Reason or Mumbo Jumbo: The Common Law’s Approach to Property

The reasoning in common law cases and in the commentaries built upon them appears nowhere more arcane than when it is dealing with property. It is supposed to be concerned with who owns what, or has rights and responsibilities in respect of which, resources; but it is sprinkled with technicalities and in-bred conceptualisations. This chapter is organized as follows. The second section considers some reactions, in the history of political philosophy and social theory, to these peculiarities of the common law. The third section addresses claims that, within the law of modern property systems and especially those derived from the common law, the concept of property has disintegrated, so that it no longer means anything to say that a person ‘owns’ a resource. The fourth section shows how, despite its technical overlays, the common law does deploy conceptions of ownership. That is the key to the ethical underpinning of common law reasoning in relation to property. The fifth section considers instances of purely doctrinal reasoning. It suggests that what looks like dogma for dogma's sake may, after all, have ethical foundations. The chapter concludes that, at its best, the reasoning of the common law, like other juristic doctrine, represents a specialist variety of social convention whereby the mix of sound property-specific justice reasons is made concrete. Surface reasoning is peculiar to lawyers. Underlying justifications are not.