Questioning Property Paradigms - Privilege, Race and Gender
- Elliot Tierney
- Aug 8, 2022
- 4 min read
History of Property:
Saxon Landholding:
Land within a village was typically divided between the manor house, church, mill, pasture etc.
Rather than owning an entire field, each family would have a strip (or multiple depending on their size and ability to work it).
The lord of the manor possessed more land than anyone else in the village but did not own even the majority of it. The King did not ‘own’ the land of their subjects, so could not give it away to other nobility.
Land management was communal, meaning decisions were made by the village people as to how the land was to be used. The only land that was private was around individual family homes, though property enclosure didn’t exist.
Norman Conquest:
After the arrival of the Normans, the concept of feudalism was brought with the ‘Norman law’. Land enclosure became common during this time.
Feudalism:
The king took sovereignty and ownership of all the land in his domain (England) and then redistributed it among loyal nobility, who in turn would distribute it among loyal knights. These became the landed gentry and aristocracy.
This regime works from the Biblical notion of the divine right of kings.
The ‘Fiction’ of Feudalism:
By the end of the 12th century, the direct and personal distribution of land had been completed. The ideas created by the feudal system continued to live on.
Enshrined Feudal Ideas:
All land, housing, farms and immovables are described as an ‘estate’ in land. These are the ownership rights.
The Crown is still considered to be the primary and ultimate owner of all estates. If someone dies without any heirs, the land will revert back to the Crown.
There is (almost) no way to obtain a legal right to land under English law other than by following the feudal system. This is because there were no legal grants of land that predate the Norman conquest.
Post Feudal / Modernisation:
While land is still seen as status, it is now increasingly a commodity that can readily be bought, sold and exchanged. The idea of land ownership is almost fetishized, particularly in the media.
The Three P’s:
Patriarchy
Paternalism
Primogeniture (Firstborn Child)
Post 1925, there was slow acceptance of women’s property rights and of joint / shared ownership of common spaces. [1]
Post-Thatcher, large amounts of public properties have been transferred into private ownership through the ‘right to buy’ scheme.
Historical Systemic Exclusion:
Religion:
Jewish people were not allowed to own land and were even the chattel of the king.
‘It was then that William of Normandy brought over Jews from his French territory to help colonise his new kingdom... Jews did not have a set place in this hierarchical chain, a niche had to be created for them, and their right of residence was made dependent on the will of the Crown. It was a two-way relationship: they being answerable directly to the king and the king being their protector… When their legal status was formalised, they were described as "chattels" of the king and physically belonging to him. In fact, like property, the king could mortgage his entire Jewry when needing to raise revenue. He could also tax them directly without permission of Parliament.’ [2]
Jews could lend money, which was something that Christians could not. However, there was little recourse if a nobleman refused to pay their debt to a Jew, or if they died before the debt was repaid.
Race and Culture – Whiteness as Property:
Throughout history, those who were not white often were not treated as full legal persons. This created the idea in property of the right to exclude others from ownership.
Slavery:
If a person cannot own anything, even their own body, they cannot exclude others from trespassing on their person and exploiting them. This was the case with slavery.
‘White identity and whiteness were sources of privilege and protection; their absence meant being the object of property.’ [3]
The Barbados Slave Code of 1661 set the parameters of the legal codification of slavery. Race was a determining factor in separating people. Black slaves were seen as chattels who could not own property in their own right. Similar slave codes were adapted in other English colonies in the Americas.
Massive investments were made into slaves. After the abolition of slavery during the 19th century, slave owners were compensated for the loss of their property. The slaves themselves did not receive any compensation.
Natives:
When colonists landed in the Americas and elsewhere, the race of the natives ‘rendered their first possession rights invisible and justified conquest’. [4] Native land usage was considered wasteful possession, but not true ownership.
Gender:
Women typically could not be property owners and were often considered the property of their fathers / husbands. In the past, dowries were common, thus commodifying marriage.
Unmarried women could retain property rights they had inherited from family. Once a woman married, the couple became one entity in law, which gave all the rights to the husband.
Gradually, women gained further rights at the end of the 19th century.
Resources:
References:
[1] Note: Enactment of Law of Property Act 1925 [2] The JC, ‘Magna Carta’s Three Jewish Clauses’ (The Jewish Chronicle 25 November 2016) < https://www.thejc.com/news/all/magna-carta-s-three-jewish-clauses-1.56652> accessed 27 January 2022 [3] Cheryl Harris, ‘Whiteness as Property’ 106 Harvard Law Review (1993) 1721 [4] Cheryl Harris, ‘Whiteness as Property’ 106 Harvard Law Review (1993) 1721
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