A tale of the land, the insider, the outsider and human rights (an exploration of some problems and possibilities in the relationship between the English common law property concept, human rights law, and discourses of exclusion and inclusion)

This paper examines the interplay between discourses of exclusion and inclusion in the relationship between land law and human rights. It explores the common law conception of property in land and its relationship with the conceptual structure of property before suggesting that the particular form the conception takes in the English common law is problematic as a discourse of exclusion in the light of inclusive human rights considerations. However, further submerged exclusions in law are also explored, suggesting a problematic ideological continuity between land law and human rights law, notwithstanding identifiable surface tensions between them as contrasting discourses. Once the continuity of hidden exclusions is identified, the paper explores the theoretical unity between the deep structure of property as ‘propriety’ and human rights as ‘what is due’, and suggests their mutual potential for embracing more inclusive concerns. Finally, two modest proposals for future theoretical reform are offered: the need for a more anthropologically adequate and inclusive construct of the human being as legal actor, and the need for a more differentiated, context-sensitive formulation of the common law1 property conception, one capable of reconciling conceptually necessary elements of excludability with inclusive human rights impulses.