutionary War, so as to extinguish their own land rights (found to be only possessory, that is – valid only until a white man came and decided it was his now)

Tee-Hit-Ton Indians v US (1955) – sadly a year after the historic Brown v Board of Education decision granting equality of education to African-American children, it was found that the agreement between the native Alaskans and the American government to have exclusive rights to their timber did not grant any compensation rights to the native Alaskans when the American government decided it was more profitable to use it themselves

It seems to be almost recursive to ask ourselves whether this would have happened to a white community – the answer is of course in the negative. Of course, the black population of America were also subject to restrictive covenants in land to preserve ghettoisation and prevent mixing of races up until the late 1960s, which is still reflected in the neighbourhood make-up of many large American cities. It is actually unclear to me whether, considering the relatively strong doctrine of freedom to contract in this country, one could actually employ such a covenant here, and I will seek to find the answer in time for my next blog post (for now, I would say it has at least become impossible due to the implementation of the ECHR and the Human Rights Act).

In any case, the question arises as to whether we can continue to rely on our current property law system due to the manifest injustices it can wreck on peoples who have already been put at a disadvantage by the system as it once was. To employ a maxim of Duncan Kennedy's from his seminal work 'Critical Legal Studies' (1979), the structures that limit us are not only without us, but within us – the fundamental contradiction in social and legal relations is that we need to interact with other people in order to maximise our own freedom and quality of life, but those very relations are also incompatible with our freedom. Once you accept the existence of a state, in any limited or expansive form, and that there is a basic need for us to organise our social relations to prevent discord, it becomes a question of: what is our alternative?

Firstly, the system we currently have is a mere outgrowing of feudalism, by which it has little to recommend it. In the English form of feudalism, which had a relatively short shelf-life in it's purest form post-Conquest, all the lords of England swore fealty to the Conqueror, who in return swore to uphold many of the Anglo-Saxon customs that had been in place before in addition to some of the elements introduced from the Continent e.g. the concept of knights' service to the uter-lord, and a more united system of taxation. In this societal conception, there was a strict hierarchy that was enforced through the obligations to the king flowing downwards through his top lords to lesser lords and finally villeins. We can see how this fits with modern land law: the way in which there is someone who 'owns ultimately' above all other interests in the land, and who may do with that land as he pleased (it was entirely possible for the king to remove a man's land for not being loyal enough without any recourse to legal controls, much as it was entirely allowed for a lord to distrain the chattels of a man who had not paid his rents). The system was based on honour and fealty. To summarise a rather substantial portion of my degree, the accoutrements of feudalism gradually faded – knights' service became unimportant, the other feudal tenures became unprofitable, seisin became a nebulous concept as the purchase of land became more 'real' – but nonetheless we retain this historical language regarding absolute ownership and, crucially, the difference between possession and ownership to account for the fact that the lord did not actually have to have a huge amount of control over some land to retain the prerogative for services or money due to him.

The later period lends us different lessons about our land law today. Many of the free market ideals that are still embodied today in freedom to contract and to deal with one's own land are a result of the fashion for particular strands of liberalism and political theory in the 18th and 19th centuries, in particular theorists like John Mill. Atiyah describes the 18th and 19th centuries, both here and America, as the hey-day of freedom to contract (in his book 'The Rise and Fall of Freedom to Contract'), and Horwitz ('The Transformation of American Law') describes this tradition as intrinsically bound up with the big corporate interests of the day – freedom to create wealth often became privileged over the freedom to not lose your hand in a dangerous factory, as it was considered undesirable to interfere in the economic interests that were driving the boom times, particularly in America. As time has moved on we have come to recognise a certain social utility in requiring employers to be held to a minimum duty of care towards their employees, but at the base we still recognise that there are some things that are left to the market e.g. the rather excessive benefits that Google offers it's employees because they are seeking to attract top graduates and professionals in certain fields (as well as their massive pots of cash) mean that they are 'nicer' to work for than somewhere like IBM.

There have been attempts by CLS writers to reconsider the way that we organise our society in order to remedy the defects of the common law. One of the most convincing comes from Duncan Kennedy, who advocates a social-republican model whereby private ownership is combined with a commitment to participation and equality within discrete communities, voluntarily formed, which is structurally integrated with the free market and politics, fusing ownership and citizenship, instead of leaving land law in the cold positivist wasteland of law. The government could 'sell' rental housing to joint tenancies by transferring title to current occupiers and allow the interest in the land to be held in joint tenancies (beneficially, perhaps). If someone wants to sell their house, they would get back their investment with a modest interest rate, and the rest would be absorbed back into the joint tenancy, and deposited in a local investment bank for improving common areas, or retiring existing debt. The development bank would retain preemption rights, that is, who may buy the house subsequently. The state here would play a merely facilitative, rather than coercive role.

I do think there are fundamental problems with Kennedy's vision. The first one is to return to the problems of history that I outlined at the start: had this system existed before, there would have been systematic problems with race and gender that would have been greatly exacerbated by this form of common ownership. Are we so confident in our current legal arrangements that we think that ghettoisation and prejudice do not still infect some of our legal institutions? I think that it is a system prone to abuse, no matter how many democratic mechanisms you impose on the thought exercise as intrinsic to this joint-ownership model. The theory itself reeks of socialism, whether or not one legitimates it by paying democratic lip-service. Other similar CLS theories also tend towards this central organisation bent – Singer's social relations model relies on property as a social system of entitlements, which seems to me diametrically opposed to the traditional preservation of individualism inherent to the English system of laws.

In view of this, I for one still remain unconvinced, not least because the lesson of the bureaucracies of the past, that incorporating ownership into our system of politics is a convincing way to create equality. Descartes' architecture metaphor is the most instructive way of considering the common law of land. He wrote in 1641:

'...the buildings which a single architect has planned and executed are generally more elegant and commodious than those which several have attempted to approve, by making old walls serve for purposes for which they were not originally built...those ancient cities which, from being at first only villages, have become in the course of time, large towns, are usually but ill laid out compared to the regularly constructed towns which a professional architect has freely planned on an open plain. Those nations which, starting from a semi-barbarous state and advancing to civilization by slow degrees, have had their laws successively determined, and, as it were, forced upon them simply by experience of the hurtfulness of particular crimes and disputes, would by this process come to be possessed of less perfect institutions than those which, from the commencement of their use as communities, have followed the appointments of some wise legislator. But it is not customary to pull down all the houses to beautify the streets. It would be preposterous for a private individual to think of reforming the state by reforming it throughout and not overturning it in order to set it up amended. Custom soothes the inconveniences.'

I do accept that there is very little to recommend the current way that we organise land law and land law jurisprudence beyond this fear that we are destroying the past for no reason. The primary response I have besides a call to history is that the current system maintains the independence of the free market to determine some landlords as stepping outside the boundaries of law, and otherwise leaving individuals to be granted the fullest autonomy to organise their own affairs. I do, however, foresee a move in land, trust and contract law towards a system where there are different rules for corporations as opposed to private individuals, some sort of commercial context test, that will mean that we can remedy some of the more strange legal problems that result from treating all contracts as essentially the same. This is the best thing that I can think of to do, in view of all the above, in the interests of the best for the most number of people, as justice requires.

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