land ownership was {Re: Discipline...

rc-am rcollins at netlink.com.au
Wed Feb 17 21:56:31 PST 1999



>>Still, this dispossession was legal in a sense. After all, the
peasants did
>>not have property rights in the narrow sense. They only had
traditional
>>rights. As markets evolved, first land-hungry gentry and later the
>>bourgeoisie used the state to create the legal structure, which
could
>>abrogate these traditional rights (Tigar 1977).
>
>In Britain the concept of "common law" was, and to some extent still
is,
>well enshrined in its legal system. Generally, the peasants were
>unlawfully and forcefully dispossessed. Those with the money, the
>dispossessors, could apply to Parliament for an Act to be passed
which
>would retrospectively legalise the process.

a slightly different occassion of dispossession... indigeneous peoples on this continent were illegally dispossessed AFTER being declared subjects of the british crown the moment the british flag was hoisted, which gave them rights under common law, including the right of possession. so, here too it was illegal; though, as recent cases have shown, the dispossession was in fact, rather than in law, over all crown lands. the crown would hand out licences (but not rights of ownership) to squatters, but this has also been shown to be illegal. the 'restrospective legalisation' which finally legalised dispossession did not actually arrive until this decade, when (this legal form is something specific to australia) pastoral and mining leases were transformed into freehold in the biggest land grab of this century. the battle now is over whether such a decision requires compensation - which it clealry does under both common and international law.

the fiction which was used to paper over the illegality of dipossession was the continuing understanding here of land ownership as pertaining to a particular kind of 'use' (ie., agriculture); rather than occupation, even intermittent occupation and use (as in nomadic use), which was actually accepted in british common law, as in hunting grounds. thus, William Blackstone's comments in 1765 prevailed, but with a crucial proviso:

"Property both in lands and in moveables being thus acquired by the first taker, which taking amounts to a declaration that he intends to appropritate the thing to his own use, it remains to him, by the principles of universal law, till such a time as he does some other act which shows his intention to abandon it"

'intention to abandon' was reinterpreted to read 'abandon'. as land use was reinterpreted to mean ongoing cultivation, even though this was clearly not the account of ownership given under british common law.

angela



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