COURSE:

TITLE: IN ENGLISH LAW, TO LACK PROPERTY IS, IN EFFECT, TO BE LESS THAN FULLY A PERSON DESERVING RIGHTS AND RESPECT. DISCUSS.

SEMINAR TUTOR:

WORD COUNT :

STUDENT ID: 13114349

The English Property Law and its Implication on Individuals’ Rights and Respect

The English law of property refers to the legal rules and principles governing property ownership and use. Property includes both physical and intangible elements and can be classified as real or personal.[1] Property serves as the foundation for many legal rights and responsibilities and is often seen as a marker of a person’s status and worth in society. In English law, property rights are grounded in absolute ownership, which means that the property owner has the right to do anything with it, but there are legal statutes that guide their actions.[2] This essay will examine the relationship between property, rights, and respect in English law and consider factors such as possessive derivative titles, coverture, the queer person’s relationship to ownership, Asher and Wife v. Whitlock, women’s rights and inequalities, and John Locke’s theory of property. It is true that while property ownership may play a significant role in the legal and societal recognition of a person’s rights and respect, it is not the sole determining factor.

Possessive Derivative Title and Feudalism

A possessive derivative title is a form of title to land that is based on possession rather than ownership. In common law, individuals do not own land but hold a possessive derivative title. This title is derived from the history of the feudal structure, a system of governance in medieval Europe where lords granted land to vassals in exchange for their loyalty and military service.[3] Instead of the person who owned the property, a lord and feudal tenant held it in a master-servant relationship.

The concept of the possessive derivative title is vital in understanding the limitations of property ownership in English law. As possession may change at any time, the relative title based on it is not absolute but rather is dependent on the possession of others.[4] This aspect means that property ownership is not a fixed or permanent state but instead is subject to the actions and claims of others.

The feudal structure also had a significant impact on property laws in England. The land was considered the lord’s property and held by the vassal, with the lord having the authority to require specific services from the vassal in return for land use.[5] This hierarchical relationship between the lord and the vassal was reflected in the legal system, with the lord having legal land ownership and the vassal having a possessive derivative title.

While individuals may possess the land and have a relative title to it, they do not have absolute ownership of the land, and their rights to it are dependent on the possession and relative titles of others. Therefore, possession and relative titles play a significant role in the concept of ownership in English law.

The Doctrine of Coverture

Coverture was a doctrine that existed in English law until the mid-19th century. It stated that a woman’s legal identity was “covered” by her husband upon marriage, meaning she could not own property.[6] This doctrine was closely tied to the concept of primogeniture, which dictated that property within a family would pass to the eldest son. Together, these two principles entrenched the patriarchal family as a critical structure within English society and economy.

Despite this lack of formal property ownership, married women could find informal ways to own property, such as through trusts or by using their husbands’ names on deeds.[7] However, these methods were often unreliable and could be contested in court. Therefore, making it difficult for married women to secure their property rights.

 Coverture was a product of the capitalist economic system, based on the idea of private ownership and the pursuit of profit.[8] In this system, married women were seen as property that could be bought, sold, and traded by their husbands.

The doctrine of coverture had significant implications for married women’s rights and respect. By denying them the ability to own property, it effectively rendered them, second-class citizens, lacking the same rights and legal protections as men.[9] This doctrine was especially problematic in a capitalist economy, where property ownership was a vital indicator of a person’s worth and status. One notable case highlighting coverture’s impact on married women’s property rights is Asher and Wife v Whitlock (1865-66). This case raised the issue of property ownership and its relationship to rights and respect where the wife attempted to sue her husband for payment of a debt owed to her.[10] Despite the doctrine of coverture, which stated that a married woman's identity was merged with her husband's, Mrs Asher argued she had the right to sue as an individual. According to the court, Mrs Asher could not bring a claim as an individual as the doctrine of coverture applied. Thus, the court decision highlighted the limitations on women’s property ownership rights and how their legal identities were suppressed under the doctrine of coverture.

Asher[11] illustrates how property owners can influence an individual's rights and respect in English law. The decision to deny a married woman’s claim due to her lack of property ownership demonstrates how property determines an individual's legal status and rights.[12] As such, the doctrine of coverture poses challenges in the ongoing struggle for equality and emphasises the importance of continuing to push for property law changes. Furthermore, the doctrine of coverture demonstrates how property ownership has been used to discriminate against and oppress certain groups, including married women and queer individuals.[13] This indicates property ownership is not the sole determining factor in a person’s rights and respect.[14] Thus, other factors, such as gender, sexual orientation, and class, also play a significant role.

Queer Person’s Relationship to Ownership

Historically, queer individuals have faced significant barriers to owning property. According to Davies, societal stigma and discrimination have often resulted in queer individuals being denied access to resources and opportunities necessary for property ownership.[15] As a result, this has significantly impacted their rights and respect as individuals.

Additionally, the barriers faced by queer individuals in owning property are often linked to more significant issues of inequality and oppression. Similarly, just as women have historically been denied the right to own property due to patriarchal structures and coverture, queer individuals have faced similar discrimination based on their non-traditional gender and sexual identities.[16] As a result of these barriers, queer individuals are deprived of their rights and respect. Thus, without the ability to own property, queer individuals often cannot fully participate in society and are denied the same opportunities and protections as non-queer individuals.[17] As such, this lack of ownership can ripple effect on other areas of their lives, from financial stability to a sense of self-worth and belonging. Furthermore, the relationship between queer individuals and property ownership is characterised by historical and societal barriers, discrimination, and a lack of recognition.[18] Therefore, while property ownership rights are not the sole determining factor in one’s rights and respect as a person, they are essential to a person’s ability to fully participate in society and enjoy the same opportunities and protections as others.

Women’s Rights, Inequalities, and Oppression

Women's rights, inequalities, and oppression play a vital role in defining how people without property ownership were oppressed. The views of scholars such as Custer and Blackstone contributed to the development of this topic, portraying women as inferior members of society who were not entitled to property ownership.[19] Throughout history, women have faced numerous barriers to owning property. The doctrine of coverture which was discussed in the previous section is a prime example of this because it denied married women the ability to own property in their own right.[20] This doctrine was rooted in a patriarchal society that sought to uphold the primogeniture system, in which property passed to the eldest son in a family. As a result, this disadvantaged married women and perpetuated the idea that women were inferior to men and not deserving of the same rights and respect.

In addition, women faced not only formal barriers to owning property but also social barriers. For example, a husband had the right to control his wife's property, and a wife had no legal claim to her husband's property in the event of his death.[21] Therefore, women were financially dependent on their husbands and unable to accumulate the necessary resources to purchase property.

Women’s limited access to property ownership has significantly impacted their rights and respect. For one, women were effectively dependent on men for their financial well-being and were not able to make decisions about the use or disposal of their own property.[22] Likewise, it has also contributed to the gender pay gap, as women are often paid less than men and therefore have fewer resources to invest in property. Furthermore, the lack of property ownership has left many women without a sense of stability and security, as they cannot establish a permanent home or pass on their assets to future generations.

Some reforms, such as the Married Women’s Property Act of 1848, which gave married women the ability to acquire and dispose of property, have helped women.[23] However, these improvements have had only a limited effect. As such, women still face numerous challenges regarding property ownership, such as discrimination in the housing market and unequal pay.

Thus, the absence of property is viewed as being less than fully deserving of rights and respect is supported by the historical and societal barriers women face in owning property. While property ownership is not the sole determining factor in one’s rights and respect, it is a significant contributor, as it can provide financial independence, stability, and security. Therefore, addressing women’s inequalities and oppression in owning property is crucial in promoting equal rights and respect for all.

John Locke’s Theory of Property

John Locke’s theory of property is an essential consideration in the discussion of whether property ownership rights are the sole determining factor in determining a person’s rights and respect. According to Locke, property is created when an individual mixes their labour with natural resources, creating a product that can be owned and traded.[24] This theory has been influential in shaping modern property laws and has been used to justify the dispossession of indigenous peoples and the exploitation of working people. However, Locke’s theory has been criticised for its focus on individual ownership and disregard for collective ownership and the use of resources. It is argued that a person's rights and respect are determined not by property ownership but by access to and use of resources.[25] Thus, this argument is particularly relevant when considering homelessness, and dispossession of working people and indigenous peoples, who may not have the means to acquire property yet deserve equal rights and respect.

Additionally, Locke’s theory has been criticised for its assumption that there is an unlimited amount of resources available for individuals to mix their labour. This assumption ignores the reality that resources are finite, and their allocation has significant consequences for the environment and future generations. For example, Locke’s theory assumes that individuals have an equal opportunity to mix their labour with resources.[26] However, structural inequalities and discrimination can prevent certain individuals or groups from accessing and using resources, therefore leading to unfair distribution of property and wealth.

Furthermore, Locke’s theory of property was not solely focused on individual ownership but also included the concept of the “common good.” Locke argued that individuals have a natural property right.[27] However, this right is limited by the need to preserve resources for future generations and ensure that there are enough resources for everyone to live a good life. This emphasis on the common good suggests that Locke recognised the importance of access to and use of resources in determining a person’s rights and respect. In contrast, G. W. F. Hegel argued that individuals are born as land-owning individuals and that they form property as they progress. Thus, in his "Elements of the Philosophy of Right," Hegel proposed that the concept of private property is an important element of the state and that individuals have a natural right to own and control the things that they produce through their own efforts.[28] Accordingly, he argued that individuals achieve subjectivity (self-consciousness) through their participation in the state.

Moreover, Locke's doctrine of the common good was misused to rationalise the oppression of native peoples and the exploitation of labourers. The emphasis Locke placed on private property and the freedom to obtain resources through labour created a society in which a few people might amass enormous riches. However, those who were left behind had very few options available to them.

Despite these criticisms, Locke’s theory of property remains influential in modern property law. It continues to shape debates about the role of property ownership in determining a person’s rights and respect. However, although property ownership is undoubtedly a role, it is not sole in establishing one’s entitlement to respect and dignity. To guarantee that everyone is accorded the same dignity and respect, it’s not enough to guarantee that everyone has equal access to resources and opportunities in society. It is important to recognise that Locke’s theory of property is a product of its time and may not be applicable in all contexts. While it has had a significant impact on the development of property laws and systems, it is necessary to consider the limitations and criticisms of the theory to ensure that property ownership is equitable for all individuals. Thus, further discussion is needed on ensuring that all individuals, regardless of their property ownership status, are treated with the same rights and respect.[29]

Conclusion

In conclusion, the statement that “in English law, to lack property is, in effect, to be less than fully a person deserving of rights and respect” is not solely determined by property ownership rights. The possession of a property has a long history, with roots in feudalism and the concept of the possessive derivative title. Land ownership by married women and other oppressed groups, such as queer individuals, has also been affected by the doctrine of coverture and the institution of primogeniture. The case of Asher and Wife v Whitlock demonstrates the limitations of property ownership in relation to rights and respect and the impact of societal barriers on women and queer individuals. John Locke’s theory of property highlights the dispossession of working people and indigenous people, further showing the complex and multifaceted nature of property ownership and its relation to rights and respect. It is clear that while property ownership may be an essential factor, it is not the sole determining factor in the recognition of rights and respect in English law. Other factors, such as access to resources and the ability to participate in society, also play a role in determining a person’s rights and respect. Further discussion on the intersectionality of property ownership with other identities and systems of oppression is necessary to understand the relationship between property and personhood fully.

Word Count 2604

Bibliography

Arneil, B., 1996. John Locke and America: the defence of English colonialism. Oxford University Press.

Asher and Wife v Whitlock (1865-66) L.R. 1 and QR 1

Ball, V.L., 2021. Protecting Property Through Tort: The Implications of Using Tort Law to Protect ‘Property Interests’ in English Common Law (Doctoral dissertation, University of Leicester).

Blackstone, W., 1899. Commentaries on the Laws of England in Four Books, vol. 1 [1753]. Ed. Thomas M. Cooley. Chicago: Callaghan & Company.

Brace, L., 2022. The politics of property. In The Politics of Property. Edinburgh University Press.

Chistophers, B., 2018. The new enclosure: The appropriation of public land in neoliberal Britain. Verso Books.

Custer, J.A., 2013. The Three Waves of Married Women’s Property Acts in the Nineteenth Century with a Focus on Mississippi, New York, and Oregon. Ohio NUL Rev., 40, p.395.

Davies, M., 1999. Queer property, queer persons: Self-ownership and beyond. Social & Legal Studies, 8(3), pp.327-352.

Davies, M., 2007. Property: Meanings, histories, theories. Routledge-cavendish.

Erickson, A.L., 2005, March. Coverture and capitalism. In History Workshop Journal (Vol. 59, No. 1, pp. 1-16). Oxford University Press.

Getzler, J., 2008. Plural Ownership, Funds, and the Aggregation of Wills. Theoretical Inquiries in Law, 10(1), pp.241-270.

Graham, N., 2010. Lawscape: Property, environment, law. Routledge-Cavendish.

Hegel, G.W.F., 1991. Hegel: Elements of the philosophy of right. Cambridge University Press.

Klapeer, C.M. and Schönpflug, K., 2015. Queer needs commons! Transgressing the fiction of self-ownership, challenging westocentric proprietism. In Global Justice and Desire (pp. 187-203). Routledge.

Pollock, F. and Maitland, F.W., 1968. The history of English law: before the time of Edward I. 2 (Vol. 1). CUP Archive.

Rahmatian, A., 2008. A comparison of German moveable property law and English personal property law. J. Comp. L., 3, p.197.

Tait, A.A., 2014. The Beginning of the End of Coverture: A reappraisal of the married woman’s separate estate. Yale JL & Feminism, 26, p.165.

[1] Ball, V.L., 2021. Protecting Property Through Tort: The Implications of Using Tort Law to Protect ‘Property Interests’ in English Common Law, p. 21.

[2] Ibid.

[3] Pollock, F. and Maitland, F.W., 1968. The history of English law: before the time of Edward I, p. 5.

[4] Rahmatian, A., 2008. A comparison of German moveable property law and English personal property law, p. 63.

[5] Chistophers, B., 2018. The new enclosure: The appropriation of public land in neoliberal Britain, p. 76.

[6] Erickson, 2005, March. Coverture and capitalism, p. 3.

[7] Ibid., p. 5.

[8] Ibid., p. 4.

[9] Tait, 2014. The Beginning of the End of Coverture: A reappraisal of the married woman’s separate estate, p. 167

[10] Asher and Wife v Whitlock (1865-66) LR 1 QB 1

[11] Ibid.

[12] Ibid.

[13] Davies, 1999. Queer property, queer persons: Self-ownership and beyond, p. 331

[14] Ball, V.L., 2021. Protecting Property Through Tort: The Implications of Using Tort Law to Protect ‘Property Interests’ in English Common Law, p. 22.

[15] Davies, 1999. Queer property, queer persons: Self-ownership and beyond, p. 331.

[16] Davies, M., 1999. Queer property, queer persons: Self-ownership and beyond, p. 330.

[17] Ibid., p. 346.

[18] Klapeer and Schönpflug, 2015. Queer needs commons! Transgressing the fiction of self-ownership, challenging westocentric proprietism, p. 163.

[19] Custer, 2013. The Three Waves of Married Women’s Property Acts in the Nineteenth Century with a Focus on Mississippi, New York, and Oregon, p. 396.

[20] Custer, 2013. The Three Waves of Married Women’s Property Acts in the Nineteenth Century with a Focus on Mississippi, New York, and Oregon, p. 396.

[21] Blackstone, 1899. Commentaries on the Laws of England in Four Books, p. 147.

[22] Blackstone, 1899. Commentaries on the Laws of England in Four Books, p. 902.

[23] Custer, 2013. The Three Waves of Married Women’s Property Acts in the Nineteenth Century with a Focus on Mississippi, New York, and Oregon, p. 421.

[24] Brace, 2022. The politics of property. In The Politics of Property. Edinburgh University Press, p. 36.

[25] Davies, M., 2007. Property: Meanings, histories, theories, p. 19.

[26] Arneil, B., 1996. John Locke and America: the defence of English colonialism, p. 154.

[27] Ibid.

[28] Hegel, G.W.F., 1991. Hegel: Elements of the philosophy of right. Cambridge University Press, p. 230.

[29] Getzler, 2008. Plural Ownership, Funds, and the Aggregation of Wills. Theoretical Inquiries in Law, p. 247.