ARTICLE: Property and the Definition of Slavery

Currently there is no clear understanding of the meaning of ‘slavery’ in modern international law. While generally it is accepted that the
authoritative definition of slavery is provided by Article 1 of the Slavery Convention 1926, in recent times slavery has been understood in such a wide variety of ways that effectively it is a meaningless term. This paper reflects on this interpretation problem and aims to redress this balance by reclaiming the core meaning of the legal definition. It applies property law perspectives to explain the conception of ownership invoked by Article 1, to argue that it remains relevant and to explore how it might be applied in identifying modern cases of slavery.

A Case for Humanity in the Law of Rape.

One of Irigaray’s most insistent criticisms of the operation of patriarchal law is its overwhelming focus on the protection of property at the expense of law that regulates relations between and amongst persons. This paper argues, with reference to Irigaray’s work, that the conceptual change involved in such a reorientation of law’s focus has important implications for the legal perception of the harm of rape and woman’s sexuality. The possessive paradigm operates in the law of rape by disassociating the harm of rape from its psychic and subjective impact and encouraging the ‘simple’rape/ ‘real’ rape dichotomy. In returning subjectivity to woman herself we can begin to see perhaps how the crime of rape involves a harm to woman that affects the whole of her being, and to be. Such a reading allows the law to perhaps move away from understanding rape as a violation of undifferentiated bodies to a violation of the innate ‘virginity’ of woman.

Possession Taken by Theft and the Original Acquisition of Personal Property Rights

This paper queries the soundness of the view that wrongful possession (eg a thief’s possession of goods he has stolen) should be protected by the standard actions for interference with goods. It uses close historical analysis of the development of the relevant concepts through the cases to argue that this is not a proposition that is compelled on the authorities, nor one demanded as a matter of principle. It then abstracts to consider the implications of this argument at a theoretical level, exposing great need for development in the common law’s basic principles of possessory protection. It argues innovatively that the objects of the law might be better served by the creation of a more limited form of possessory protection, achieved through the possessor’s acquisition of a personal right, and correlatively that the values that underpin and justify our basic rules of possessory protection entail a more nuanced response to matters of property acquisition.

The Revival of Private Property and Its Limits in Post-Mao China

This monograph examines the nature and significance of the re-emergence of private property in rapidly changing post-Mao China.

In examining this issue, the study explores a key dichotomy in Chinese law, that is, ‘public versus private’, and examines the manner in which the Chinese define ownership. The study stresses the importance of lack of clarity in the boundaries between the public and the private in property rights.

While there is a limited move towards the recognition of private property in real estate in contemporary China, this analysis also shows that ownership in the law, and ownership as understood and practised socially, often diverge significantly.

From the Qing dynasty reforms of the late nineteenth century onwards, ‘modernist’ law and entrenched social practice have often opposed each other. In contrast to the official, and indeed legal, support for unitary and exclusive property rights, the reality of the property regime has been a fragmentation of property rights. ‘Modern’ conceptions and theories of property rights emerged in the context of nation-building from the late Qing onwards, and unitary and exclusive property rights were considered as ‘badges’ of modernity.

These conceptions and theories served (and still serve) the purposes of control and governance but were, and still are, often resisted in social practice and popular thinking, leading to alienation and conflict. As a result, analysis of the nature and the social and political implications of re-emerging private property rights provides important insights for our understanding of the changing nature of modern China.

Intellectual Property and the EU’s Deep Trade Agenda

The EU is considered to be one of the main proponents of what has been called the deep trade agenda—that is, the push for further trade liberalization with an emphasis on the removal of domestic non-tariff regulatory measures affecting trade, as opposed to the traditional focus on the removal of trade barriers at borders. As negotiations on the Doha Development Round have stalled, the EU has attempted to achieve these aims by entering into comprehensive free trade agreements (FTAs) that are not only limited exclusively to tariffs but also extend to non-tariff barriers, including services, intellectual property rights (IPRs), competition, and investment. These FTAs place great emphasis on regulatory convergence as a means to secure greater market openings. The paper examines the EU's current external trade policy in the area of IP, particularly its attempts to promote its own regulatory model for the protection of IP rights through trade agreements. By looking at the IP enforcement provisions of such agreements, the article also examines how the divisive issues that are currently hindering the progress of negotiations at WTO level, including the demands from developing countries to maintain a degree of autonomy in the area of IP regulation as well as the need to balance IP protection with human rights protection, are being dealt with in recent EU FTAs.

BOOK: Property Rights and Human Rights in a Global Context

Property as a human rights concern is manifested through its incorporation in international instruments and as a subject of the law through property-related cases considered by international human rights organs. Yet, for the most part, the relationship between property and human rights has been discussed in rather superficial terms, lacking a clear substantive connection or common language. That said, the currents of globalisation have witnessed a new era of interrelation between these two areas of the law, including the emergence of international intellectual property law and the recognition of indigenous claims, which, in fundamental ways, speak to an engagement with human rights law.

This collection starts the conversation between human rights lawyers and property lawyers and explores analytical approaches to the increasing relationship between property and human rights in a global context. The chapters engage with key theoretical and policy debates and range across three main themes: the re-evaluation of the public/private divide in the law; the tensions between the market and social justice in development and the balance between the rights of individuals and those of communities. The chapters adopt a global, comparative perspective and engage in case studies from countries including India, Philippines, Brazil, the United States, the United Kingdom and includes various regions of Africa and Europe.

Property and Emotions

Relatively little has been written on the connection between property and emotions from a legal perspective, despite the centrality of property in everyday life and the complex relationships that exist between owners and their property. Scholars working in other disciplines have analyzed these links, identifying ‘proprietary’ emotions and corresponding emotional traits. However, little has been mapped onto the field of law. This paper looks at key emotions surrounding property as identified in psychological and, to a lesser extent, sociological literature. After mapping these onto selected areas of property law, it posits the need for a deeper and more collective field of inquiry.

Commentary on An Enquiry into the Nature and Origin of Literary Property (1762)

One of a number of published commentaries contributing to the mid-eighteenth century debate concerning the nature of literary property. The author of An Enquiry sought to repudiate the concept of a natural authorial property right existing at common law. In so doing, he specifically engaged with various aspects of William Warburton's earlier commentary (see: uk_1747), as well as presenting arguments that drew upon the nature of property in general, the differences between the right claimed by proponents of the common law right and other acknowledged incorporeal properties, the similarities between patents and copyright, the history of literary property, the experience of other jurisdictions (drawing upon Venice in particular), and the consequences that would follow from conceding the existence of a perpetual right both for authors in particular and society in general. This commentary, in turn, drew its own response in the guise of A Vindication of the Exclusive Rights of Authors, to their own work (1762).

Commentary on Maugham's Treatise on the Laws of Literary Property (1828)

The first British legal treatise dedicated specifically to the law of copyright written by a strong advocate of the common law rights of the author. Maugham, in addition to providing a commentary upon the law of copyright, also used his work to lobby for both an extension to the copyright term (ideally resulting in a perpetual right) and a reduction in the library deposit requirements (arguing that authors should only be required to deposit one copy of their work for the British Museum). In proselytising the need for a change to the law in both areas he drew frequent comparisons with the law of other jurisdictions (in particular France and Germany). The work became a standard point of reference for many British and American authors who followed.

Whose Corruption? Which Law? Law’s Authority and Social Power

This paper focuses on the concept of ‘legal but corrupt’ from a pluralist perspective. I argue that the naming and ‘discovery’ of corruption relies on an authority to scrutinise and investigate institutional conduct. The plurality of state and non-state laws under which we are governed sets limits however on any institutional capacity to name and so discover misconduct. The paper focuses on the scandals involving the Catholic Church both in Ireland and in the United States and from there I examine how the state’s power to intervene in alternate institutions is conceived.