Lorna Fox O’Mahony, ‘Property Outsiders and the Hidden Politics of Doctrinalism’

Abstract:
Of all areas of law, it is property, particularly as it relates to housing and home, which affects people most consistently and directly. Yet, while people are intensely interested in property, the laws, doctrines, and policies that govern the acquisition, accumulation, management, and transfer of resources variously operate to conceal their effects on (some types of) property subjects. This article explores how the traditional methodologies of property law scholarship, centred on the status quo of established rights, obligations, and duties, and invoking the ‘property values’ of certainty, autonomy, and efficiency, have been applied in English law to prioritize the claims of ‘more propertied’ parties and marginalize the claims of ‘less-propertied’ parties. The article raises questions concerning the role of both property law and property scholarship: is it to understand and make the best out of the available material, to achieve or support change in a progressive (or progressive but incremental) way, or to contribute to, or at least not prevent, progress towards greater substantive equality between property’s ‘insiders’ and ‘outsiders’? In exploring these questions, I reflect on the hidden politics of English property discourse and its effect on the (in)visibility of the property outsider within legal analyses, arguments, and decision-making. Finally, this analysis is related to a series of ‘property problems’ in which more and less-propertied parties compete for ownership or access to resources, with the aims of considering an approach to problem-based property scholarship that spotlights the ‘property outsider’ and reflecting on the implications of this approach for normative arguments invoking ‘property’s values’.

Lorna Fox O’Mahony, ‘Property Outsiders and the Hidden Politics of Doctrinalism’. Current Legal Problems (2014) doi: 10.1093/clp/cuu003. First published online: August 21, 2014.

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