Introduction The provocative title statement is In Part 2, an alternative, competing proposition Part Many EW legal system histories have Definitions Real The respective real and personal property definitions The adverse possession rule, and the Chattels The second EW real property legal The personal property rights that are Chose The entire \u2018chose\u2019 concept is the third By further example, the Law of Property Property The fourth cited Part 1 example Commentary The various Part 1 examples are not It is not doubted that as a concept, Dorfman (2010) rephrases the core title It is equally apparent that the title Part The primary challenge made to the title ECHR The ECHR provisions are a natural The general ECHR Article 8 rights test is This test, like the UDHR 1948 provisions Immigration EW policy makers have been attempting to It is noted that a fair balance might not This rise to prominence of all human Article An ECHR Article 9 example assists in The following ECtHR passage is especially Commentary The various Part 2 Article 8 and 9 Similarly, Article 9 \u2018manifestation of Part The various points developed in Parts 1 References Cases<\/strong><\/p>\n Legislation and rules<\/strong><\/p>\n Texts and journals<\/strong><\/p>\n Other sources<\/strong><\/p>\n 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. <\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[85],"class_list":["post-264","post","type-post","status-publish","format-standard","hentry","category-example-essays","tag-uk-law"],"yoast_head":"\n
\n<\/strong><\/p>\n
\napproached from two perspectives in this critical discussion. In Part 1, the
\ntitle statement strengths are reflected by the different ways that property
\nrights have attracted such extensive England and Wales (EW) legal system
\nattention. The accepted real and personal property definitions (as supplemented
\nby modern day Intellectual Property (IP) rights) lend seemingly compelling
\nsupport to the view that property rights of all kinds dominate how individuals
\n(persons and companies alike) are connected to the legal system. It is
\nsuggested that no sensible person can doubt that property-based relationships
\nhave been a core legal system feature for centuries (Choo, 2018, p.394).<\/p>\n
\nis advanced that raises significant doubts concerning present day<\/em> title statement accuracy. It has become apparent that human
\nrights concepts are now a dominant (and seemingly pervasive) connection that many
\npeople rely upon when claiming a contemporary legal system \u2018sense of belonging\u2019.
\nEuropean Convention on Human Rights 1950 (ECHR) Article 8 privacy and family
\nlife guarantees, Article 9 religious belief, and selected EW case law examples
\nare used to support this human rights-based counter-argument. The different
\nproperty based relationships that exist between the EW legal system and its
\nsociety remain important. However, these Part 2 examples illustrate how human
\nrights\u2019 universality ensures that anyone (including persons without any property
\nrights to assert), can secure effective legal system recognition and rights
\nenforcement in a much wider range of circumstances than more limiting
\nproperty-based relationships. <\/p>\n
\n1: The title statement principled foundation <\/strong><\/p>\n
\nunderscored the different ways the property rights have been regarded as
\nfundamental to how individual citizens interacted with the legal system. Choo
\nand Hunter (2018) explain how until 1918, EW criminal jury eligibility depended
\nupon being (1) male, and (2) satisfying the property ownership requirement
\n(\u2018mere\u2019 tenants were ineligible for jury duty (pp.194, 195, citing Juries Act
\n1825, s.1, Representation of the People Act 1918, s.1). The system traditionally
\nencouraged two important notions; (1) property owners were legal system
\nstakeholders that could be trusted to perform this important civic duty; (2)
\nall legal rights were derived from property rights (Katz, 2015, [2.1], [7.1]). <\/p>\n
\n\u2013 three examples <\/em><\/p>\n
\nproperty <\/em><\/p>\n
\nare consistent with the property rights primacy understandings encouraged by
\nthe title statement. The laws that govern real property rights (land and any
\nfixtures) are intricate, a reflection of their overall EW system importance (Acemoglu
\n& Johnson, 2005, p.949). Of numerous examples, three invite specific
\ncritical discussion attention as ones bringing the notion of legal system
\n\u2018belonging\u2019 into clearer focus. The first concerns the different ways in which
\nEW legal principles are employed to resolve disputes concerning title claimed
\nover unregistered land. The relatively recent Land Registration Act 2002
\nprovisions did not disturb this ancient property law rule: title to unregistered land may be extinguished
\nwhere a claimant demonstrates they have enjoyed 12 years of undisturbed (adverse)
\npossession, as contradicting any documents otherwise proving legal title (s.96).\n<\/p>\n
\nnotion that by possessing real property in ways that are \u2018open, quiet, and
\nnotorious\u2019 can create a legally enforceable right (Limitation Act 1980, s.15)
\nis a powerful testament to the title statement legal system \u2013 sense of
\nbelonging argument (JA Pye (Oxford) v
\nGraham <\/em>(2002), [25], [46]). In other words, an individual can bring
\nthemselves within legal system protections by proving a connection to land that
\nexists independent of their lack of registered title.<\/p>\n
\nversus fixtures<\/em><\/p>\n
\nframework (one that also includes personal property concepts) is the well-known
\nchattels versus fixtures distinction (Williams 2019, pp.2-4; Thomas 2015,
\np.347). As a general rule, where what might otherwise be moveable, personal
\nproperty such as equipment, lighting systems, or stoves are installed in
\nbuildings, or upon land where they cannot be removed without damage being
\ncaused to the item, or underlying property, the item becomes a fixture deemed
\npart of the real property (Technical Bulletin, 2013, p.111; Elitestone v Morris<\/em> (1997). Commentators
\nincluding Luther (2008, p.574), and Holmes (2016, p.149) each emphasise the
\nimportance that EW law places on being able to effectively determine chattel \u2013
\nfixture status.<\/p>\n
\ninextricably linked with these fixtures authorities also contribute to the
\ntitle statement \u2018belonging\u2019 claim. The sweeping statutory personal chattels definition
\nprovide by the Administration of Estates Act 1925 includes the following:
\n\u2018personal chattels\u2019 includes any tangible movable property, other than any such
\nproperty consisting of \u2018money or securities for money\u2019 (s.55). This definition
\nreinforces the notion that property rights claims will likely arise in many
\ndifferent forms, thus correspondingly increasing the ways in which individual
\nclaimants, or defendants will be brought within the broad EW legal system ambit
\n(McKendrick 2016, p.392).<\/p>\n
\nin action <\/em><\/p>\n
\nselected example demonstrating how EW law has traditionally emphasised that personal
\nproperty rights are fundamental to overall legal system function, and its operation.
\nA chose<\/em> as two possible forms: (1) as
\npersonal property (chattel) that can be possessed (like a vehicle, or mobile
\nphone); or (2), as a \u2018chose in action\u2019, legal shorthand for an enforceable legal
\nright, such as securing a debt repayment under an instrument (loan agreement),
\nrecovery of damages, or compensation (McKendrick, p.971). The EW authorities
\nconfirm the significant body of law that has been developed over time regarding
\nhow choses in action may be assigned, given they are impossible to physically transfer
\nbetween persons (Tam, 2017, p.537). <\/p>\n
\nAct 1925 provides that where an individual makes an absolute assignment by writing
\n\u2018of any debt or other legal thing in action\u2019, whereby the debtor receives express
\nnotice in writing of the assignment, will be given full legal effect (s.136).
\nThe fact that a bill of sale, a document that only confirms a physical property
\ntransaction, can be used as security for loans or other commercial trading is
\nfurther evidence that property rights and relationships are the foundation for
\nnumerous individual legal system interactions that contribute to \u2018belonging\u2019 (Log
\nBook Loans v OFT (2011), [3], [22]).<\/p>\n
\nownership \u2013 Locke and IP rights<\/em><\/p>\n
\neffectively brings the title statement full circle from the notion that EW
\n\u2018rights\u2019 have been rooted in property rights definitions. Who actually owns
\n\u2018property\u2019, and how ownership rights are created trace their 21st<\/sup>
\ncentury understandings to Enlightenment age thinkers like Locke (1698, Chapter
\nV (110, 102)). In an era when private property rights concepts were not yet
\nfully formed, Locke contended that anyone who was able to apply their skills or
\ningenuity to make any property more valuable was entitled to the benefits. A
\nkey benefit that such individuals acquired through improving, or capitalising
\nupon property was the right to exclude anyone else from enjoying such
\nimprovements (Locke, 102). Locke (1698) is thus rightly regarded as an
\nimportant contributor to modern IP rights theory. These rights (notably
\ncopyrights, patents, and trademarks) are often disconnected from any real or
\npersonal property rights. However, IP rights are recognised as having enforceability
\nagainst the world, and thus rights with often significant monetary value
\n(Waelde, 2016, pp.12, 14, 41).<\/p>\n
\n<\/em><\/p>\n
\nsuggested as providing definitive proof that the EW legal system has a property
\nrights foundation. What these examples tend to confirm is the multidimensional
\nnature of all real, personal, and other intangible property law concepts that
\nnecessarily ensure that property rights claims might potentially impact almost
\nanyone. The noted EW property law frameworks plainly encourage significant
\npotential for individual citizens\u2019 engagement with the legal system, and thus
\n\u2018belonging\u2019 to it within title question meaning. <\/p>\n
\nproperty rights also have an amorphous quality, one that Gray (1991), and other
\ntheorists argue \u2018\u2026 vanishes into thin air\u2019, given that it has \u2018conceptual
\nfragility\u2019, and only exists as \u2018the individual and collective human response to
\na world of limited resources and attenuated altruism\u2019 (pp.306, 307). The fact
\nthat some property rights theories may be vulnerable to scholarly challenge
\ndoes not detract from the fact that EW legal system evolution has so often been
\ndriven by property rights claims (Dorfman, 2010, p.1). This reality has ensured
\nmore individuals have either asserted, or defended property-related claims, and
\nthus been made part of the system.<\/p>\n
\nstatement point in this attractive fashion: \u2018Private ownership (and private
\nproperty more broadly) has been a core component of private law for many
\ncenturies\u2019 (p.2). It is suggested that the Part 1 examples collectively
\ncontribute to the notion that one cannot readily imagine the current EW legal
\nsystem having evolved as it has done, without property rights issues having
\nstrongly influenced it current scope and dimensions. This proposition acquires
\neven greater probative effect when areas such as sale of goods, trusts, and consumer
\nprotection are factored into this discussion (Consumer Rights Act 2015,
\nSchedule 1) \u2013 each of these modern EW legal system components has obvious property
\nrights roots.<\/p>\n
\nstatement \u2018belonging\u2019 concepts demands consideration from a second perspective:
\nhave property rights remained the most important basis on which individuals are
\nconnected to the EW legal system? The Part 2 counterarguments are advanced with
\nthis point in mind. <\/p>\n
\n2: Human rights and title statement counterarguments<\/strong><\/p>\n
\nstatement also has historical evidence at its foundation, albeit a history that
\nis more recent than Locke (1698), or the Part 1 real and personal property
\nownership concepts. It is the suggested, steady and inexorable rise of the modern
\n\u2018human rights-based society\u2019 that provides the following Part 2
\ncounterarguments with their power (Hoffman, 2009, p.416). The effective
\ncommencement points from which all current human rights developments originate
\nare the Universal Declaration of Human Rights (UDHR, 1948) guarantees
\n(preamble). The UDHR 1948 reinforces this vital concept, one is equally an EW
\nsystem feature by virtue of its UK ratification, and subsequent inclusion
\n(expressly, or by implication) in EW law (Von Bernstorff, 2008, p.908). Each of
\nthe defined human rights (including prohibitions against any discrimination on
\nthe basis of race, creed, colour, gender, or national origin, Article 1) are
\nnot only applicable to everyone on Earth. They exist independently from
\nproperty ownership, or any other legal rights. It is the implicit UDHR 1948
\nnotion that human rights are the highest, and thus the most important rights
\nthat have contributed to the transformed EW legal system discussed here (Von
\nBernstorff, pp.908-911).<\/p>\n
\nArticle 8<\/em><\/p>\n
\nextension of UDHR 1948 concepts, as the ECHR literal language confirms (ECHR, preamble).
\nArticle 8 privacy and family life protection case law is a useful selected Part
\n2 example for this reason (Unsworth 2017, p.14). As importantly, the different
\nways that Article 8 has been successfully utilised by claimants in numerous EW
\nimmigration and asylum cases provides a second justification for this
\nselection. By their nature, claims involving persons seeking leave to enter, or
\nremain in the UK are often antithetical to property rights recognition and
\nenforcement (Walker, 2011, pp.3, 4). These claimants may be fleeing desperate
\nand dangerous home country circumstances, and their applications are entirely
\nindependent from the Part 1 notion that property creates a fundamental sense of
\nEW legal system belonging (Slapper & Kelly 2015, pp.135, 140).<\/p>\n
\nnow well-entrenched in EW and broader European Court of Human Rights (ECtHR)
\njurisprudence. Respect for private and family life rights (Article 8(1)) must
\nbe balanced against the following competing considerations: Article 8(2)
\nlegality, necessity and proportionality (Razgar)
\nv SSHD <\/em>(No.2) (2004), [22]). The test is readily summarised: (1) is an
\nArticle 8(1) right engaged; (2) has a State agent interfered with this right;
\n(3) is the interference legally justified; (4) does this State interference
\nnecessarily pursue a legitimate Article 8(2) aim; and (5), is the interference
\nnecessary in a democratic society, and thus provide a proportionate response?
\n(Clayton, 2014, pp.359, 360).<\/p>\n
\nfrom which they take their inspiration, have no direct connection to
\ntraditional property rights theory. Whilst Article 8 make no express reference
\nto immigration or asylum claims, this ECHR provisions are ideally suited to
\nsuch proceedings where family units are frequently impacted by the possibility
\nthat members may be legally separated (Huang
\nv SSHD<\/em>, (2007) [20]). At its essence, the five-part Article 8 test will
\ninvariably require EW courts to determine how best to strike a fair balance
\nbetween an individual\u2019s rights, and the interests of the community that are
\ninherent across the entire ECHR (Razgar,<\/em>
\n(2004), [17], [20]). The proposition that these claims also encourage a sense
\nof title statement legal system belonging is thus compelling \u2013 applicants
\nworking within the system in ways disconnected from property law principles. <\/p>\n
\nexamples <\/em><\/p>\n
\nlimit the effects attributable to Article 8, and the perception that the ECHR
\nhas badly compromised EW ability to control the flow of undesirable persons
\nacross national borders (Immigration Rules Statement of Changes (2012), [2.1]).
\nAmongst other assertions, the 2012 Statement purports to reflect Article 8\u2019s
\n\u2018qualified nature\u2019, where a \u2018correct balance\u2019 is described in these terms: individual
\nfamily life and the public interest in safeguarding UK economic well-being \u2018by
\ncontrolling immigration and in protecting the public from foreign criminals\u2019
\n([2.1]). <\/p>\n
\naccord with another person\u2019s \u2018correct\u2019 balance; such language will naturally
\nlead to legal conflicts (Barden, 2013, p.174). The cases reflect an ongoing tug
\nof war between EW agencies seeking to impose more restrictive immigration and
\nasylum rules, and the EW courts seeking to apply the ECHR to achieve the
\nbalancing of interests outlined above (BS
\n(Congo) v SSHD<\/em>, (2015) [5]). The Court of Appeal has frequently emphasised
\nthat it will not give retrospective effect to any EW immigration authorities\u2019
\nefforts to limit Article 8, except as provided by the Razgar<\/em> (2004) guidance noted above (BS (Congo), [23]).<\/p>\n
\nissues within the EW legal system does not mean that Part 1 property rights
\nhave been supplanted, or even diminished by the suggested human rights rise to
\npresent day EW legal system prominence. The different legal areas where
\nproperty law principles remain the EW legal foundation have not been altered. The
\nbroader EW societal appreciation that \u2018rights\u2019 are now integral to how modern
\nEW society understands itself is independent of property rights; the following
\nexamples lend further support to this contention. <\/p>\n
\n9 rights examples<\/em><\/p>\n
\nappreciating why rights have become emblematic of how contemporary EW society
\nmust be understood. ECHR Article 9 provides (amongst other protects), that
\neveryone has the freedom to believe in a religious faith (or hold no religious
\nbeliefs), without interference by a State authority (Article 9(1)). The ways in
\nwhich the Eweida<\/em> v British Airways<\/em> (2010) \u2018manifestation of religious belief\u2019 claim
\nwas debated by EW academic commentators and mainstream media outlets alike
\nconfirm how deeply embedded rights have become ([20], [22]). The claimant had
\nargued that her employer had engaged in actionable discrimination on religious
\ngrounds, by enacting a dress code that prohibited employees from wearing any
\nvisible religious symbols (2010, [4]). The fact that this claimant was denied a
\nremedy at the Court of Appeal level (2010), yet succeeded before the ECtHR in
\nestablishing a denial of her individual rights ignited a significant public
\ndebate that has persisted (Eweida v UK<\/em>
\n(2013), [30]; Gibson, 2013, p.578).<\/p>\n
\ninstructive when the entire question of an EW \u2018rights\u2019 society is carefully
\nconsidered. The Court found that this applicant\u2019s behaviour was a manifestation
\nof her religion. The employer\u2019s refusal to allow her to remain employed whilst
\nvisibly wearing a small crucifix was n interference with that right (Eweida,
\n2013, [24]). As importantly, UK law did not make any provision for how wearing
\nreligious symbols and clothing in the workplace should be regulated ([25],
\n[26]). The Court applied a similar test concerning employer dress code legitimacy
\nand \u2018proportionality of the measures\u2019 test as that outlined regarding Article 8
\nabove. Whilst the Court agreed that the UK lack of specific protection under
\ndomestic law did not mean that the applicant\u2019s Article 9 rights were
\ninsufficiently protected, she had established an Article 9 violation in this
\ninstance ([89]\u2013[92]). No property rights were asserted, yet no doubt exists
\nthat this rights-motivated applicant \u2018belongs\u2019 with the EW legal system.<\/p>\n
\n<\/em><\/p>\n
\nexamples discussed here prompt this brief independent commentary. As with the
\nPart 1 property law cases, it is not possible to provide definitive proof of
\nthe suggested EW legal system transformation from a property based, to a human
\nrights dominated system on the basis of these few examples. However, it is very
\nclear that by upholding the ECHR rights universality concepts that have their
\nUDHR 1948 origins, there is no longer any need to have a property rights
\nconnection, to achieve \u2018belonging\u2019 within the EW legal system. The immigration
\nexamples cited above did not have any connection with property rights, yet the
\nEW courts were prepared to ensure an appropriate rights-based remedy was
\navailable. <\/p>\n
\nreligious belief issues\u2019 cases have assumed immense contemporary EW societal
\nimportance (of which the Muslim headscarf disputes) are a further, often highly
\nprovocative example; Steinbach, 2015, pp.235, 240). It is apparent that EW
\nlegal system focus has been emphatically shifted from its undoubted property
\nlaw points of emphasis, to a broader, more amorphous, but remarkably important
\nhuman rights orientations.<\/p>\n
\n3: Conclusions <\/strong><\/p>\n
\nand 2 collectively contribute to this brief Conclusion that also extends
\ndirectly from the Part 2 commentary presented above. The importance that the EW
\nlegal system traditionally placed on property rights, and how these were
\ninterpreted in real, personal, and (later) more intangible IP rights contexts
\nis undoubted. The emergence of human rights protections as an EW legal system
\nfocal point, with the Part 2 ECHR Article 8 and 9 authorities providing strong
\nsupport, has dramatically altered how the EW legal system must be appreciated. Human
\nrights are now an ever-present legal system feature, one that does not diminish
\nproperty rights. Instead, this human rights orientation has changed the ways
\nthat individuals can \u2018belong\u2019 to the legal system.<\/p>\n
\n(Open U)<\/strong><\/p>\n\n
\n
\n
\n