The Unbearable Lightness of Property - alastairhudson.com

crucial distinction between the home and the share is that the home necessarily
embodies those feelings whereas the share merely expresses a value which fluctuates
from time-to-time.
A property law which is insensitive to these sorts of nuances will not be capable of
dealing adequately with the various different circumstances which will be brought
before it. More than that, I shall show that, of course, property law is sensitive to
context in a number of circumstances but, I shall suggest, many of those examples of
relativity advantage commercial interests rather than ordinary uses of property. What
will be important to consider later in this essay is the fact that property, as dealt with
by commercial people in particular in the late capitalist world, does not respond to the
old requirements of tangibility or capability of identification. Property in this new
world order is identifiable primarily by its ability to generate cash flow and not
through any permanence nor the necessity for separation from other property which
has troubled judges in cases like Westdeutsche Landesbank v. Islington. 18
The development of Bauman’s own thought: from modernism to postmodernism
Before leaving the general and delving into the specific, it would be useful to map the
intellectual framework borrowed from Bauman which will underpin this notion of
weight and lightness. Bauman’s work has moved through two clear phases: the first
was his modern phase and the second his postmodern phase. 19
His modern phase drew on three key theorists: Jurgen Habermas, Antonio Gramsci
and Karl Marx. From Marx he took his belief in state socialism and in the inexorable
logic of alienation leading to social change. From Gramsci he took an analysis of the
subtlety with which hegemonic power is established in civil society by means of
communicating a dominant ideology to the populace through the mass media so that
the populace comes to adopt those values as their own. 20 From Habermas he took the
optimism of the latter’s theories of communicative action through which society
would achieve its ideal speech situation constituting a consensus of views on that
society’s values. 21
The modern phase suggested an optimism for social change and for social justice. It
was through the 1980’s in particular that Bauman lost his faith in progress with the
displacement of welfare society in favour of the atomised values of societies based on
monetarist economics. At this time Bauman published his great trilogy of works
which drew striking parallels between the holocaust and the nature of society. 22
Following Freud’s observation in The Future of an Illusion that “every civilisation
18 [1996] A.C. 669. The role of cash flow is considered below particularly in relation to financial
products as items of property in themselves. This is perhaps a distinction between a formalism in
property law and a substantive response to the nature of property in the late capitalist era.
19 An analysis presented most cogently by Dennis Smith in Zygmunt Bauman: Prophet of
Postmodernity, Polity, 2000. On his appointment to the University of Leeds, Prof. Bauman was
required to wrestle with his own disenchantment with the state socialist order in Poland which he had
championed as an officer in the Polish brigades of the Soviet Red Army in the Second World War and
as an academic in Poland.
20 Gramsci, Prison notebooks, Lawrence Wishart.
21 Habermas, Theory of communicative action, Beacon Press, 1982.
22 Bauman, Modernity and holocaust, Polity, 1991.
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