HUMAN RIGHTS

Human Rights and Land Rights

Human Rights and Land Rights

Land law and human rights have never seemed particularly natural bedfellows. Perhaps it is because the popular notions of property and humanity appear somehow antithetical, a jarring juxtaposition of the self regarding impulse towards personal appropriation and another-regarding vision of the intrinsic merits of strangers. Again, land law and human rights law may have tended to look like polar extremes of jurisprudential concern precisely because, across the distance of the supposed public-private divide, the rather different resonances of their unshared terminology -- the intellectual tenor of divergent legal traditions -- intensified the impression that these areas were culturally and substantively quite distinct (European Law Review, 2002, pp. 179-181).

Their lack of congruence may have appeared all the more understandable in those jurisdictions where the allocation of the primary goods of life was already largely settled and where disputes over land seldom raised fundamental issues of raw human entitlement. On this view human rights considerations were apt to penetrate the sphere of the land lawyer only in the context of aboriginal land claims or systematic ethnic displacement or gross colonial exploitation in far-flung parts of the globe.

In England, by contrast, the interface between human rights discourse and the law of real property came to seem somewhat limited amidst the relative affluence of a post-war welfare state in which the oppressed and the dispossessed -- Frantz Fanon's 'wretched of the earth' -- were conspicuous mainly by their absence. For these, and many other, reasons the intricate machinery of the Law of Property Act 1925 and its satellite legislation contains little which could be confused with the positive protection or reinforcement of basic concepts of human freedom, dignity and equality. The rights upheld by the 1925 legislation (and by its associated regimes of registration) are, in general, derivative or transaction-based rights rather than rights of an original character arising in spontaneous vindication of free-standing perceptions of human worth. Still less did the formative property jurisprudence propounded by an earlier generation of Victorian judges overtly endorse any intrinsic link between property and human values (Journal of Planning & Environment Law 1995 pp. 633-640).

For instance, the overseers of England's industrial revolution cared little for that most modern of concerns -- the human right to respect for privacy. The sole sense in which notions of human freedom impinged on the 19th century world of real property ...