Discussions
Discuss about the Property Law for Canons of Property Talk and Blackstones Anxiety.
The subject matter of this paper is to discuss, analyse, criticise the point of view between Blackstone’s property law and Canon’s property talk, and come to certain conclusion to this effect. There were various jurists in England who were propounded various theories on the property related civil rules and policies. The name of William Blackstone has been glittered among those. Blackstone plays an important role in this subject and his written version of Commentaries on Law of England had assisted many scholars in their research program on the property law. The main positive effect of the commentaries is there are certain important suggestions and citations have been made by in that helps to understand the basic facts of the property related facts and substances[1]. However, certain criticisms have been made against the rules prescribed by Blackstone in subsequent event and property law has been discussed from the canonical point of view. Further, it has been stated that this paper has discussed about possible aspects of property rights.
William Blackstone has described the property rights from certain viewpoints and he has produced certain evidences in this behalf. However, certain conflicts have been generated in this case and many canonical scholars have criticised the ideologies of Blackstone. Considering various points from the canonical ideas, it can be stated that the canonical supporters have alleged that Blackstone’s discussion on the property is quite argumentative and he has failed to reveal any exclusive dominion on the property rights[2]. It has also contended that the canonical strategies can provide a definite significance on the various property rights. Amongst various supporters of canonical strategy, Carol M Rose is a glittering name who has revealed certain reasons for his supports to the canonical theories[3]. According to him, certain consistencies can be observed under this theory regarding the property rights and certain protestations can be observed against the utilitarian approach of Blackstone’s property rights. From the very inception of his theory, Blackstone has stated that rights on property are those rights those could not be strikes down and no one can use or enjoy the rights except the original owner of the property. Blackstone has defined the property rights as sole and authoritarian authority of the humankind that can be extended over the other things[4]. Further, according to him, the rights could be served to the human beings only and they can enjoy it but no one else. In his theory, Blackstone has extended the scope and application of the ownership of property. According to the views exposed by Blackstone, it can be stated that he has concentrated over the social character of the property and in this case, he has given certain essential elements of the property rights that are supposed to support his views. Considering the views of Blackstone, it can be stated that he has defined all terms based on the descriptive doctrine. The elements come out from the doctrines of Blackstone can be categorised as follows:
- Pretension of doubts;
- Utilitarian justification regarding his doctrines; and
- Doctrinal deflection
Criticism
Blackstone has defined and discussed all his property related issues from the aspect of the allegorical quality and it has been observed that certain exclusive dominion has been defined in the definition of Blackstone over the property rights.
Certain criticisms have been made regarding the property related discussions made by Blackstone. According to the examples and the definitions given by Blackstone, it can be stated that he while defining the nature and character of property rights has made certain parochial statements. According to him, the rights of property is the exclusive dominion of the property owner that cannot be changed. It has been observed that he was of the view that no one can enjoy the similar rights over the property compared to the original owner and in this regard, it can be stated that the theories of exclusive axiom is observed in his definition[5]. However, from the definition of his property rights, certain property rights like the lease, easement rights and mortgages could not be defined. Further, it can be observed that the self-evident nature of his theory has rejected the notion of family ties. Further, certain complexities can be observed in his definition. Additionally, it can be stated that all the approaches he has attempted to define from utilitarian view. Further, the exclusive axiom has put all his concepts in a position that denies the medieval culture of the property rights. However, the social and political liabilities of Blackstone over the property could define the connection of the land during the feudal time[6]. Complexities cropped up regarding the property rights defined by Blackstone when he has made certain statements regarding the power of the decision maker over the power of the original owner of the property. In his property rights, Blackstone has revealed the fact that the real owner of the property and no one else could only enjoy rights of the property. On the other hand, he has stated that decisions over the property could not be taken by the original owner, but by the decision maker. This has made the definition of Blackstone’s property rights opaque. According to Carol M Rose, Blackstone has failed to observe the connection or relation between the ownership and exclusive axiom. His metaphysical aspects on the property rights have made certain incomprehensive views over the property rights. Criticism has been generated regarding his utilitarian views[7]. According to him, all the testimonies regarding the property rights have been written in the holy writ and God will define all the rights in his own taste. The supreme power will define all the differences in between the good and bad and he has included the Municipal law a part of the rule of civil conduct.
Decisions
According to the views made by Blackstone, only the original owner of land could enjoy the access, use of the land. However, in the aftermath, it has been stated by him that only the decision maker and not the original owner of the land will decide all these conditions. However, the moral principle of property would define right to property as bundle of rights that can be imposed on anyone. Further, it can be stated that the owner can transfer his share to other in the form of sale, lease, mortgage and even the easement right.
The approach made by Blackstone has opened certain roads of the property law and it has assisted the scholars of property law. Further, it can be stated that an idea regarding the ownership of land. Further, it has been observed that he has mentioned certain sections of the property rights. He has defined further, free use of the property, enjoyment and acquisition. He has elaborated the proper rights over the land. However, according to the critics of his theory, he has encroached the property related to the public goods. Ed Feser has stated that if a thief has stolen goods from other’s home, after the incident that goods do not become the property of the thief[8]. Therefore, it can be stated that the theory of Blackstone regarding the rights of the property has been unable to define the civil action that can be taken against anyone that infringes the property rights of anyone. Further, according to Blackstone, property rights are the main moral right. However, Locke has denied this notion. According to him, human rights are the main right in this case and not the property rights. Further, the canonical ideas are also criticised this idea of Blackstone. Further, the theory of absolute ownership has also been criticised. According to the supporters of the canonical theory, it can be stated that the property is absolute[9]. People get certain rights over the property and they can enjoy the rights as long as required[10]. Further, Blackstone has not mentioned any human rights and therefore, it can be stated that the property rights of Blackstone has opposed the natural rights theory.
Conclusion:
Therefore, it can be stated that the modern approach on property law is much different compare to the property rights approach of Blackstone. Further, the elements of Blackstone are quite ineffective to this current position. Further, he has made his theory complicated. He has failed to retain continuity in his statements and it has been observed that the real decision making rights in the property. Therefore, it can be stated that huge differences has been observed in between Blackstone’s concept and the canonical ideology. However, it could be sheer folly to deny the significance of him. He was the pioneer of application of the property rights and in this regard, it can be stated that both the theories are different and both have to certain extent able to different aspects of the property rights.
Reference:
Battisti, Giuliana, et al. “Open innovation in services: knowledge sources, intellectual property rights and internationalization.” Economics of Innovation and New Technology 24.3 (2015): 223-247.
Becker, Lawrence C. Property Rights (Routledge Revivals): Philosophic Foundations. Routledge, 2014.
Blackstone, William. “Commentaries on the Laws of England: Introduction: Section the First: On the Study of Law.” JL 4 (2014): 207.
Bradner, Scott, and J. Contreras. Intellectual Property Rights in IETF Technology. No. RFC 8179. 2017.
Feser, Edward. “Freedom in the Scholastic Tradition.” The Oxford Handbook of Freedom (2018): 176.
Lamb, Robert. Thomas Paine and the Idea of Human Rights. Cambridge University Press, 2015.
May, Christopher. The global political economy of intellectual property rights: The new enclosures. Routledge, 2015.
Mwangi, Esther. Socioeconomic change and land use in Africa: the transformation of property rights in Maasailand. Springer, 2016.
Paul, Ellen Frankel. Property rights and eminent domain. Routledge, 2017.
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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