… The issue is that this view is not only false, and contrary to centuries of western ideas about property, but also dangerous. There can be no absolute right over, or absolute ownership of property because human beings are not absolute. We are merely mortal and whatever we own we must, sooner or later, and whether by our own choice or Death’s, leave to someone else. This harsh but undeniable truth was reflected in the greater fluidity of the concept of property and ownership during the medieval and renaissance periods. Moreover, much of this more fluid and limited understanding of ownership and property is reflected in the most feudal aspect of contemporary common law legal systems, land, or real estate law. This article aims to explore what we can learn from this maligned period of history, and how we can rediscover fundamental truths about our contemporary legal systems, in order to improve our own and avoid a ‘neo-feudalism’ in the early decades of the twenty-first Century.
To achieve these aims, this article will be split into four parts. The first will discuss the concept of property, including the justification for private property, in medieval and renaissance scholastic thought. The second will analyze how this more nuanced view of property and ownership is reflected in the feudal underpinning of modern land law in common law legal systems. The third will discuss certain modern controversies about private property and analyze them in the light of the scholastic and feudal view of property law outlined in the preceding two sections. The fourth section will summarize the preceding sections and conclude with some thoughts about the future.
Lucas Clover Alcolea, The Problem of Property: Looking Back to the ‘Dark Ages’ to Get Through the Dark Ages, [2023] University of St Thomas Journal of Law and Public Policy 241.
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