Question:
Discuss about english land law has strayed too far from lockean principles of property?
Answer:
Introduction
Land law in the UK has a prolonged history that changed over the years. The theories and principles that were held to be logical and equitable once have changed according to the evolving nature and situation of the country. The country has experienced a number of theories and principles proposed by eminent philosophers and economists over the years that has influenced and shaped land law in the country. One of such influential political philosophers was John Locke (1632 – 1704). His one of the most promising and revolutionary claim was depicted in his writing titled as “Two Treaties of Government”. In his writing, he claimed that men by nature are free and equal. This was against the then contemporary belief that God has made all people subjects to a monarch by nature. His main arguments were that a man by nature has a few rights with respect to life, property and liberty and are not naturally subject of any monarch[1]. He further claimed that these rights are fundamental in nature and are independent of any law of any particular society. He brought forward a nexus between common people and the government by claiming that people transfer some of their rights to a legitimate political government in order to ensure that they get a suitable and stable form of life. This transfer depended on a social contract between the common people and the government. The land law in the UK has evolved and went through drastic changes over the years. The principles and theories that once formed the basis of this evolution have been dispensed with and replaced by newer theories and principles. Significant changes were noticed in the twentieth and twenty first centuries that provided a shape to the present land laws of the country[2]. During this period, several legislations were passed by the UK parliament in the form of various acts to trigger a shift from centralization of political and legislative powers. This essay makes an attempt to define and describe these changes in the legislative framework and to arrive at a logical conclusion about the nature and reasons for the shift of the legislative framework from the theories proposed by Locke[3].
To have a clear understanding of the changes that took place in the legislative arena, we need to have an in-depth knowledge and analysis of the theories proposed by John Locke in his writings. As mentioned earlier, his main claim was that man is born free and has a few natural rights arising out of his birth. People transfer some of these rights to the political government so that they run the country in a proper manner and ensure that these rights of men are preserved[4]. Such transfer of rights poses an obligation on the government to impart6 their duties that are governed by a social contract between the people and the government. This essay will focus on the rights of men with respect to property. As a free being by virtue of birth, every man and woman is entitled to enjoy their rights to own a property and land. According to Locke, it is the duty of the government to ensure that this right is protected. In situations where the government is unable to ensure protection, the people should have the right to replace the existing government with a new one[5]. In essence, a few important points made by Locke must be discussed.
Natural Law and Natural Rights of the People
The concept of natural law and natural rights of the common people forms the basis of the principles of property as proposed by Locke. The concept of natural law mentions that there are certain moral truths that are applicable to every human being irrespective of the place of where they are born or live. There was always a contrasting difference between the law made by nature and the conventional laws of a particular place. This formed the basis of the distinction between natural law and positive law. This distinction can be explained by referring to the Christian traditions that was prevalent in the UK. According to the contemporary belief, the law revealed by God and eminent prophets was a source of law. Natural law, on the other hand was derived from reasoning and applied to all people. The word of God was spread through the “Ten Commandments” and applied to those who were bound to follow them and to whom they were revealed. The theory of Locke separated itself from this convention in the form that all people had equal rights as to property naturally. Locke emphasised on the natural rights of common people that deviated itself from the religious paradigm[6]. Some of the scholars recognized that Locke believed in a general duty to preserve the mankind and included the concept of charity in the form of helping others to procure their subsistence. Locke’s position on natural law is a much-debated topic and requires a critical analysis of the conceptions that were prevalent before Locke[7]. A comparison of intellectualism and rationalists views has to be sketched in order to arrive at a conclusion as intellectualism depends on the will of the God relating to right and wrong and stipulates that this should be followed merely due to the fact that these are the will of the Lord[8]. On the other hand, rationalists argue that the content and binding force of morality can be explained without referring to God and depends on the conscience of an individual. Locke was a rationalist and believed that natural law is based on morality of people because people had the element of reasoning.
Principle of Property
The theories and principles proposed by Locke with respect to property are considered to be one of his major contributions to the political thought. However, this theory is the most criticized one. Locke’s theory on property has been interpreted in several ways by various authors and experts. In his writing titled “Second Treatise on Government” (Chapter 5), Locke explained in details that individuals are entitled to acquire full property rights of movable and immovable parts of the earth in a state of nature with the elements of government being absent. He was of the view that common people have the natural right to acquire property in a legitimate manner and it is the duty of the government to respect such natural rights of human beings[9]. Property rights are the rights to things and full ownership to use such property in a manner the owner wishes without harming other people and their rights. A notable case in this regard in the case of National Westminster Bank v Ainsworth. This concept also includes exclusion of other persons from using such property so acquired naturally, use of such property with other people on mutually agreed terms, to renounce or waive one’s rights in the property and the transfer of the entire bundle of rights from one person to another. Locke argued that land was provided to men by God in common parlance and they had the right to acquire parcels of it in a natural way[10]. This was against the prevalent concept of monarchy under which common people are subjects to a monarch and do not naturally carry the right to acquire any land without the approval of the monarch. According to Locke, land was provided naturally and no one had any extra right of it over the others, i.e. everyone had equal rights of ownership.
The concept of “State of Nature” proposed by Locke is also important to analyse his theory on property. According to Locke, state of nature can be seen in two different scenarios. The first scenario states that when there is a lack of a common judge with authority, all people are said to be in a state of nature. According to the second scenario, when people live according to reason without any superior to judge them, they are said to be in a state of nature. A common conclusion was derived from the above two scenarios that states state of nature exists where there is no proper and legitimate political authority to judge disputes among common people by resorting to the law of reason. It can be said that the state of nature is distinct from a political society where there are legitimate governments that operates within a definite legislative framework[11]. Therefore, it can be said that the theory of state of nature is closely related to the theory of natural law since the latter recognizes the natural rights of people and terms them as free and equal[12].
As mentioned earlier, Locke’s theory on property was vastly criticized. Eminent philosopher C. B. Macpherson opined that Locke was a defender of unrestricted capitalist accumulation. However, over the years, the society and its culture changes and so did the laws related to land and property. The meaning, function and existence of private property changes as the society were divided into different classes. This segmentation denied the fact and importance of equality and the natural right to own a piece of land merely by virtue of birth. One of the main reasons behind this was the growth in the population[13]. The institution of private property changed as dominant classes exerted their influence on the acquisition of private properties. This situation gave rise to one of the most important questions as follows; “What are the principles that decide who can own what?” A major reason of this shift is the English revolution that took place in the seventeenth century. Monarchy was established during this time and common people were answerable to the throne. Gradually, Parliament was established in the country and several legislations were passed by it in order to oversee and regulate matters related to ownership of land and private property. A significant case in this regards is Pierson vs. Post (1805). These changes in the legislative framework resulted in the formation of the modern land laws. Gradually it became very important to define the speciality of land and the features that make land special. Land gained importance as a prime factor of production. The industrial revolution changed the entire backdrop on which the importance of land was evaluated. The revolution changed the business environment and this was very much evident with the evolution of limited liability companies that provided an effective business structure to businesses. In order to carry on manufacturing activities, a business needed premises to set up factory and warehouses[14]. On the other hand, common people required land to build homes for residing purposes. All these factors extended the scope of demand of land. Therefore, a need to reform land laws was felt in order to accommodate these requirements.
The core element of land law is the right to use land. In essence, it is very important to protect is right to use such a property. According to the modern concepts, there are three important factors that determine the right to use land, namely the elements of the right, acquisition of rights and lastly defences available when the right is vested in someone else. The legal right to use land makes it necessary to have a set of rules that are made applicable for acquiring and using the right to use a particular land[15]. According to McFarlane, land carries with itself a lot of importance as it is permanent in nature and its usefulness is not lost over the years of usage unlike other objects[16]. The usefulness of land rises with every passing day as the amount of land available is limited and the population of the world is ever increasing. Therefore, land law has evolved and has been made flexible in order to fulfil the present objectives of the world. Changes in land law in this regard has strayed away from the principles and theories proposed by Locke as at that time land was available in abundance as compared to the population.
Land law was revolutionized with the concept of registration of land. After formulation of the registration requirements for land, the distinction between registered and unregistered land became prominent and so did the concept of the right to use land. Registration of land in the name of the owner gave the owner the right to use the land in a manner deemed fit by him. Registration requirements gave a suitable solution to disputes related to the right to use lands. Registration was also necessary while selling a particular piece of land. In cases were land is to be sold, the land is required to be legally registered in the name of the seller. After the sale takes place, the land is required to be registered in the name of the buyer so that he is able to use the land without facing any legal hassle related to the right to use such land. Another important concept that evolved is leasing of land[17]. In cases where a person requires using a land but does not have enough money to buy a piece of land, he tries to take a land on lease. The concept of leasing a land involves the transfer of the right to use a piece of land for a particular span of time. Such transfer is affected by the help of lease agreement that is executed between the lessee and the lessor. In cases of lease, the title or ownership of the land is transferred for a limited period of time in exchange of a leasehold rent that is to be paid by the lessee to the lessor for using the rights so transferred. At present, registration of land is affected by the Land Registration Act of 2002. Therefore, it can be seen that registration helps in management of land in a proper manner and becomes an effective tool in disposing of disputes related to land and provides protection to the registered parties[18].
Property rights can be defined as a bundle of decision-making rights related to a particular property. This right involves the concept of protection of the property from others. The advantages and utilities derived from a particular piece of land belong to its owner who fulfils the registration requirements as stipulated under the Land Registration Act 2002. It can be seen that the theories promoted by Locke has become out of context in the present situation. Land laws and right to use and acquire land has evolved and is different from the concepts of Locke. Ownership and title to land in the present situation is different from the concepts of Locke. At present, land can be acquired by only a few limited manners, such as buying of land, leasing of land and through inheritance. The concept of equality of law and equal treatment of every human being are enforced through the Human Rights Act 1998 (HRA) in the UK. The concept of equality has shifted from the right to acquire and own a land to other fundamental rights made available under the HRA[19]. There was a change in the legislative structure of the country when UK decided to become a member of the European Union (EU). The European Communities Act was passed by the UK parliament in the 1972 that facilitated the integration of the EU law within the legislative structure of the UK. Changes in legislations made transfer of property much more complex and different from the simple concepts proposed by Locke[20]. Land is not available to a person by virtue of his birth and the legal right to use the property does not belong so someone merely on the fact that land should be available to everyone naturally[21]. As mentioned earlier, the population of the world has increased manifold and the availability of land has become limited. Therefore, it has become impossible to accommodate everyone with a piece of land on the earth. Money plays an important role in acquiring rights to use a piece of land. The concept of equality to acquire a private property has shifted to equality before the law so that everyone is treated in an equitable manner as in the case of Mabo vs. Queensland (1992) as decoded by the High Court of Australia.. The concept of monarchy and centralization of powers have also shifted towards democracy. With the establishment of the UK parliament, passing of legislations with the consent of the duly elected representatives of the people takes place in a harmonized manner. However, the absence of a codified constitution is not felt as the doctrine of supremacy of the parliament is in effect and the parliament ensures protection of the rights of the people. Therefore, a major shift has taken place in the entire legislative framework. Land laws are no exception. With the advent of the legislative reforms that took place after the industrial revolution, land laws have changed drastically[22]. The situation after the revolution changed as industrialization took the core attention. Overall development of the country was the main focus of the government and steps were taken by it accordingly. Manufacturing and development of business domestically and internationally were the primary areas of development. To attain these objectives, acquisition of land for industries became imminent. As a result, changes in the land laws were incorporated in order to facilitate growth[23]. Eventually the concept of Locke became outdated and gradually started to faint away. The Law of Property Act was enacted in the year 1925 and changed the concept of right to use and the right to acquire a piece of land. The concept of natural right to property was replaced by the utilitarian theory. According to the utilitarian theory, property right is a positive right that is created instrumentally by the law to achieve much greater and wider social and economic objectives. Such a positive right is prescribed by the state, i.e. the country and the legislature. The most important element of this positive right is that it is both provided and protected by the state. According to Jeremy Bentham, the total or average happiness of the society depends on their rights to use and transfer objects of value or interest. The utilitarian theory denied the existence of natural rights of human beings to own land by virtue of birth. It was argued that state is the sole source of all laws and rights. This has been proved and implemented by giving it a proper structure[24]. Laws are passed by the parliament that consists of representatives elected by the common people in a democratic manner. Legislations are passed by getting approval from both the houses of the parliament. The entire political system is divided into three branches, the legislature, the judiciary and the executive as decided in the case of Powell vs. McFarlane (1977). All the three branches have their distinct duties and powers. Therefore, the state has become the sole source of any kind of law. Therefore, the entire legal system and the laws related to land has evolved and changed from the concepts and theories proposed by John Locke[25].
Conclusion
Land law in the UK has a drawn out of history that changed consistently. The land law in the UK has created and experienced radical changes consistently. The thought of natural law and trademark benefits of the fundamental people outlines the reason of the gauges of property as proposed by Locke. This encircled the reason of the refinement between natural law and positive law. The theory of Locke segregated itself from this custom in the structure that all people had rights as to property by virtue of their birth. Locke underlined on the consistent benefits of people that veered off itself from the religious perspective. Locke was a realist and assumed that customary law relies on upon moral nature of people. Property rights are the rights to things and full proprietorship to use such property in a way the proprietor wishes without harming different people and their rights[26].
By bleeding edge thoughts, there are three basic variables that choose the benefit to use land, particularly the segments of the right, obtainment of rights lastly monitors available when the benefit is vested in someone else. The authentic right to use land makes it essential to have a course of action of precepts that are made material for acquiring. Changes in law in such way has strayed a long way from the gauges and speculations proposed by Locke as around then land was available to rich when stood out from the masses. Introducing the concept of land registration changed the whole scenario[27]. Registration of land for the purpose of the proprietor gave the proprietor the benefit to use the land in a way regarded fit by him. Registration essentially gave a suitable response for open deliberation related to the benefit to use lands. Registration was moreover basic while offering a particular area package. The thought of leasing a region incorporates the trading of the benefit to use a land bundle for a particular scope of time[28]. At present, selection of territory is influenced by the Land Enlistment Act of 2002. Property rights can be described as a store of decision-making rights related to a particular property. This benefit incorporates the thought of protection of the property from others. Land laws and right to use and acquire land has created and is not exactly the same as the thoughts of Locke. Proprietorship and title to touch base in the present situation is not exactly the same as the thoughts of Locke. At present, land can be obtained by only a couple compelled conducts, for instance, obtaining of range, leasing of region and through inheritance. The thought of correspondence has moved from the benefit to secure and own a range to other fundamental rights made open under the Human Rights Act 1998. In this way, changes in the land laws were joined in order to support improvement. The thought of typical right to property was supplanted by the utilitarian theory. By utilitarian theory, property right is a positive right that is made instrumentally by the law to fulfil substantially more critical and broader social and monetary destinations. The utilitarian theory blocked the vicinity from securing basic benefits of people to have land by integrity of origination. It was battled that state is the sole wellspring of all laws and rights. Thus, evolution of the land laws took place from the previous theories proposed by Locke.
References
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[1] Constitution.org, ‘John Locke: Second Treatise of Civil Government: Chapter 5’ (2016) <http://www.constitution.org/jl/2ndtr05.htm> accessed 1 March 2016.
[2] Compilerpress.ca, ‘Property Rights in the History of Economic Thought: From Locke to J. S. Mill’ (2016) <http://www.compilerpress.ca/Competitiveness/Anno/Anno%20West%20Property.htm> accessed 1 March 2016.
[3] John W. Danford and Gopal Sreenivasan, ‘The Limits of Lockean Rights In Property.’ (1997) 91 The American Political Science Review.
[4] Locke, John. Second Treatise of Government: An Essay Concerning the True Original, Extent and End of Civil Government. John Wiley & Sons, 2014.
[5] ‘Coventry University Repository for the Virtual Environment (CURVE)’ (2016) <https://curve.coventry.ac.uk/open/file/7c64955e-a761-193b-daf7-a4b03dccd6df/1/Theories%20of%20private%20property.pdf> accessed 1 March 2016.
[6] Engagedscholarship.csuohio.edu, ‘The Seventeenth-Century Revolution in the English Land Law’ (2016) <http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1607&context=clevstlrev> accessed 1 March 2016.
[7] Ashcraft, Richard. Locke’s Two Treatises of Government (Routledge Library Editions: Political Science Volume 17). Routledge, 2013.
[8] Google Books, ‘Land Law’ (2016) <https://books.google.co.in/books?hl=en&lr=&id=uoQlCgAAQBAJ&oi=fnd&pg=PP1&dq=LAND+LAW%3B+TEXT,+CASES+AND+MATERIALS+3RD+EDITION.+BEN+McFARLANE,+NICHOLAS+HOPKINS+AND+SARAH+NIELD.+&ots=aFvz_8W11A&sig=yOioDWaTU_048v5TbcNSnwA7JMs#v=onepage&q=Locke&f=false> accessed 1 March 2016.
[9] E-lawresources.co.uk, ‘Land Law’ (2016) <http://e-lawresources.co.uk/Land/Land-law.php> accessed 1 March 2016.
[10] Moore, Adam D. “Lockean Theory of Intellectual Property Revisited, A.” San Diego L. Rev. 49 (2012): 1069.
[11] Jim.com, ‘Natural Law And Natural Rights’ (2016) <http://jim.com/rights.html> accessed 1 March 2016.
[12] Inbrief.co.uk, ‘Interests and Estates in Land and the Law’ (2016) <http://www.inbrief.co.uk/land-law/interests-and-estates-in-land.htm#> accessed 1 March 2016.
[13] Alex Tuckness, ‘Locke’s Political Philosophy’ (Plato.stanford.edu, 2005) <http://plato.stanford.edu/entries/locke-political/#StaNat> accessed 1 March 2016.
[14] Kevinboone.net, ‘Kevin Boone’s Web Site’ (2016) <http://www.kevinboone.net/history_of_land_law.html> accessed 1 March 2016.
[15] Landlaw.org.uk, ‘LAND LAW INFORMATION’ (2016) <http://www.landlaw.org.uk/> accessed 1 March 2016.
[16] ‘John Locke On The Possession Of Land: Native Title Vs. The ‘Principle’ Of Vacuum Domicilium’ (2016) <https://digital.library.adelaide.edu.au/dspace/bitstream/2440/44958/1/hdl_44958.pdf> accessed 1 March 2016.
[17] Legislation.gov.uk, ‘Law of Property Act 1925’ (2016) <http://www.legislation.gov.uk/ukpga/Geo5/15-16/20/contents> accessed 1 March 2016.
[18] ‘LOCKE ON PROPERTY CHAPTER 5, SECOND TREATISE ON GOVERNMENT’ (2016) <http://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/166lockeonpropertynotes.pdf> accessed 1 March 2016.
[19] Legislation.gov.uk, ‘Human Rights Act 1998’ (2016) <http://www.legislation.gov.uk/ukpga/1998/42/contents> accessed 1 March 2016.
[20] ‘Lockean Theories Of Property: Justifications For Unilateral Appropriation’ (2016) <http://file:///C:/Users/Piku/Downloads/lockean-theories-of-property-justifications-for-unilateral-appropriation%20(1).pdf> accessed 1 March 2016.
[21] Sparknotes.com, ‘Sparknotes: Locke’s Second Treatise On Civil Government: Chapter 5: Of Property’ (2016) <http://www.sparknotes.com/philosophy/locke/section4.rhtml> accessed 1 March 2016.
[22] The Heritage Foundation, ‘The Economic Principles Of America’S Founders: Property Rights, Free Markets, And Sound Money’ (2010) <http://www.heritage.org/research/reports/2010/08/the-economic-principles-of-america-s-founders-property-rights-free-markets-and-sound-money> accessed 1 March 2016.
[23] Scholarship.law.cornell.edu, ‘Takings, Regulations, And Natural Property Rights’ (2016) <http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2934&context=clr> accessed 1 March 2016.
[24] Mossoff, Adam. “Saving Locke from Marx: The labor theory of value in intellectual property theory.” Social Philosophy and Policy 29.02 (2012): 283-317.
[25] ‘Locke’S Liberal Theory Of Public Reason’ (2016) <http://www.gaus.biz/LockePublicReason.pdf> accessed 1 March 2016.
[26] Jonathan Peterson, ‘LOCKEAN PROPERTY AND LITERARY WORKS’ (2008) 14 Legal Theory.
[27] Locke, John. “John Locke.” Information Theory (2014): 52.
[28] Humphries, Simon James. Towards a hybrid theory of Property Entitlement, from a combination of Lockean and Humean elements. Diss. King’s College London, 2015.
