100%(1)1 out of 1 people found this document helpful
This preview shows page 6 - 8 out of 162 pages.
Critics argue that it creates a narrow and biased perception of the law. •Criticism: There is no homogenous position, as there are liberal feminists and radical feminists. Pluralist Approach •Stephen Munzer in A Theory of Property (1990) argues for an eclectic pluralist approach based on three main pillars: 1.Utility and efficiency 2.Justice and equality 3.Labour and desert •Criticism: This eclecticism can be a form of cherry picking in practice and certain values will be emphasised at certain times in different contexts at the expense of the other values. •For example, the neo-liberal theory of the Chicago School of Economics, popular before the 2008 GFC, accords with utility and efficiency, but at the detriment of justice and equality. •Conversely, Keynesian state intervention, popular as a response to the 2008 GFC, accords with justice and equality, but at the expense of private entrepreneurialism that values utility and efficiency. Historical Changes (according to philosopher Crawford Brough Macpherson writing in the 1970s)•Feudalism: Property was inclusive in nature and was a right of access to the accumulated productive resources of society. Land was collectively shared and not readily marketable. •“Liberal seventeenth century”: Property began to be seen on individualistic terms as being synonymous with a private right to exclude others. So much so “collective property” became almost a contradiction in terms. •Twentieth century welfare state: The state plays a more active role in providing employment through a large public sector, and providing a safety net to offer public housing to the poor and helping citizens to purchase real property (e.g. First Home Owners Grant in NSW). Historical Changes (according to Kenneth Vandevelde writing in 1980) 6
Semester One 2019•The shift from natural rights in property to dephysicalised rights in property is a movement towards an unbridled politicisation of property and hence the destruction of the authority of law. -Doctrinal Dimension Property and Contract •A contract entitles the plaintiff to sue for damages where the defendant caused the breach. Therefore, it is a personal right in personam, and third parties generally are not privy to the contract (Coulls v Bagot’s Executor and Trustee Co Ltd(1967) 199 CLR 460). •Whereas property law is concerned with a right over a thing. Therefore, it is a proprietary right in rem. •This means in property law, the plaintiff has two separate remedies: a contractual remedy against the original party, and a proprietary remedy against a third party. •For example, if a landlord agrees to grant me a lease, but before I take possession the landlord grants a lease to a third party, I can either sue the landlord for breach of contract (personal right) or sue the third party based on the principles of property law in my lease agreement that confers protection against those with whom I have not contracted (proprietary right).