Discussion and criticisms
Discuss about the Canons of Property Talk, or, Blackstone’s Anxiety.
The main theme of this case is based on the controversial points stated by William Blackstone on the law of property rights. William Blackstone was an eminent English jurist, who has written certain valuable books on the property law such as Commentaries on the laws of England and The Discourse on the study of Law. The commentaries written by him are regarded as one of the influential legal text in common law and many judicial opinions have been included under this book. At this time, many scholars have cited his book for researching on the property law and Blackstone’s definition of property has been used in a common way. Certain discussions and critical evaluation has been made in this report.
Certain conflicts have been taken into place regarding his idea on property with canonical text. According to the view of the canonical texts, all the definitions given by Blackstone are just argumentative moves and there is no exclusive dominion on the property rights like the canonical strategies. The author Carol M. Rose on behalf of the canonical ideas has generated certain supports[1]. According to the author, the canonical strategies have certain consistencies over the property law and confident foundation has been emitted from their discussions over the property. The author has begun his discussion with the Blackstone’s notions on the property and discussed about various argumentative modes on the property law. In his commentaries, Blackstone has stated that “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe”[2]. There are three poses confirmed in this definition such as Blackstone regarding the existence of ownership has made certain complexities[3]. Further, he has tried to resolve all the disputes with the utilitarian moves and focussed on the social usefulness of property. However, at the last instance, it has been observed that he has taken the view of descriptive doctrine. Further, it has been contended by the author that the classic strategies of Blackstone are depending on the three scholarships that are as follows:
- Posing of doubts;
- Utilitarian justification; and
- Doctrinal deflection
However, the metaphoric quality of Blackstone’s idea on property is of exclusive dominion and an argument has been generated from the canonical strategies on properties. The author regarding the notions of Blackstone has made certain critics. According to the author, the law of property by Blackstone is self-evident in nature and the author has mentioned all those stages as exclusive Axiom. The concept of Axiom has put asides the medieval tradition on the property ownership and ignored the concept regarding family ties[4]. Blackstone was aware of the qualification on the exclusive dominion and discus the whole thing from the aspect of feudal system. The views of Blackstone have helped him to understand all the property related tying as a part of the traditional social and political liabilities. He has focussed on the power of the decision maker’s authority rather the power of the owner of the property. The observations made by Blackstone on the properties are quite liberal and he has described the matter in a systematic manner[5]. However, there are certain complexities in his words that can be remarked as nervous sentence that made the definition of property complicated. Further, certain anxieties have been observed regarding the term ownership in the writing of Blackstone. According to the author, Blackstone has failed to understand the direct connection in between the ownership anxiety and exclusive axiom. Blackstone has tried to define all the property related issues from the aspect of metaphysical notions and imposed all the credits to the holy writ. Further, the Municipal Law has been defined as rule of civil conduct that has been imposed by certain supreme power and certain suggestions have been generated regarding the right and wrong of anything.
Canonical strategies
Further, according to the moral principle on property law, the right to property is a bundle of rights that show how to access, use or assign these rights. However, according to the contentions made by Blackstone, there are certain moral principles engraved under the definition of the property. Further, he has stated the property rights as third rights and according to him, property rights are an inherent right and everyone has right over the properties. Further, he has mentioned about the free use, enjoyment and acquisitions power of the individuals regarding the same. The supporters of the Blackstone’s property have revealed the fact that from his definition, he wanted to mean that everyone has the right over their property and they can enjoy the same without any interference[6]. He has mentioned the property right as an absolute right. The term absolute rights mean anything that is antecedent in nature to any state gratitude. However, there are certain limitations of his theory on property rights and therefore, the impacts of all these proposals are quite limited.
Further, it has been suggested by Blackstone that property rights have encroached the scope of public goods to certain extent. According to Ed Feser, when a starving man grabs food from any home, that does not become his property and therefore, it could not be stated that the person has exercise his rights on the property because the same is known as the property of others. On the other hand, if someone takes the benefit from the public goods, it could not be stated that they have any rights over that property, as they are the public goods and they could not form a part of the property rights. Further, certain property rights example of Blackstone has been criticised such as according to him, a property owner can enjoy his rights without any interference[7]. However, in reality, there are certain exceptions to this rule. Certain property rights such as easement rights, leases or mortgages are exercised on the property of others and therefore, it can be stated that a property owner could not exercise all the rights over the property absolutely. This notions have been extinguishes from the definition of Blackstone. Further, Blackstone has failed to explain all the civil actions that can be brought against others. He had failed to realise the application of tortuous liability and therefore, certain terms like actionable claims have been departed from his definition. Further, his concept on the property rights and the nature of the same has also been criticised. According to him, property rights are not just legal rights, but they are moral in nature. His views on the property are quite different compared to that of the Locke’s. According to Locke, human rights are the only moral rights and they are the ancient antecedents in this globe. However, according to the contentions of Blackstone, property rights are moral in nature and certain differences can be observed under his notions regarding the application of property rights over others. Ed Feser has supported this statement and according to him, if certain rights have been given to a man over certain unoccupied property, he has certain rights over this property and he can transfer the same to anyone[8]. Therefore, it can be stated that he gets certain property rights. However, according to the statements of john Locke, here in this case, there is no mention of human rights and therefore, it can be stated that property rights are quite antecedents in nature[9].
Blackstone’s idea on property
However, the notions on property rights have been criticised by the author and he has stated that Blackstone has made certain attempts to describe the property rights from the utilitarian aspect. A owner of a property could not state that he is the absolute owner of a property; he only enjoys certain rights over the property and that can be freeze by the state at any time. Further, no one can claim his labour over a property and therefore, not all the properties could be absolute in nature[10]. Therefore, it can be stated that ownership is not exclusive in nature. Further, certain doctrinal deflections can be observed in the views of Blackstone. The main reason behind the same is that he has failed to exemplify all his theories from the aspect of the utilitarian views and his notions on property have become complicated due to this. He has made certain layers over the enjoyment of rights and stated about the positive impacts of possession over the property.
Conclusion:
However, the modern approach on the property has been changed and it has been observed that his doctrinal deflection theory has a small effect on the current property law. Further, the utilitarian mentality has made certain provisions of property law complicated in nature. Additionally, the layers of rights are also criticised. However, his theory has guide many scholar to certain extent and ownership rights have helped to identify the absolute nature of the property rights.
References:
Blackstone, William. “Commentaries on the Laws of England: Introduction: Section the First: On the Study of Law.” JL 4 (2014): 207.
Brewer, John, and Susan Staves. Early modern conceptions of property. Routledge, 2014.
Bridge, Michael. Personal property law. OUP Oxford, 2015.
Feser, Edward. “Freedom in the Scholastic Tradition.” The Oxford Handbook of Freedom (2018): 176.
Ginzberg, Eli. The institutions of private law and their social functions. Routledge, 2017.
Hunter, Kerry L. “Rights-based theory and contemporary political challenges: A fresh reading of Locke in light of Bentham and Burke.” NZJPIL 14 (2016): 209.
Mazor, Joseph, and Peter Vallentyne. “Libertarianism, Left and Right.” The Oxford Handbook of Distributive Justice (2018): 129.
Nichols, Robert. “Theft is property! The recursive logic of dispossession.” Political Theory 46.1 (2018): 3-28.
Ratnawati, Vince, and Mohamad Ali Abdul Hamid. “The moderating effect of managerial ownership and institutional ownership on the relationship between control right and earnings management.” Australian Academy of Accounting and Finance Review 1.1 (2017): 69-85.
Rose, Carol M. “The law is nine-tenths of possession: an adage turned on its head.” Law and economics of possession(2015): 40-64.
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