Before Property: A Prehistory of Property Rights in Land

Abstract

This paper traces the origins of land as property in the common law and is excerpted from a larger work on the legal geography of property. Unlike previous genealogies of property, this research uses a landscape lens to examine property’s roots, predating its origins not in Lockean notions of individual ownership, but in the pre-feudal era. Property diverged from landscape, a term signifying a locally distinct polity or place, in which ‘land’ represented a complex web of diverse non-proprietary relationships and interests. This divergence was facilitated by a legal system that prioritised (placeless) abstract rights in land that could be owned, as exemplified by John Locke’s property theory of value. Revealing property’s early origins in place reframes property’s ascendance, not as a linear evolution from primitive collectivism, but as a retreat from grounded perspectives in land. A landscape lens may allow us to reimagine property’s potential, by re-infusing place into the property discourse.

Keywords: property, legal geography, landscape, common law, commons, Locke