Themes and topics

It is obvious that certain topics in property law lend themselves better to socio-legal perspectives than others. In equity and trusts, charities are an obvious candidate; in land law, mortgages; straddling the boundaries of the two, we have trusts of the family home. The drawback of the topical approach is, however, its patchiness: now you see a socio-legal perspective; now you don't. My preference would be for a thematic approach. Here you can structure your modules in your usual way but you will establish, at the outset, a set of themes you want your students to pick up and develop as you progress through the topics. Your assessment will be devised around one or more of these themes. In this way, socio-legal concerns are seen to be pervasive, and property law assumes a coherence that binds together what might otherwise appear to be a collection of disparate subjects.

An example

'The law of land comprises a crystallised expression of values . .. cast in sharp relief against the landscape of the law.' (Gray and Gray, Elements of Land Law, p. 4). With reference to one or more areas of land law, and referring to cases and statutes where appropriate, identify the key values or aims promoted by English land law and evaluate the balance struck between them.

We have tried this in a small way at my own institution. We were keen for students to acquire, as well as an in-depth knowledge of selected topics, a sense of land law as a whole, its history, structure, common themes and the policy concerns driving its development. So we introduce these themes and policy concerns at the start of the module, to be returned to, where relevant, as we proceed through each individual topic; and they are drawn together in the final class. Students' understandings are assessed in a compulsory essay question in the final exam, the title of which they have been given early in the module, and material for which they have (we hope) amassed throughout the year. The first time we tried this, we were delighted with the results; almost all the student cohort really did seem to have a notion of land law as a body of law that did, in fact, proceed according to some loose but identifiable principles and policies.

The pre-seen question we ask is inevitably couched in very broad and general terms because it is intended to encompass the whole of what we teach. But it would also be possible to go into more depth on one particular theme in a piece of coursework or essay question in the exam, and here some sociolegal investigation that might be too detailed for the general syllabus will be appropriate. It is not unusual, for instance, for teachers of Land Law or Equity and Trusts to set an essay question or coursework in the area of implied trusts of the family home, focusing perhaps on whether unmarried cohabitants would be better served by a statutory regime of the family-law type (such as that recommended by the Law Commission in 2007), or simply whether the implied trust rules are satisfactory. These questions stray into socio-legal territory but are often answered by students on the basis of minimal socio-legal knowledge, which is hardly surprising when you consider how little attention is given in property law textbooks to empirical research. Many students end up making their critical judgment on the basis of personal opinion rather than any evidenced arguments. Those who read the Law Commission Report and the case law before Stack v Dowden will recognize that the proposed statutory regime is intended to protect vulnerable women. But the claimant in Stack v Dowden was a man: did this make a difference? Immediately the way that law deals with gender reveals itself as a significant theme that could be placed under the microscope in this context. So too could the theme of the way the law negotiates conflicts between commercial bodies and private individuals or groups - including how property law purports to strike a balance between the protection of land as investment and land as home, the extent to which it is prepared to recognize property-based human rights, or equity's role in the regulation of commerce (dealt with more fully when you cover the commercial uses of constructive trusts). A slightly different pervasive theme is that of culture, which runs through the case law in a way that is largely invisible because it involves asking questions rarely asked by doctrinal lawyers. Who are these litigants? What are their understandings of their property rights? How do these affect their experience of the law? These themes will be further discussed below, but I make no claim for their being the only or the best themes to pursue; they are simply the ones that seem most obvious and accessible to me.

 
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