The Unbearable Lightness of Property - alastairhudson.com

However, that is not simply to draw a distinction between those claims which are
recognised by law and those which are not. There may be claims recognised by law
whose provenance as ‘rights’ we may question. At one level it might be that the law’s
willingness to enforce a particular claim is problematic either because the detail of the
law is unclear or because a rule is considered to be anachronistic and unlikely to be
enforced in future. 122 At another level the objection might be political. In relation to
the allocation of claims to property in English law we might question the very
existence of rights in private property as opposed to more redistributive mechanism
for recognising claims to property. 123
There is then the problem of where these ‘rights’ are said to originate. In truth, legal
rights are claims which are recognised by the courts 124 as being rights. The word
‘recognised’ in this context is revealing. Some ancient theorists of the common law
suggest that judges do not make law rather they are merely instruments for the
recognition of laws which are in some way innate, whether derived from god or some
grundnorm of principle. 125 In this sense “recognition” is meant in the sense of
uncovering or re-discovering, not creating anew. Recognition is carried out by judges
who are themselves recognised as having the authority so to do because of the
qualifications which they have received. This ability which the legal system and its
actors have to confer qualifications on lawyers and judges, the legitimacy to
pronounce judgment and to allocate rights, are all facets of power in those particular
social institutions. 126 For many post-Marxist social commentators many of the
problems of the modern world are bound up with the reduced authority which these
actors are able to command. 127 It is a question of legitimacy in the legal system to
pronounce that assertions have reached a level of recognition as entitlements.
Pseudo-property rights – ‘transferable personal claims’
I considered earlier that property law does recognise as property some phenomena
which in truth constitute only personal claims. Their status as property is said to rest
primarily on their transferability or “separability”; 128 although that does not account
122 Fuller, The Morality of Law.
123 Witness, for example, claims over land rights in Australia on behalf of its indigenous peoples and
claims to and government expropriation of agricultural land in post-colonial Zimbabwe.
124 Alternatively law which has effect as a result of lawyers giving advice to their clients and thus
controlling the activities of those clients for many practical purposes. See the comments on Lord
Browne-Wilkinson in Kleinwort Benson v. Lincoln City Council [1998] 3 W.L.R. 1095 in relation to
the frequent role of the advising lawyer as both accepting decided law as being “the law” and also in
creating a market’s acceptance of what the law would be in a particular context, as considered in
Hudson, Swaps restitution and trusts, Sweet & Maxwell, 1999, xii.
125 Cotterrell, The politics of jurisprudence, Butterworths.
126 Foucault points out the phenomenon of power at this micro-level in all of those bodies who have the
reflexive power to confer legitimacy on their own membership by awarding them the qualifications
which are then recognised in the broader society as entitling them to make definitive pronouncements
on the matters in question: Foucault, The Archaeology of Knowledge, Routledge.
127 See for example Habermas, Legitimation Crisis, Polity, 1988.
128 The latter is the argument considered by Penner, The Idea of Property in Law, Oxford University
Press, 1997, 105.
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