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‘Our sense of belonging within a legal system derives from our relationship to property, real or personal.’ Discuss.
The provocative title statement is approached from two perspectives in this critical discussion. In Part 1, the title statement strengths are reflected by the different ways that property rights have attracted such extensive England and Wales (EW) legal system attention. The accepted real and personal property definitions (as supplemented by modern day Intellectual Property (IP) rights) lend seemingly compelling support to the view that property rights of all kinds dominate how individuals (persons and companies alike) are connected to the legal system. It is suggested that no sensible person can doubt that property-based relationships have been a core legal system feature for centuries (Choo, 2018, p.394).
In Part 2, an alternative, competing proposition is advanced that raises significant doubts concerning present day title statement accuracy. It has become apparent that human rights concepts are now a dominant (and seemingly pervasive) connection that many people rely upon when claiming a contemporary legal system ‘sense of belonging’. European Convention on Human Rights 1950 (ECHR) Article 8 privacy and family life guarantees, Article 9 religious belief, and selected EW case law examples are used to support this human rights-based counter-argument. The different property based relationships that exist between the EW legal system and its society remain important. However, these Part 2 examples illustrate how human rights’ universality ensures that anyone (including persons without any property rights to assert), can secure effective legal system recognition and rights enforcement in a much wider range of circumstances than more limiting property-based relationships.
Part 1: The title statement principled foundation
Many EW legal system histories have underscored the different ways the property rights have been regarded as fundamental to how individual citizens interacted with the legal system. Choo and Hunter (2018) explain how until 1918, EW criminal jury eligibility depended upon being (1) male, and (2) satisfying the property ownership requirement (‘mere’ tenants were ineligible for jury duty (pp.194, 195, citing Juries Act 1825, s.1, Representation of the People Act 1918, s.1). The system traditionally encouraged two important notions; (1) property owners were legal system stakeholders that could be trusted to perform this important civic duty; (2) all legal rights were derived from property rights (Katz, 2015, [2.1], [7.1]).
Definitions – three examples
The respective real and personal property definitions are consistent with the property rights primacy understandings encouraged by the title statement. The laws that govern real property rights (land and any fixtures) are intricate, a reflection of their overall EW system importance (Acemoglu & Johnson, 2005, p.949). Of numerous examples, three invite specific critical discussion attention as ones bringing the notion of legal system ‘belonging’ into clearer focus. The first concerns the different ways in which EW legal principles are employed to resolve disputes concerning title claimed over unregistered land. The relatively recent Land Registration Act 2002 provisions did not disturb this ancient property law rule: title to unregistered land may be extinguished where a claimant demonstrates they have enjoyed 12 years of undisturbed (adverse) possession, as contradicting any documents otherwise proving legal title (s.96).
The adverse possession rule, and the notion that by possessing real property in ways that are ‘open, quiet, and notorious’ can create a legally enforceable right (Limitation Act 1980, s.15) is a powerful testament to the title statement legal system – sense of belonging argument (JA Pye (Oxford) v Graham (2002), , ). In other words, an individual can bring themselves within legal system protections by proving a connection to land that exists independent of their lack of registered title.
Chattels versus fixtures
The second EW real property legal framework (one that also includes personal property concepts) is the well-known chattels versus fixtures distinction (Williams 2019, pp.2-4; Thomas 2015, p.347). As a general rule, where what might otherwise be moveable, personal property such as equipment, lighting systems, or stoves are installed in buildings, or upon land where they cannot be removed without damage being caused to the item, or underlying property, the item becomes a fixture deemed part of the real property (Technical Bulletin, 2013, p.111; Elitestone v Morris (1997). Commentators including Luther (2008, p.574), and Holmes (2016, p.149) each emphasise the importance that EW law places on being able to effectively determine chattel – fixture status.
The personal property rights that are inextricably linked with these fixtures authorities also contribute to the title statement ‘belonging’ claim. The sweeping statutory personal chattels definition provide by the Administration of Estates Act 1925 includes the following: ‘personal chattels’ includes any tangible movable property, other than any such property consisting of ‘money or securities for money’ (s.55). This definition reinforces the notion that property rights claims will likely arise in many different forms, thus correspondingly increasing the ways in which individual claimants, or defendants will be brought within the broad EW legal system ambit (McKendrick 2016, p.392).
Chose in action
The entire ‘chose’ concept is the third selected example demonstrating how EW law has traditionally emphasised that personal property rights are fundamental to overall legal system function, and its operation. A chose as two possible forms: (1) as personal property (chattel) that can be possessed (like a vehicle, or mobile phone); or (2), as a ‘chose in action’, legal shorthand for an enforceable legal right, such as securing a debt repayment under an instrument (loan agreement), recovery of damages, or compensation (McKendrick, p.971). The EW authorities confirm the significant body of law that has been developed over time regarding how choses in action may be assigned, given they are impossible to physically transfer between persons (Tam, 2017, p.537).
By further example, the Law of Property Act 1925 provides that where an individual makes an absolute assignment by writing ‘of any debt or other legal thing in action’, whereby the debtor receives express notice in writing of the assignment, will be given full legal effect (s.136). The fact that a bill of sale, a document that only confirms a physical property transaction, can be used as security for loans or other commercial trading is further evidence that property rights and relationships are the foundation for numerous individual legal system interactions that contribute to ‘belonging’ (Log Book Loans v OFT (2011), , ).
Property ownership – Locke and IP rights
The fourth cited Part 1 example effectively brings the title statement full circle from the notion that EW ‘rights’ have been rooted in property rights definitions. Who actually owns ‘property’, and how ownership rights are created trace their 21st century understandings to Enlightenment age thinkers like Locke (1698, Chapter V (110, 102)). In an era when private property rights concepts were not yet fully formed, Locke contended that anyone who was able to apply their skills or ingenuity to make any property more valuable was entitled to the benefits. A key benefit that such individuals acquired through improving, or capitalising upon property was the right to exclude anyone else from enjoying such improvements (Locke, 102). Locke (1698) is thus rightly regarded as an important contributor to modern IP rights theory. These rights (notably copyrights, patents, and trademarks) are often disconnected from any real or personal property rights. However, IP rights are recognised as having enforceability against the world, and thus rights with often significant monetary value (Waelde, 2016, pp.12, 14, 41).
The various Part 1 examples are not suggested as providing definitive proof that the EW legal system has a property rights foundation. What these examples tend to confirm is the multidimensional nature of all real, personal, and other intangible property law concepts that necessarily ensure that property rights claims might potentially impact almost anyone. The noted EW property law frameworks plainly encourage significant potential for individual citizens’ engagement with the legal system, and thus ‘belonging’ to it within title question meaning.
It is not doubted that as a concept, property rights also have an amorphous quality, one that Gray (1991), and other theorists argue ‘… vanishes into thin air’, given that it has ‘conceptual fragility’, and only exists as ‘the individual and collective human response to a world of limited resources and attenuated altruism’ (pp.306, 307). The fact that some property rights theories may be vulnerable to scholarly challenge does not detract from the fact that EW legal system evolution has so often been driven by property rights claims (Dorfman, 2010, p.1). This reality has ensured more individuals have either asserted, or defended property-related claims, and thus been made part of the system.
Dorfman (2010) rephrases the core title statement point in this attractive fashion: ‘Private ownership (and private property more broadly) has been a core component of private law for many centuries’ (p.2). It is suggested that the Part 1 examples collectively contribute to the notion that one cannot readily imagine the current EW legal system having evolved as it has done, without property rights issues having strongly influenced it current scope and dimensions. This proposition acquires even greater probative effect when areas such as sale of goods, trusts, and consumer protection are factored into this discussion (Consumer Rights Act 2015, Schedule 1) – each of these modern EW legal system components has obvious property rights roots.
It is equally apparent that the title statement ‘belonging’ concepts demands consideration from a second perspective: have property rights remained the most important basis on which individuals are connected to the EW legal system? The Part 2 counterarguments are advanced with this point in mind.
Part 2: Human rights and title statement counterarguments
The primary challenge made to the title statement also has historical evidence at its foundation, albeit a history that is more recent than Locke (1698), or the Part 1 real and personal property ownership concepts. It is the suggested, steady and inexorable rise of the modern ‘human rights-based society’ that provides the following Part 2 counterarguments with their power (Hoffman, 2009, p.416). The effective commencement points from which all current human rights developments originate are the Universal Declaration of Human Rights (UDHR, 1948) guarantees (preamble). The UDHR 1948 reinforces this vital concept, one is equally an EW system feature by virtue of its UK ratification, and subsequent inclusion (expressly, or by implication) in EW law (Von Bernstorff, 2008, p.908). Each of the defined human rights (including prohibitions against any discrimination on the basis of race, creed, colour, gender, or national origin, Article 1) are not only applicable to everyone on Earth. They exist independently from property ownership, or any other legal rights. It is the implicit UDHR 1948 notion that human rights are the highest, and thus the most important rights that have contributed to the transformed EW legal system discussed here (Von Bernstorff, pp.908-911).
ECHR Article 8
The ECHR provisions are a natural extension of UDHR 1948 concepts, as the ECHR literal language confirms (ECHR, preamble). Article 8 privacy and family life protection case law is a useful selected Part 2 example for this reason (Unsworth 2017, p.14). As importantly, the different ways that Article 8 has been successfully utilised by claimants in numerous EW immigration and asylum cases provides a second justification for this selection. By their nature, claims involving persons seeking leave to enter, or remain in the UK are often antithetical to property rights recognition and enforcement (Walker, 2011, pp.3, 4). These claimants may be fleeing desperate and dangerous home country circumstances, and their applications are entirely independent from the Part 1 notion that property creates a fundamental sense of EW legal system belonging (Slapper & Kelly 2015, pp.135, 140).
The general ECHR Article 8 rights test is now well-entrenched in EW and broader European Court of Human Rights (ECtHR) jurisprudence. Respect for private and family life rights (Article 8(1)) must be balanced against the following competing considerations: Article 8(2) legality, necessity and proportionality (Razgar) v SSHD (No.2) (2004), ). The test is readily summarised: (1) is an Article 8(1) right engaged; (2) has a State agent interfered with this right; (3) is the interference legally justified; (4) does this State interference necessarily pursue a legitimate Article 8(2) aim; and (5), is the interference necessary in a democratic society, and thus provide a proportionate response? (Clayton, 2014, pp.359, 360).
This test, like the UDHR 1948 provisions from which they take their inspiration, have no direct connection to traditional property rights theory. Whilst Article 8 make no express reference to immigration or asylum claims, this ECHR provisions are ideally suited to such proceedings where family units are frequently impacted by the possibility that members may be legally separated (Huang v SSHD, (2007) ). At its essence, the five-part Article 8 test will invariably require EW courts to determine how best to strike a fair balance between an individual’s rights, and the interests of the community that are inherent across the entire ECHR (Razgar, (2004), , ). The proposition that these claims also encourage a sense of title statement legal system belonging is thus compelling – applicants working within the system in ways disconnected from property law principles.
EW policy makers have been attempting to limit the effects attributable to Article 8, and the perception that the ECHR has badly compromised EW ability to control the flow of undesirable persons across national borders (Immigration Rules Statement of Changes (2012), [2.1]). Amongst other assertions, the 2012 Statement purports to reflect Article 8’s ‘qualified nature’, where a ‘correct balance’ is described in these terms: individual family life and the public interest in safeguarding UK economic well-being ‘by controlling immigration and in protecting the public from foreign criminals’ ([2.1]).
It is noted that a fair balance might not accord with another person’s ‘correct’ balance; such language will naturally lead to legal conflicts (Barden, 2013, p.174). The cases reflect an ongoing tug of war between EW agencies seeking to impose more restrictive immigration and asylum rules, and the EW courts seeking to apply the ECHR to achieve the balancing of interests outlined above (BS (Congo) v SSHD, (2015) ). The Court of Appeal has frequently emphasised that it will not give retrospective effect to any EW immigration authorities’ efforts to limit Article 8, except as provided by the Razgar (2004) guidance noted above (BS (Congo), ).
This rise to prominence of all human issues within the EW legal system does not mean that Part 1 property rights have been supplanted, or even diminished by the suggested human rights rise to present day EW legal system prominence. The different legal areas where property law principles remain the EW legal foundation have not been altered. The broader EW societal appreciation that ‘rights’ are now integral to how modern EW society understands itself is independent of property rights; the following examples lend further support to this contention.
Article 9 rights examples
An ECHR Article 9 example assists in appreciating why rights have become emblematic of how contemporary EW society must be understood. ECHR Article 9 provides (amongst other protects), that everyone has the freedom to believe in a religious faith (or hold no religious beliefs), without interference by a State authority (Article 9(1)). The ways in which the Eweida v British Airways (2010) ‘manifestation of religious belief’ claim was debated by EW academic commentators and mainstream media outlets alike confirm how deeply embedded rights have become (, ). The claimant had argued that her employer had engaged in actionable discrimination on religious grounds, by enacting a dress code that prohibited employees from wearing any visible religious symbols (2010, ). The fact that this claimant was denied a remedy at the Court of Appeal level (2010), yet succeeded before the ECtHR in establishing a denial of her individual rights ignited a significant public debate that has persisted (Eweida v UK (2013), ; Gibson, 2013, p.578).
The following ECtHR passage is especially instructive when the entire question of an EW ‘rights’ society is carefully considered. The Court found that this applicant’s behaviour was a manifestation of her religion. The employer’s refusal to allow her to remain employed whilst visibly wearing a small crucifix was n interference with that right (Eweida, 2013, ). As importantly, UK law did not make any provision for how wearing religious symbols and clothing in the workplace should be regulated (, ). The Court applied a similar test concerning employer dress code legitimacy and ‘proportionality of the measures’ test as that outlined regarding Article 8 above. Whilst the Court agreed that the UK lack of specific protection under domestic law did not mean that the applicant’s Article 9 rights were insufficiently protected, she had established an Article 9 violation in this instance (–). No property rights were asserted, yet no doubt exists that this rights-motivated applicant ‘belongs’ with the EW legal system.
The various Part 2 Article 8 and 9 examples discussed here prompt this brief independent commentary. As with the Part 1 property law cases, it is not possible to provide definitive proof of the suggested EW legal system transformation from a property based, to a human rights dominated system on the basis of these few examples. However, it is very clear that by upholding the ECHR rights universality concepts that have their UDHR 1948 origins, there is no longer any need to have a property rights connection, to achieve ‘belonging’ within the EW legal system. The immigration examples cited above did not have any connection with property rights, yet the EW courts were prepared to ensure an appropriate rights-based remedy was available.
Similarly, Article 9 ‘manifestation of religious belief issues’ cases have assumed immense contemporary EW societal importance (of which the Muslim headscarf disputes) are a further, often highly provocative example; Steinbach, 2015, pp.235, 240). It is apparent that EW legal system focus has been emphatically shifted from its undoubted property law points of emphasis, to a broader, more amorphous, but remarkably important human rights orientations.
Part 3: Conclusions
The various points developed in Parts 1 and 2 collectively contribute to this brief Conclusion that also extends directly from the Part 2 commentary presented above. The importance that the EW legal system traditionally placed on property rights, and how these were interpreted in real, personal, and (later) more intangible IP rights contexts is undoubted. The emergence of human rights protections as an EW legal system focal point, with the Part 2 ECHR Article 8 and 9 authorities providing strong support, has dramatically altered how the EW legal system must be appreciated. Human rights are now an ever-present legal system feature, one that does not diminish property rights. Instead, this human rights orientation has changed the ways that individuals can ‘belong’ to the legal system.
References (Open U)
- BS (Congo) v Secretary of State for the Home Department  EWCA Civ 639 (CA (Civ)).
- Elitestone Ltd v Morris  1 WLR 687 (HL)
- Eweida v British Airways Plc  EWCA Civ 80;  I.C.R. 890 (CA (Civ))
- Eweida v United Kingdom (48420/10)  I.R.L.R. 231 (ECtHR)
- Hellawell v Eastwood (1851) 155 E.R. 554 (QB)
- Holland v Hodgson (1872) LR 7 CP 328 (QB)
- Huang v Secretary of State for the Home Department  UKHL 11;  2 A.C. 167 (HL)
- Log Book Loans Ltd v Office of Fair Trading  UKUT 280 (AAC)
- R. (on the application of Razgar) v Secretary of State for the Home Department (No.2)  UKHL 27;  2 A.C. 368 (HL)
Legislation and rules
- Administration of Estates Act 1925 (UK)
- Consumer Rights Act 2015 (UK)
- European Convention on Human Rights 1950 (CoE)
- Human Rights Act 1998 (UK)
- Law of Property Act 1925 (UK)
- Land Registration Act 2002 (UK)
- Limitation Act 1980 (UK)
- Universal Declaration of Human Rights 1948 (UN)
Texts and journals
- Acemoglu, D & and Johnson, S (2005). Unbundling Institutions. Journal of Political Economy (October): pp. 949-995
- Barden, T (2013). Family reunification requirements: barrier or facilitator to integration. Journal International and Naturalisation Law, 27(2): pp. 174-189
- Choo, A and Hunter, J (2018). Gender discrimination and juries in the 20th century: judging women judging men. International Journal of Evidence & Proof 22(3): pp. 192-217
- Clayton, G (2014). Immigration and Asylum Law. 6th edition. Oxford: OUP
- Dorfman, A (2010). Private ownership. Legal Theory: pp.1-15
- Gibson, M (2013). The God “dilution” religion, discrimination and the case for reasonable accommodation. Cambridge Law Journal 72(3): pp. 578 – 616
- Gray, R (1991). Kevin Gray, ‘Property in Thin Air. Cambridge Law Journal 50: pp. 252 -301
- Hoffman, L (2009). The universality of human rights. Law Quarterly Review, 125(Jul): pp. 416-432
- Holmes, H (2016). Is a chalet a chattel or is it part of the land on which it stands? Landlord & Tenant Review, 20(4): pp. 149-152
- Luther, P (2008). The foundations of Elitestone. Legal Studies 28: pp. 574, 577
- McKendrick, E (2018). Contract Law: Cases, texts and materials. 8th edition. Oxford: OUP
- Slapper, G & Kelly, D (2015). The English Legal System. 15th edition, London: Routledge-Cavendish
- Steinbach, A (2015). Burqas and bans: the wearing of religious symbols under the European Convention of Human Rights. Cambridge Law Journal 4(1): pp. 29 – 4.
- Tham, C (2017). Joinder of equitable assignors of equitable and legal choses in action. Lloyd’s Maritime and Commercial Law Quarterly, 4(Nov): pp. 537-565
- Technical Bulletin (2013). High Court decision on the removal of chattels, fixtures and other items from leased premises. 105(Sep): pp. 105-111
- Thomas, S (2015). Mortgages, fixtures, fittings and security over personal property. Northern Ireland Law Quarterly, 66(4): pp. 343-355
- Von Bernstorff, J (2008). The changing fortunes of the Universal Declaration of Human Rights: genesis and symbolic dimensions of the turn to rights in international law. European Journal of International Law, 19(5): pp. 903-924
- Waelde, C et al (2016). Contemporary intellectual property: law and policy. Oxford, OUP, 2016)
- Statement of Changes in Immigration Rules (2012). Explanatory memorandum 13 June 2012 (HC 194)
- Locke, J (1698). Two Treatises of Government: In the Former the False Principles and Foundation of Sir Robert Filmer and His Followers, are Detected and Overthrown. The Latter is an Essay Concerning the True Original Extent and End of Civil Government (3 ed.), London: Awnsham and John Churchill. [Online] Available: <http://books.google.bg/books?id=7kwUAAAAQAAJ&dq=editions%3Aq2cKQ3eYrMIC&hl=bg&pg=PP7#v=onepage&q&f=false> accessed 19 May 2019
- Walker, R (2011). The Indefinite Article 8. Thomas Moore Lecture, Lincoln’s Inn (9 November 2011) [Online] Available: <https://www.supremecourt.uk/docs/speech_111109.pdf> accessed 20 May 2019
- Wenar, L (2015). Rights. Stanford Encyclopedia of Philosophy (Fall 2015 Edition), Edward N. Zalta (ed.), [Online] Available; <https://plato.stanford.edu/archives/fall2015/entries/rights/> accessed 20 May 2019
- Williams, A ‘Chattels, Fixtures and 300 Years of Case Law’ (February 2018) [Online] Available: < https://www.exchangechambers.co.uk/chattels-fixtures-300-years-case-law/> accessed 19 May 2019
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