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A tale of the land, the insider, the outsider and human rights (an exploration of some problems and possibilities in the relationship between the English common law property concept, human rights law, and discourses of exclusion and inclusion)

Published online by Cambridge University Press:  02 January 2018

Anna Grear
Anna Grear*
Affiliation:
Oxford Brookes University
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Abstract

This paper examines the interplay between discourses of exclusion and inclusion in the relationship between land law and human rights. It explores the common law conception of property in land and its relationship with the conceptual structure of property before suggesting that the particular form the conception takes in the English common law is problematic as a discourse of exclusion in the light of inclusive human rights considerations. However, further submerged exclusions in law are also explored, suggesting a problematic ideological continuity between land law and human rights law, notwithstanding identifiable surface tensions between them as contrasting discourses. Once the continuity of hidden exclusions is identified, the paper explores the theoretical unity between the deep structure of property as ‘propriety’ and human rights as ‘what is due’, and suggests their mutual potential for embracing more inclusive concerns. Finally, two modest proposals for future theoretical reform are offered: the need for a more anthropologically adequate and inclusive construct of the human being as legal actor, and the need for a more differentiated, context-sensitive formulation of the common law1 property conception, one capable of reconciling conceptually necessary elements of excludability with inclusive human rights impulses.

Type
Research Article
Information
Legal Studies , Volume 23 , Issue 1 , March 2003 , pp. 33 - 65
Copyright
Copyright © Society of Legal Scholars 2003

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References

1. Gray, K and Gray, S ‘The Idea of Property in Land’ in Bright, S and Dcwar, J (eds) Land Law: Themes and Perspectives (Oxford: Oxford University Press, 1998) p 18.Google Scholar

2. 2 B1 Com(16th edn) 1.

3. Gray, K and Gray, S ‘Private Property and Public Propriety’ in McLean, J (ed) Property and the Constitution (Oxford: Hart Publishing, 1999) pp 11–39.Google Scholar

4. ‘The environment is in immediate relation to me: there is no gap between us. In its totality (viewed as a microcosm or as a macrocosm) it mediates life and death, health and danger, joy and despair, imagery and companionship. We are set in it and we adapt to it, but we also adapt it to ourselves. Thinking of it in this way the image of the person-in-the-environment is dissolved by a relational, total-field image. The relationships between me and any other being are such that they belong to the basic definition of what we are. They are an essential component of what I am in myself’: Primavesi, A ‘Faith in Creation’ in Race, A and Williamson, R (eds) True To This Earth: Global Challenges and Transforming Faith (Oxford: One word Publications, 1995) pp 101–102.Google Scholar

5. Kevin Gray discusses this concept in the context of an analysis of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 in relation to its conceptual significance in the provision of vital clues to the identification of the ‘propertiness’ of property in relation to land: ‘Property in Thin Air’ (1991) 50 CU 252 at 268–92.

6. See the extensive discussion of the conceptually necessary elements of a property institution in Harris, J W Property and Justice (Oxford: Clarendon Press, 1996)Google Scholar, esp his discussion of trespassory rules and the ownership spectrum. The notion of ‘excludability’ as discussed by Kevin Gray (see n 5 above) is utilised more fully below.

7. ‘This right of exclusion has a strong foundation in English Law. It is used as the point of divide between leases (estates) and licences (non-estate, and not even proprietary). The right to exclude is still upheld as an essential right of landowners. Even owners of what Gray labels “quasi-public” property have a right to exclude particular individuals on a selective basis, for any (or no) reason, notwithstanding that the public generally is invited onto the property’: S Bright ‘Of Estates and Interests: A Tale of Ownership and Property Rights’ in Bright and Dewar, n 1 above, pp 529–46.

8. The English legal definition identifies property interests by the fact that their benefit is assignable to third parties, and that their burden has the capacity to bind new owners of the relevant estate in land: National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1247G–1248A, per Lord Wilberforce.

9. ‘On conventional reasoning, a claim comprises “property” if enforceable against a stranger , and claims are enforceable against strangers provided they are proprietary in character’: Gray, K and Gray, S Elements of Land Law (London: Butterworths, 2001) pp 108–109.Google Scholar

10. See Harris, n 6 above, p 3.

11. The term is Kevin Gray's. See Gray, n 5 above, at 268.

12. Gray, K Equitable Property’ (1994) 47(2)Google Scholar CLP 157.

13. For further reading on the psychology of possession, see the references provided at n 12 above, at 157 n 2.

14. See Harris's chapter on ‘Imaginary Societies’, n 6 above, pp 15–22, together with his discussion on the ubiquity of property in the introduction, with the references cited there.

15. The concept of private property is logically prior to the notion of common property. Without a concept of private property, common property as ‘property’ makes no conceptual sense. See, for this, Harris, n 6 above, p 15.

16. See Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 270ff, where Blackburn J suggests that the Aboriginals had ‘a more cogent feeling of obligation to the land than of ownership of it’, and that it was easier to say that ‘the clan belongs to the land than that the land belongs to the clan’. Moreover, in that particular case, the lack of a concept of a right to exclude others was a profound obstacle to the founding of a conventional common law property claim (at 272ff) See the discussion of this case and native title generally in the context of considering ‘equitable property’ in traditional country in Gray, n 12 above, pp 181–88.

17. Gray, n 5 above, at 252.

18. Gray, n 5 above, at 268.

19. Gray, n 5 above, at 268.

20. Gray, n 5 above, at 269.

21. Gray, n 5 above, at 269.

22. Gray, n 5 above, at 269.

23. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.

24. Gray, n 5 above, at 270. Note also Gray's insistence that the test of physical excludability be applied with care, because it only applies to the property in its existing form. ‘Ultimately’, he suggests, ‘most resources can be physically insulated from access by strangers - if only through vast expenditures of money or imagination’: at 272.

25. ‘The plaintiff who neglects to utilise relevant legal protection has failed, so to speak, to raise around the disputed resource the legal fences which were plainly available to him. He has failed to stake out his claim; he has failed in effect to propertise the resource’: Gray, n 5 above, at 274.

26. See Harris, n 6 above, pp 23–41 for how trespassory rules form part of the minimal structure of a property institution.

27. See the fuller discussion of contractual protection as a form of legal excludability, intellectual property protection and the implications for fiduciary law in Gray, n 5 above, at 274–80.

28. Gray, n 5 above, at 281.

29. Moral non-excludability could also be utilised as a way of characterising claims reflecting environmental concerns. A radical critic of the private property concept might make an argument, eg that morally the planet and its resources are common human property, and that land should not be subject to private property ownership at all in its present form. Such an argument would require an almost total departure from dominant paradigms, and for that reason alone would be unlikely to succeed. The foreclosing effect of influential or dominant paradigms and the way in which this foreclosure operates to make alternative claims seem prima facie ‘oddball’, ‘impractical’ or even ‘irrational’ serves to underline the degree to which property is a social construct which embodies certain currently shared (and contested) perceptions of our communal moral space.

30. ‘In some deep sense the sustained exercise of exclusory power is perhaps all there really is to the grand claim of proprietary ownership’: Gray, K ‘Property in Common Law Systems’ in van Maanen, G E and van der Walt, A J (eds) Property Law on the Threshold of the 21st Century (Antwerp: MAKLU, 1996) p 265 Google Scholar. It should be noted, however, that even the common law property right, despite its totalitarian potential and absolutist flavour, was never totally absolute. See K Gray and S Gray ‘Civil Rights. Civil Wrongs and Quasi-Public Space’ [1999] EHRLR 46.

31. Hunter v Canary Wharf Ltd [1997] AC 655 at 703F, per Lord Hoffman.

32. ‘[T]he point is not so much that a “lease” confers exclusive possession; it is that the conferring of exclusive possession is an indication that the arrangement in question is a lease’: Wik Peoples v Queensland (1996) 187 CLR 1 at 116, per Toohey J.

33. Street v Mountford [1985] AC 809. esp at 816C, per Lord Templeman; Aslan v Murphy (Nos 1 and 2) [1990] 1 WLR 766, esp at 770E-F. per Lord Donaldson of Lymington MR; AG Securities v Vaughan [1990] 1 AC 417, esp at 454A-B, per Lord Bridge of Harwich; Antoniades v Villiers [1990] 1 AC 417, esp at 459D-H, per Lord Templeman.

34. Possession is ‘a conclusion of law defining the nature and status of a particular relationship of control by a person over land’: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 207, per Toohey J.

35. ‘The exclusive or unrestricted use of a piece of land … beyond all question passes the property or ownership in that land’: Reilly v Booth (1890) 44 Ch D 12 at 26, per Lopes LJ.

36. H W Ballantine ‘Title by Adverse Possession’ (1918–19) 32 Harv LR 135.

37. Currently, this is governed by the Limitation Act 1980. Adverse possession of registered land will shortly be governed by the provisions of the Land Registration Act 2002.

38. See Land Registration Act 1925, ss 75(1)Google Scholar, (2). 70(1)(f)-(g).

39. Land Registration Act 2002, s 96.

40. Land Registration Act 2002, Sch 6, para 1.

41. Land Registration Act 2002, Sch 6, para 4.

42. See Land Registration Act 2002, Sch 6, paras 5, 6 and 7. The second defence, which concerns cases where the squatter is ‘otherwise entitled to the land’, does not assist the adverse possessor qua adverse possessor.

43. See eg the discussion in Land Registration for the Twenty-First Century – A Consultative Document (Law Com No 254) paras 10.5–10.19, particularly the justification relating to the quieting of claims in relation to land, and the social stability argument incipient within it. The need to keep land titles and the reality of possession in a close enough relationship to maintain marketability also provides a reason to accept the need for some kind of analysis reflecting social reality. However, this does not necessarily endorse the idea that other considerations should not be blended into the analysis in order to render it more compelling from the perspective of social inclusion.

44. To the degree eg that a possessory analysis reflects the necessarily tangible human relationship with land as a medium of interaction, it is arguably inescapable. To the degree that it can be combined with normative preference for eg stewardship rather than neglect, it becomes not only defensible but also desirable.

45. Gray, n 9 above, p 245.

46. Consider eg recent discussion of adverse possession law in relation to the implications of the Human Rights Act 1998. In JA Pye (Oxford) Ltd v Graham [2000] 3 WLR 242 at 272D-E. Neuberger J, upholding a claim of adverse possession noted that the outcome was in his opinion ‘disproportionate… in a climate of increasing awareness of human rights’. However, it should be noted that Neuberger J's disquiet reflected a concern to protect the original landowner against the adverse possessor. Thus, while at one level his concern can be seen as a question concerning moral excludability arising from sensitivity to human rights discourse, his position does not appear to question the exclusory logic of the common law from an inclusory human rights perspective. This incipient favouring of the ‘landowner’ viewpoint is likely, it is suggested, to prove resistant to any novel claims for inclusion from classes of persons traditionally unsuccessful in adverse possession cases, such as gypsies: R v Environment Secretary, exp Davis (1989) 59 P & CR 306 (failure of adverse possession claim). Note also the generally exclusory outcomes to rights claims by gypsies: eg Buckley v United Kingdom (ECHR) Case No 23/1995/529/615, 1996-iv; 23 EHRR 101. See, for further discussion, Kate Green's discussion of ‘nomadism’ in ‘Citizens and Squatters: Under the Surfaces of Land Law’ in S Bright and J Dewar (eds) Land Law: Themes and Perspectives (Oxford: Oxford University Press. 1998) p 229; and the discussion of gypsy claims by S Poulter ‘The Rights of Ethnic. Religious and Linguistic Minorities’ [1997] EHRLR, Issue 3, 254 at 261 ff.

47. ‘[The] rule of peremptory exclusion makes no distinction between the species of property to which it may relate. In its strict conventional form the common law rule applies indifferently to domestic dwellings, crowded urban spaces, and vast tracts of the Australian outback. Nor in general, has the common law troubled to differentiate, in terms of the exclusory power, between various kinds of landowner, whether private, corporate or governmental’: Gray and Gray, n3 above, p 15.

48. See the discussion of this in Gray and Gray, n 3 above; and in Gray and Gray (1999), n 30 above.

49. This point is reflected in the cases referred to at n 46 above, concerning classes of claimant traditionally unsuccessful in claims for inclusion in relation to the traditional property right.

50. Gray and Gray, n 3 above, p 15.

51. Gray and Gray, n 3 above, p 15.

52. MacKinnon, C A Towards a Feminist Theory of the State (Cambridge, Mass: Harvard University Press, 1989) p 237.Google Scholar

53. Fredman, S Women and the Law (Oxford: Clarendon Press, 1997)Google Scholar.

54. Fredman, n 53 above, p 7.

55. Such as Aristotle, Locke and Rousseau.

56. See discussion below eg of rural racial exclusion at nn 73 and 74, and associated text.

57. Green, n 46 above. p 229.

58. ‘… [R]ather than follow the usual (Platonic) tradition which is based on defining the permanent “essence” of a concept, Deleuze and Guattari were interested in constantly changing relationships. Following their approach, you do not ask, “What is it”’, but ‘What does it do?’: Green, n 46 above, p 229. For further reading on Deleuze and Gauttari, Green references Massumi, B A User's Guide to Capitalism and Schizophrenia: Deviations from Deleuze and Gauttari (Cambridge. Mass: MIT Press, 1993)Google Scholar.

59. Green, n 46 above, p 230.

60. Green's argument gains immediate plausibility from the fact that the right to vote, for a long time, actually rested on land ownership. It is also interesting, in the light of the analysis of the contours of law's exclusions introduced above, that it was only in 1928 that women gained the right to vote. These historical facts are significant. They are telling markers of the close relationship between land ownership and citizenship as related aspects of membership of the political community, and suggest their mutual operation as gateways of exclusion. The memoirs of a woman born in 1907 reflect the ideological link and its hierarchy of exclusion with telling poignancy: ‘At this time Grandah as a property owner had two votes and Father had none. Father did get the vote when general male franchise was introduced, but Mother had to wait until after the First World War’: M Prendergast My Memoirs (unpublished, 2000) p 6.

61. Green, n 46 above, p 248.

62. Green, n 46 above, p 241.

63. Green, n 46 above, p 252.

64. Green, n 46 above, p 252.

65. Raven, J ‘Defending Conduct and property: The London Press and the Luxury Debate’ in Brewer, J and Staves, S (eds) Early Modern Conceptions of Property (London: Routledge, 1995) p 305 Google Scholar, quoted by Green, n 46 above, p 252. Green suggests that in modern Britain the connection between good citizenship and land is employed in reverse to ensure that citizens demonstrate qualities of ‘permanence, reliability, and hard work’: n 46 above, p 252. Her point is arguably borne out to a degree in the modem role of the mortgage. In 1970, in Pettit v Petttit [1970] AC 777 at 824C, Lord Diplock noted that modern British society had seen the ‘emergence of a property-owning, particularly a real-property-mortgaged-to-a-building-society-owning, democracy’. The mortgage (especially when combined with the powerful ideology of home ownership in Britain) seems to reveal the central social significance and persistence of the link between the ideological function of land ownership and citizenship. Mortgage finance ‘enjoys a certain public importance not least because the ideology of home ownership has a clear political dimension … Home ownership, particularly if achieved with the aid of mortgage finance, breeds political conservativism’: Gray and Gray, n 9 above, p 1362. See their reference, at p 1362 n 6, to Harold Bellman's discussion of the Building Society Movement and the link between citizenship, home ownership and political stability in Bellman, H The Building Society Movement (London: Methuen & Co, 1927) pp 53–54.Google Scholar

66. L E Klein’ Property and Politics in the Early Eighteenth Century Whig Moralists: the Case of the Spectator‘ in Brewer and Staves, n 65 above, p 305, quoted by Green, n 46 above, p 252.

67. Green, n 46 above, p 230.

68. Short, J R Imagined Country: Society, Culture and Environment (London: Routledge. 1991) pp 34–35 Google Scholar, quoted by Green, n 46 above. p 230.

69. Green, n 46 above, pp 230–31, 243.

70. Green, n 46 above, p 231.

71. ‘The ideal types are daily at work in the law, silently excluding other ways of having and being than that of the possessive individualist. The rule of law may promise equality of treatment to all, but many are still treated unequally. Beneath the surface of formal equality, the actions and intentions of women, children, “natives”, homosexuals and others are kept out of the underlying models, and are more likely to be locked out of ownership and citizenship. Even when the rules are changed to allow entry to members of a previously excluded group, the stereotype ensure that they are included only to the extent that they can pretend to fit the mould’: Green, n 46 above. p 255.

72. (2001) Carf61, April/May.

73. T Bark ‘Racism, Nationalism and the Countryside Alliance’ (2001) Carf61, April/May, at 6.

74. ‘Recent Home Office figures reveal a 358 per cent increase in reported racist incidents in Devon and Cornwall, the second highest in the country. An Observer special national feature reported that racist attacks are ten times more likely to take place in rural as opposed to urban areas and identified Devon and Cornwall as one of the most dangerous places for isolated black people to live. A black person can be the only one in a town of 25,000 people; a black family may be the only one within a radius of 25 square miles in a rural area’: National Civil Rights Movement Newsletter, Issue 5, in (2001) Carf61, April/May, at 7.

75. Tilley, C A Phenomenology of Landscape: Places, Paths and Monuments (Oxford: Berg, 1994) p 11.Google Scholar

76. Gray and Gray, n 9 above, p 2.

77. See eg Gray and Gray, n 3 above. For analysis of the quasi-public elements of property, see Gray, n 12 above. For further reading, see E T Freyfogle ‘Context and Accomodation in Modem Property Law’ (1998–99) Stan LR 1529; L Sandercock ‘From Main Set to Fortress: The Future of Malls as Public Spaces - OR - “Shut up and Shop”’ [1997] Just Policy 27; Crawford, M ‘The World in a Shopping Mall’ in Sorkin, M (ed) Variations on a Theme Park: The New American City and the End of Public Space (New York: Hill and Wang, 1992)Google Scholar. It is possible that concerns in relation to the privatisation of public space are a particular manifestation of broader concerns in relation to the protection of democratic values and the pressing need to ensure the accountability of corporate private power in virtually all sectors of law and social regulation: see Oliver, D Common Values and the Public-Private Divide (London: Butterworths, 1999)Google Scholar. For an alternative approach, see G Teubner ‘After Privatisation? The Many Autonomies of Private Law’ (1998) 51 CLP 393.

78. B Fitzpatrick and N Taylor ‘Trespassers Might Be Prosecuted: The European convention and Restrictions on the Right to Assemble’ [1998] EHRLR, Issue 3, at 298.

79. ‘[I]t is increasingly the case that spaces to which the public have physical access are becoming the objects of heightened and more overt forms of private control. For example, the proliferation of closed circuit television cameras and other forms of private security in shopping malls, town centres and even residential areas’: Fitzpatrick and Taylor, n 78 above, n 1. See also C D Shearing and P C Stenning ‘Private Security: Implications for Social Control’ (1982–83) 30 Social Problems 493.

80. Gray and Gray, n 9 above, p 166.

81. [1995] 2 EGLR 130.

82. Gray and Gray, n 3 above, p 23.

83. It is interesting to note the comment of Gray and Gray concerning allegations of racial issues raised in the background conflict to the case: see Gray and Gray, n 3 above, p 23 n 56.

84. Gray and Gray, n 9 above, p 169.

85. [1995] 2 EGLR 130 at 134E-J.

86. [1999] All ER(D) 1129.

87. See, for full discussion of this, Gray and Gray (1999), n 30 above, which was referred to in the judgments in Porter v Comr of Police of the Metropolis [1999] All ER (D) 1129 in the Court of Appeal. The judges considered the article (which considers whether the law of trespass, as it applies to quasi-public spaces, needs to be modified to take account of rights of free movement and rights of assembly) most useful, but could not apply such arguments to the case before them. CIN Ltd v Rawlins [1995] 2 EGLR 130 was accordingly applied.

88. CIN Ltd v Rawlins [1995] 2 EGLR 130 survived a challenge in the European Commission of Human Rights (Anderson v United Kingdom (Application No 33689/96) [1998] EHRLR 218) in part because the right to freedom of movement (Protocol 4, Art 2 ECHR) is not included in the list of ‘convention rights’ to which s 1(1) of the Human Rights Act 1998 applies. This seems a most significant omission in the context of concerns over the privatisation of public space.

89. [2000] En v LR 313.

90. [2000] 1 QB 133.

91. Note that the Act concerns only access on foot: Countryside and Rights of Way Act 2000, Sch 2, para 1 (a). Access is subject to restrictions in relation to reasonable behaviour: Countryside and Rights of Way Act 2000, Sch 2 and s 2(1)(a). Access rights only affect land designated as ‘access land’ by the Act.

92. DETR Consultation Paper (1998) paras 3.66–3.67.

93. DETR Consultation Paper (1998) para 3.50.

94. To be discussed below: see section ‘Re-imagining property: inclusion, propriety and rights as “what is due”’.

95. Baxi, U The Future of Human Rights (Oxford: Oxford University Press, 2002) p 77.Google Scholar

96. Recall that he is the white, male pater familias, whose powerful possessory relationship with land was, as a matter of historical fact, inextricably linked to citizenship. Thus, the white, rational, male of enlightenment liberalism was accorded a form of political and legal self-hood, while the ‘actions and intentions of women, children, “natives”… and others’ were concomitantly rendered invisible: Green, n 46 above, p 255.

97. One particularly stark example concerns the explicit discussion of the inclusory/exclusory problematic apparent in the field of women's human rights. Consider the challenge facing the CEDAW regime, which can reasonably be characterised as a manifestation of a self-consciously inclusory critical response to the endemic global invisibility and disempowerment of women. The uneasy relationship between the CEDAW Treaty norms (inclusory) and the high number of state reservations to it (exclusory) is profoundly representative of a deeply contradictory interplay concerning women's human rights and the subject of much critique: ‘[C]ertain reservations to the Convention, in particular those in relation to the adoption of policies and institutional measures to implement the terms of the Convention (Article 2), political and public life (Article 7), discrimination in the field of employment (Article 11), equality of men and women before the law (Article 15), and marriage and family relations (Article 16), might diminish the international legal norm and legitimize its violation’: Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its forty-third session, Geneva, 5–30 August 1991, UN Doc E/CN.4/Sub.2/1991/65 of 24 October 1991, at 145–46. For background see Tomasevski, K ‘Women's Rights’ in Symonides, J (ed) Human Rights: Concept and Standards (Dartmouth: Ashgate. published jointly with UNESCO Publishing, 2000) p 231 Google Scholar; H Charlesworth and C Chinkin ‘The Gender of Jus Cogens’ (1993) 15 Human Rights Q 63: L Reanda ‘Human Rights and Women's Rights: The United Nations Approach’ (No 2, 1981) 3 Human Rights Q 11.

98. D Kennedy ‘The International Human Rights Law Movement: Part of the Problem?’ [2001] EHRLR, Issue 3, 245 at 250.

99. Baxi, n 95 above, p 6.

100. ‘The cultural software of global human rights is not, of course, exhausted, though typified, by human rights norms and standards. There is more to global human rights culture than can be exhausted by often, indeed all too often, lifeless human rights instruments’: Baxi, n 95 above, p 13

101. ‘The basic contrasts seem to me to be as follows: First, in the “modem” paradigm of rights the logics of exclusion are pre-eminent whereas in the “contemporary” paradigm the logics of inclusion are paramount. Second, the relationship between human rights languages and governance differ markedly in the two paradigms. Third, the “modem” enunciation of human rights was almost ascetic; in contrast, contemporary enunciations present a carnival. Fourth, the contemporary paradigm inverts the inherent modernist relationship between human rights and human suffering’ (emphasis in original): Baxi, n 95 above, pp 27–28.

102. Baxi, n 95 above, p31.

103. Baxi, n 95 above.

104. Baxi, n 95 above, p 4.

105. Baxi, n 95 above, pp 132–66.

106. Baxi, n 95 above, pp 132, 146.

107. Baxi, n 95 above, pp 132, 146.

108. Mendoza v Ghaidan [2002] EWCA Civ 1533. In this case it was held that Art 14 (the non-discrimination provision) would be engaged even where there was ‘the most tenuous link with another provision in the Convention’. The facts of Mendoza's case fell within the ambit of Art 8 (the right to respect for the home) and discrimination by reason of sexual orientation fell within Art 14. Mendoza could, accordingly, succeed to the statutory tenancy of his deceased partner. Arguably, this reasoning suggests that the principle of non-discrimination might be one of the most powerful conduits for inclusory human rights impulses. Other cases have been notably less successful: Pye v Graham [2001] Ch 804; Family Housing Association v Donnellan [2002] IP CR 24; Castle Vale Housing Association Trust v Ghallagher [2001] EWCA Civ 944; Sheffield City Council v Hopkins [2001] HLR 12.

109. Gray, n 5 above.

110. Gray, n 5 above, at 170.

111. C B Macpherson The Political Theory of Possessive Individualism: From Hobbes to Locke (Oxford: Clarendon Press, 1962).

112. C Reich ‘The New Property’ (1964) 73 Yale LJ 733.

113. C B Macpherson Property: Mainstream and Critical Positions (Toronto: Toronto University Press, 1978) p 7.

114. Macpherson, n 113 above, p 10.

115. Macpherson, n 113 above, p 10.

116. Gray, n 12 above, at 167.

117. Gray, n 12 above. at 167.

118. See Gray, n 12 above; and Gray and Gray, n 30 above.

119. Harris, n 6 above, p 155.

120. J W Harris ‘Is Property a Human Right?’ in McLean (ed), n 3 above.

121. Macpherson, C B ‘Capitalism, and the Changing Concept of Property’ in Kamenka, E and Neale, R S (eds) Feudalism. Capitalism and Beyond (Canberra: Australian National University Press, 1975) p 119–22Google Scholar; Property: Mainstream und Critical Positions (Oxford: Blackwell, 1978) pp 205–206, cited by Harris, n 120 above, p 73.

122. See eg Mary Ann Glendon's incisive critique of the hyper-individualism inherent in modem American rights discourse: Glendon, M A Rights Talk: The Impoverishtment of Political Discourse (New York: The Free Press, 1991)Google Scholar.

123. “‘Reductive” is used here to mean any explanation of a phenomenon or concept which elevates one aspect over others and makes a claim, explicit or implicit, to explanatory completeness. The phenomenon or concept in question is thereby reduced’ to the aspect disproportionately elevated': A Grear ‘Theorising the Rainbow? The Puzzle of the Public-Private Divide’ (forthcoming. 2003).

124. Gray, n 12 above, at 168.

125. Gray, n 12 above. at 169.

126. Harris, n 6 above, p 151.

127. Gray and Gray, n 3 above, p 13.

128. Gray and Gray, n 3 above, p 13.

129. Criticisms of historically real exclusory constructions that favour the submerged beneficiary of law's alleged neutrality in a liberal political system; apparent vulnerability to dangerous ideological subversion by the ideology of privatisation; criticism of reduction in contemporary rights-talk and political discourse to atomistic claims of self-interest: Glendon, n 122 above. (On constructions of rights that can be balanced against the individualism/atomism critique, see C Sunstein’ Rights and Their Critics (1995) 70 Notre Dame LR 727). It is arguable that the danger presented by global capital is, in some sense, yet another assertion of self-interest - this time corporate commercial self-interest. This is alarming in the light of the fact that ‘the community of multinationals maintains … solidarity against the imposition of new human rights obligations on their structure and operations. This is clearly manifest in the recent successful efforts to exclude multinationals from the jurisdiction of … [the] [I]nternational [C]riminal [C]ourt and since the 1970s preventing all UN-based efforts at a Code of Conduct for Transnationals’: Baxi, n 95 above, p 149.

130. Finnis, J Natural Law arid Natural Rights (Oxford: Clarendon Press, 1980)Google Scholar.

131. Finnis, n 130 above, p 205.

132. Finnis, n 130 above, pp 305–206.

133. Finnis. n 130 above. p 209.

134. Finnis, n 130 above, p 308.

135. The phrase is Finnis’: n 130 above, p 209.

136. The relationship between rights and duties is complex, and certainly an over-emphasis on duties would undermine certain fundamental human rights norms. However, it has often been argued that contemporary rights discourse has under-emphasised duties and over emphasised rights as individualistic, atomised claims of self-interest. The debates surrounding the Banjul Charter, with its extensive emphasis on duties which move far beyond duties correlative to rights. is instructive in this regard.

137. Consider eg Tesco PlC'S plans to invoke human rights arguments against the European Court of Justice's ruling that it could not sell ‘grey import’ Levi Strauss jeans: Zino Davidoff SA v A & G Imports Ltd, Levi Strauss & Co v anor v Tesco Stores Ltd; Levi Strauss & Co v Costco Wholesale UK Ltd Joined Cases C 414/99 - C 416/99 [2002] CMLR 1. Tesco will invoke the right to freedom of expression, the right of freedom to own and deal in property and the right not to be discriminated against. For further detail, see Wall Street Journal (Europe) , 18 December 2001; Financial Times , 18 December 2001; Republic , 20 May 2002.

138. In relation to inclusion as a necessary precondition of law (in particular, of criminal law), see A Duff ‘Inclusion and Exclusion: Citizens, Subjects and Outlaws’ (1998) 51 CLP 241. Duff argues that any ‘plausible interpretation’ of the concepts of law and legal obligation, entail certain essential conditions, one of which is a certain notion of inclusion: ‘those bound by the law must be included within, as members of, a community whose law it is; and that notion of inclusion has normative substance’: at 242.

139. Gray and Gray, n 3 above, p 15.

140. Seen 108 above and associated text.