Culture

Let us start with culture, because culture goes to the heart of conceptions of property. Just as different national jurisdictions view 'property' and 'property law' very differently (reading the multiple judgments of the European Court of Human Rights gives immediate insight into this - see e.g. Auchmuty, 2009), so too do different cultural and ethnic groups and, within these, people of different genders or classes. The challenge for any jurisdiction which encompasses such diverse elements is to decide how far that difference should be respected and accommodated. In the past there was no problem: English law was sovereign both at home and throughout the British empire. But with the more recent recognition of the rights of dispossessed indigenous people, and the growth of multi-culturalism and respect for minority ethnic groups, efforts have been made to recognize or integrate alternative legal systems or even to accord jurisdictional power in certain areas of law.

Ideas about property are particularly culturally specific, so the intersection of two very different conceptual frameworks may lead to conflicts of law and policy. Catharine MacKinnon drew attention to the problems associated with this kind of cultural relativism in an essay about a Native American woman's attempt to have her children counted as members of her own pueblo for the purpose of inheriting tribal communal land. The relevant tribal law stipulated that the right extended to the children of a Santa Clara man who married a woman from outside the pueblo but not to the children of a Santa Clara woman who married a man from outside - a classic example of patrilineal descent. By ruling that this was a question of tribal sovereignty, the United States Supreme Court found itself permitting violations of its own gender equality principles. Yet the very fact that the Native law favoured men's property entitlements over women's, as MacKinnon observed, was due to colonial influence; it was not an original tribal principle. She wrote:

I raise this case because it poses tensions, even conflicts, between equality of the sexes, on the one hand, and the need to approach those questions within their particular cultural meanings, in an awareness of history and out of respect for cultural diversity and the need for cultural survival, on the other. (MacKinnon, 1987, p. 65)

Similar arguments are sometimes heard in the United Kingdom about the role of Sharia courts in resolving family disputes among British Muslims. Bringing these issues to students' attention disturbs any complacency about 'rights' as an unqualified good. It alerts them to issues of competition and hierarchy in rights and encourages them to reflect on their own values and politics around ethnicity and gender.

Culture can be introduced to Land Law students at the very start of the module. Though most courses and textbooks plunge straight into a description of the way English law defines land and property rights, some seek to locate this viewpoint in a comparative context. Pointing up the arcane peculiarities of the English system when set against other legal regimes is a useful way to fix them in students' minds, but it also establishes a critical, questioning tone. 'Each society develops its own cultural attitudes to its land,' wrote Kate Green in her pioneering short text (Green and Cursley, 2001, p. 6). That the English way of doing things is not the only one, nor necessarily the best, is not a bad message to give students at the outset.

If you or your colleagues have the expertise, comparisons can be made with a civil law jurisdiction such as Scotland or, if you have an Erasmus exchange arrangement, one of those countries; or a case study can be selected from the well-documented Native Title disputes of North America. Many western US states retain significant elements of Spanish and Mexican land law as well as Native-American practice. In New Mexico, for example, successive ruling groups

saw the land, and its applicable laws, in different ways ... Native- American Pueblos relentlessly organized the natural world round them to reflect fundamentally religious values. Hispanos placed their conception of land on the hard rock of human use and, as a result, tied property directly to life-giving rivers, largely disregarding the rest. (Hall, n.d., p. 48)

The Hispanic land-owning system was communal, an arrangement that sat uncomfortably with 'the peculiar American view of property as a marketable commodity' imposed when the 'Anglos' took power: 'This fundamental disagreement meant that the legal systems of all New Mexican sovereignties had great difficulty resolving land disputes.' (ibid.)

The case study most familiar to English land lawyers is that of the Australian Aborigines, whose claims to their native land came into conflict with those of the white colonizers deriving their authority from English law. Reading the case law, students can see for themselves just how different are the conceptions of the native Australians and the common law - incompatible in almost every respect. Milirrpum v Nabalco Ptd Ltd and the Commonwealth of Australia (1971) demonstrates the incomprehensibility of the indigenous view to the common lawyer, until a shift in cultural awareness produced recognition in Mabo v Queensland (No 2) (1992). But this was the beginning, not the end, of land law's problems in this area. Much of the disputed land had been 'owned' by white Australians for generations; they would not give it back to the Aborigines without a struggle, or at least substantial compensation. What if it was valuable mining land, as the Nabalco property was? Compensation would not be adequate. And what if the land was now populated by hundreds of separately owned homes in the middle of a city? A consideration of such conflicting rights will alert students to the significance of land's economic value in law. It will introduce them to another recurrent theme in property law, discussed later in this chapter: how law reconciles competing commercial and private interests.

In this case, what was a landmark decision in recognizing both the fact of colonial expropriation and the validity of a very different system of land rights ended in a compromise that demonstrates very clearly the role of property rights in perpetuating an existing power structure. Where the tribal lands claimed were not considered useful for any other purpose, the Australian government was happy to return them to the descendants of the relevant tribes. Where this was not the case, the Aborigines were compensated with other land. Since this land had little economic value, the government lost little in the gesture - and the Aborigines gained little, too. The decision not to compensate them with money rather than land was justified on the grounds that the Aboriginal relationship to land was not an economic but a spiritual one; indeed, this was identified as the key difference between their view and that of the common law. O'Donnell and Johnstone note:

Giving land to 'traditional' Aborigines so that they may preserve their spiritual links with it in no way unfairly advantages them economically because there is little or no economic or material advantage in it. To the extent that Aborigines step outside of the 'traditional' [i.e. by claiming economic compensation such as a white Australian would expect] they cease to be authentic and hence become less deserving of land rights . .. Seen in this light,

Mabo holds little promise: it is primarily about the legitimation of the existing system of landholding and title, and at the same time as it recognises Native Title it explicitly provides a formula for its extinguishment. (O'Donnell and Johnstone, 1997, p. 81)

The 'Native Title' cases, fascinating for their content alone, also provide students with valuable insights into the fact-finding process in legal disputes, something which, we hope they will come to appreciate, often determines the legal principles that are laid down and applied. In Milirrpum, the court purported to identify the salient features of the Aboriginal conception of property ownership; having set them against those of Australian law, the court drew the inevitable conclusion that the latter could not include the former. But how did it find out what the Aboriginal conception was? The case report reveals that claimants from the Aboriginal communities who did not speak English were cross-examined through an interpreter who did not speak all of their languages. Moreover, the questions asked, proceeding from the common law point of view, were often meaningless to the witness, while the questions that might have elicited a more accurate picture were not asked, because these dealt with legally irrelevant matters. Finally, by disqualifying hearsay evidence, the court ruled out much Aboriginal testimony about tribal beliefs and practices, for the Aboriginal culture is an oral one and knowledge is passed down from generation to generation not in writing but by word of mouth. How fair, then, was this trial?

Culture tends to disappear from our property law curricula after this cameo appearance at the start; even those of us who want students to be aware of alternative conceptions of property find it hard to sustain a comparative approach across an entire module. But there is no reason why you should not revisit the theme when you consider the selection of 'relevant' facts and the testimony of witnesses in the case law of subsequent topics such as undue influence or the family home (Auchmuty, 2001; 2002). Which facts are deemed relevant, and why? What is understood, and not understood, and why? Whose story is being told? What is missing? Although cultural details may be suppressed as irrelevant, thus removing them from the public record, and although judges are less inclined to comment on culture than on other factors such as gender or class, an important technique of the socio-legal approach is keeping your antennae tuned to spot references to, or assumptions about, cultural difference. Our students, when requested to do the same, may turn out to be even more culturally sensitive than we are because of their personal circumstances, and we can learn from them.

Culture can be the factor that determines the outcome of the case. In one of the eight appeals in Royal Bank of Scotland v Etridge (No 2) [2001], the claimant was a Hasidic Jew whose husband had persuaded her to agree to mortgage the family home as security not simply for certain property speculations, as she thought, but for all future borrowings. She claimed that she would never have agreed to an 'all-moneys' clause, but the House of Lords decided that a woman from her cultural background could not oppose her husband and would leave all financial decisions to him. This finding - which could have been taken to fulfil the twin tests of manifest disadvantage and reposing trust and confidence in her husband - was used by the court to deny her a remedy: such a woman, they held, would always have done what her husband wanted, so there could be no undue influence forcing her to act against her will. Thus are MacKinnon's warnings about cultural relativism borne out - and incidentally the intersection between the two themes of culture and gender brought home to students - and students given an opportunity to consider whether they would have decided this case differently (see my alternative judgment in Hunter et al., 2010).

Culture also underlies much of charity law. Through a study of its cases, students gain an insight into what society has deemed worthy of financial and legal privilege across the 400 years from the Statute of Elizabeth to the present. In the beginning, for instance, charities for the advancement of religion meant repairs to Anglican churches and little else (Mitchell, 2010, p. 262). Little by little our worldview changed: charitable status was accorded to other Christian faiths, to other monotheistic religions, to faiths with many gods and eventually to faiths with none (Sacred Hands Spiritual Centre's Application for Registration as a Charity [2006]). While religious organizations, like all applicants for charitable status, must prove public benefit, the law privileges religion on the ground that 'it is better for man to have a religion - a set of beliefs that takes him outside his own petty cares and leads him to think of others - rather than no religion at all' (Holmes v A-G 1981). But even that principle has been weakened by the provision in the Charities Act 2006 s. 2(2)(l) for recognition of charities for the advancement of moral or ethical belief systems.

This area of law is full of contradictions which are fun for students to unpick. Why, for example, was charitable status not accorded to the Carmelite nuns in Gilmour v Coats [1949]? As His Eminence Cardinal Griffin explained, 'the daily prayers and mortifications which the Carmelite Nuns . .. offer for their neighbour ... advance religion and are of inestimable benefit to their neighbour in bringing to those who are ignorant of them or have rejected them the gifts of God and the graces to obtain them' (at p. 431). That may be so, responded Lord Simonds: 'But it does not follow from this that the court must accept as proved whatever a church believes. The faithful must embrace the faith believing what they cannot prove: the court can only act on proof.' (at p. 446)

The principle is clear enough: religious bodies must demonstrate their benefit by, at the very least, conducting some of their activities in public. But this requirement itself, as O'Donnell and Johnston point out, imposes a 'Protestant ethic' of doing good in the community (O'Donnell and Johnstone, 1997, p. 28). Immediately, then, contemplative orders are barred. The rule is rooted in the history of charity law but sits awkwardly with a professed acceptance of all beliefs. Behind Gilmour v Coats lies a long saga of British suspicion of Roman Catholicism with its foreign rites and leadership, its celibate priests and sisterhoods that lured women away from their rightful destiny as wives and took their money (see, for instance, the famous undue influence case of Allcard v Skinner [1887]). That public policy retains its force in this area of law is apparent from the lengthy rejection by the Charity Commissioners of charitable status for the Church of Scientology in 1999.

The Charity Commission's policy statements are available online and provide a fruitful source of material for coursework tasks since they set out the basis and development of each area of law. Almost any area of charity law will serve - for example, the evolution of ideas about charities for animal welfare from the horses-and-hounds era to the 'higher feelings' justification for pet charities (but will 'public benefit' ever encompass benefit to the animals themselves?) or the evolving conception of 'political purposes'. Students can be asked to analyse the glib generalisations that besprinkle these documents - for example, this statement from the Analysis of the Law Underpinning the Advancement of Religion (2008, para. 2.11):

The law needs to be interpreted in the light of ... the changed religious, social and cultural landscape of England and Wales ... particularly the habits of society, contemporary ideas and conditions and current ideas of social service.

This very general and uncontroversial assertion, of a type commonly seen in legal essays, calls for a careful unpicking of just what changes have occurred in the religious, social and cultural landscape and what contemporary habits, conditions and ideas of social service - especially in the current political climate - might be. And this lends itself to empirical research, delving into social history and trawling through newspaper libraries.

 
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