Léon Duguit and the Social Obligation Norm of Property, 2019
The dominant modern conception of private property has been and is liberal. Liberalism concerns i... more The dominant modern conception of private property has been and is liberal. Liberalism concerns itself with promoting and protecting freedom of choice for the individual—natural or legal—and groups of them. Private property is liberalism’s vehicle for achieving that objective—conferring choice—in the allocation and control of goods and resources—natural or manufactured, tangible or intangible—among individuals. Yet the last 35 years, and longer, depending on how one understands the scholarship, stand witness to an explosion of property theory literature, much of it focusing upon what has come to be known as property as social relations or the progressive property movement. This ‘social shift’ recognises the importance of community interests in understanding both the concept of property and its invocation in real world legal systems. To a great extent, then, and depending upon how one looks at it, the property as social relations or progressive property view seems either an entirely ...
Were the decisions in Washington v. Trump political? Of course they were! While some may not care... more Were the decisions in Washington v. Trump political? Of course they were! While some may not care to admit it, President Trump correctly identifies—albeit for the wrong reasons—the political nature of the decisions. Rather than rendering them illegitimate, as the President suggested, the political nature of the District Court and Ninth Circuit Court of Appeals decisions is the very essence of their legitimacy and validity. This Essay explains why.
Adelaide Law School Legal Studies Research Paper Series, 2021
In this short article, we examine how the University of Adelaide’s Law School responded in its ap... more In this short article, we examine how the University of Adelaide’s Law School responded in its approach to teaching during the challenges of COVID-19, the opportunities revealed, and the immediate and longer-term implications of such responses.
Adelaide Law School Legal Studies Research Paper Series, 2018
Earlier this year I visited Dharavi in Mumbai, Asia’s largest urban slum1. Pervasive economic and... more Earlier this year I visited Dharavi in Mumbai, Asia’s largest urban slum1. Pervasive economic and social disadvantage are endemic to any slum, a fact which leads inexorably to wider societal instability, representing a serious political challenge to those states in which they emerge. The underlying causes of slums can be traced to neoliberal capitalism — ‘a mixture of free-market economic thought, the elevation of self-interest as the guiding force of progress, minimal state intervention and, increasingly, invasive forms of biopolitical control’ — and the politico-legal-economic structures of which it is both a part and which underpin it and, in turn, shape the world in which we live. As Mike Davis writes in his seminal exploration of the urban slum, states ignore these communities at their peril, for as social, economic, and political tensions increase, the only response of the residents of such communities may be revolt: ‘the future of human solidarity depends upon the militant re...
What is property? It is neither what it may first appear nor what we are first told it might be. ... more What is property? It is neither what it may first appear nor what we are first told it might be. Let me explain. What property first appears to be is a means of allocating goods and resources. Typically, philosophers and other social and legal theorists begin by saying that property is a system whereby scarce resources — usually everything that people can either see or imagine — are allocated amongst individuals (individuals can be natural — you and me; and legal — corporations). It is often difficult to work out how a system of property achieves the initial allocation of a particular good or resource. For that reason, those who acquire a good or resource on that initial allocation are sometimes said to have won the lottery of enjoying the resource. Joseph William Singer calls this initial allocation of a resource a “magic moment” (Singer 172; drawing on Nozick 151-64), aptly capturing the mystical and mystifying way in which the law allows some to end up as “haves” while others, us...
Political Economy - Development: Health eJournal, 2020
This article contains four parts. Part I sets out how FoRB concerns raised by opponents of the re... more This article contains four parts. Part I sets out how FoRB concerns raised by opponents of the restrictions that have been raised in a variety of locations would be dealt with under the Australian Constitution. We begin with this Australian analysis first because it serves as a proxy for a jurisdiction which has no constitutional protection of fundamental rights and freedoms, such as FoRB. This analysis suggests that these excesses might go without remedy when rights are not protected. The American analysis demonstrates what happens when rights are protected. Part II turns to an analysis of the same restrictions pursuant to the American First Amendment right to free exercise of religion. This part, too, serves as a proxy for how these restrictions can be dealt with in a jurisdiction which provides for comprehensive constitutional protection of fundamental rights and freedoms. Our objective is to demonstrate that when rights are protected, the correct approach to dealing with the res...
Using a theoretical perspective drawing upon established scholarship, this article develops a fra... more Using a theoretical perspective drawing upon established scholarship, this article develops a framework for comparing the blend of private, state/public, and common property in divergent jurisdictions. The article tests the framework it develops through an analysis of the real property law of China, the United States, and Australia. China is selected not only for its relevance on the world stage and in order to provide an understanding of that legal system for a broader audience, but also because it demonstrates the role of private property in a civilian system of law, one otherwise thought to be communist-socialist. The United States and Australia both serve as common law examples of systems in which it might be thought that private property predominates, but in which state and public property mix in significantly different ways. The article concludes that whatever one might think about the political-economic makeup of their broader societal contexts, the legal systems of China, th...
Review(s) of: Freedom of conscience and religion, by Richard Moonirwin Law, 2014240 pp, ISBN 978 ... more Review(s) of: Freedom of conscience and religion, by Richard Moonirwin Law, 2014240 pp, ISBN 978 1 55221 364 3.
Law is about relationship—what law attempts is the mediation of relationships among citizens. It ... more Law is about relationship—what law attempts is the mediation of relationships among citizens. It is not always perfect, as baseball, and as life itself, so is law messy. And nowhere is that messiness of life and relationship more apparent, and more important, than in the case of property, where an owner holds rights that exist because of and which affect others. Just as baseball, property, too, is relationship.
This article examines the constitutional allocation of power over primary and secondary education... more This article examines the constitutional allocation of power over primary and secondary education in Australia, and the place of and protection for freedom of religion or belief (FoRB) in Australian government and religious non-government schools. This article provides both an overview of the judicial treatment of the constitutional, legislative, and common law protection for FoRB and a consideration of emerging issues in religious freedom in both government and religious non-government schools, suggesting that the courts may soon be required to provide guidance as to how the available protections operate in both settings.
This article examines a recent decision of the South Australian Supreme Court, Westpac Banking Co... more This article examines a recent decision of the South Australian Supreme Court, Westpac Banking Corporation v Chamberlain, which addressed the issue of the potential for a native title to raise an arguable defence to a mortgagee’s application for an order for possession in a case of default.
This chapter examines why the relationship between law, religion, and theology matters. It contai... more This chapter examines why the relationship between law, religion, and theology matters. It contains four sections. The first explores why, in addition to sociology, we ought to be concerned to study the relationship between law and religion. If it is important, the second section suggests how we can go about studying this relationship. For that, we must make a distinction between ‘religion’ and ‘theology’. From that distinction, the third section suggests two methodological approaches for use in such study. And, finally, the chapter concludes with some brief reflections on the relationship between religion, theology, and law.
As we approach Justice Lionel Murphy’s 100th birthday on 30 August 2022, this article explores an... more As we approach Justice Lionel Murphy’s 100th birthday on 30 August 2022, this article explores and renews a significant aspect in the jurisprudence of this truly radical judge: the social relations or progressive view of property. Justice Murphy both identified and judicially expounded this view well before the American social relations or progressive schools. And rather than merely identifying it as some intellectual museum piece, the article also builds on it. The article contains five parts. Part I contextualises the jurisprudential debates surrounding property. Part II recounts Justice Murphy’s judicial radicalism. Part III explores the elements of Murphy’s progressive-relational view of property. Part IV applies the elements of Murphy’s progressive-relational property to the High Court’s recent native title decision in Northern Territory v Griffiths (Ngaliwurru and Nungali Peoples). Part V offers some concluding reflections on the bright future for property found in Murphy’s co...
Léon Duguit and the Social Obligation Norm of Property, 2019
The dominant modern conception of private property has been and is liberal. Liberalism concerns i... more The dominant modern conception of private property has been and is liberal. Liberalism concerns itself with promoting and protecting freedom of choice for the individual—natural or legal—and groups of them. Private property is liberalism’s vehicle for achieving that objective—conferring choice—in the allocation and control of goods and resources—natural or manufactured, tangible or intangible—among individuals. Yet the last 35 years, and longer, depending on how one understands the scholarship, stand witness to an explosion of property theory literature, much of it focusing upon what has come to be known as property as social relations or the progressive property movement. This ‘social shift’ recognises the importance of community interests in understanding both the concept of property and its invocation in real world legal systems. To a great extent, then, and depending upon how one looks at it, the property as social relations or progressive property view seems either an entirely ...
Were the decisions in Washington v. Trump political? Of course they were! While some may not care... more Were the decisions in Washington v. Trump political? Of course they were! While some may not care to admit it, President Trump correctly identifies—albeit for the wrong reasons—the political nature of the decisions. Rather than rendering them illegitimate, as the President suggested, the political nature of the District Court and Ninth Circuit Court of Appeals decisions is the very essence of their legitimacy and validity. This Essay explains why.
Adelaide Law School Legal Studies Research Paper Series, 2021
In this short article, we examine how the University of Adelaide’s Law School responded in its ap... more In this short article, we examine how the University of Adelaide’s Law School responded in its approach to teaching during the challenges of COVID-19, the opportunities revealed, and the immediate and longer-term implications of such responses.
Adelaide Law School Legal Studies Research Paper Series, 2018
Earlier this year I visited Dharavi in Mumbai, Asia’s largest urban slum1. Pervasive economic and... more Earlier this year I visited Dharavi in Mumbai, Asia’s largest urban slum1. Pervasive economic and social disadvantage are endemic to any slum, a fact which leads inexorably to wider societal instability, representing a serious political challenge to those states in which they emerge. The underlying causes of slums can be traced to neoliberal capitalism — ‘a mixture of free-market economic thought, the elevation of self-interest as the guiding force of progress, minimal state intervention and, increasingly, invasive forms of biopolitical control’ — and the politico-legal-economic structures of which it is both a part and which underpin it and, in turn, shape the world in which we live. As Mike Davis writes in his seminal exploration of the urban slum, states ignore these communities at their peril, for as social, economic, and political tensions increase, the only response of the residents of such communities may be revolt: ‘the future of human solidarity depends upon the militant re...
What is property? It is neither what it may first appear nor what we are first told it might be. ... more What is property? It is neither what it may first appear nor what we are first told it might be. Let me explain. What property first appears to be is a means of allocating goods and resources. Typically, philosophers and other social and legal theorists begin by saying that property is a system whereby scarce resources — usually everything that people can either see or imagine — are allocated amongst individuals (individuals can be natural — you and me; and legal — corporations). It is often difficult to work out how a system of property achieves the initial allocation of a particular good or resource. For that reason, those who acquire a good or resource on that initial allocation are sometimes said to have won the lottery of enjoying the resource. Joseph William Singer calls this initial allocation of a resource a “magic moment” (Singer 172; drawing on Nozick 151-64), aptly capturing the mystical and mystifying way in which the law allows some to end up as “haves” while others, us...
Political Economy - Development: Health eJournal, 2020
This article contains four parts. Part I sets out how FoRB concerns raised by opponents of the re... more This article contains four parts. Part I sets out how FoRB concerns raised by opponents of the restrictions that have been raised in a variety of locations would be dealt with under the Australian Constitution. We begin with this Australian analysis first because it serves as a proxy for a jurisdiction which has no constitutional protection of fundamental rights and freedoms, such as FoRB. This analysis suggests that these excesses might go without remedy when rights are not protected. The American analysis demonstrates what happens when rights are protected. Part II turns to an analysis of the same restrictions pursuant to the American First Amendment right to free exercise of religion. This part, too, serves as a proxy for how these restrictions can be dealt with in a jurisdiction which provides for comprehensive constitutional protection of fundamental rights and freedoms. Our objective is to demonstrate that when rights are protected, the correct approach to dealing with the res...
Using a theoretical perspective drawing upon established scholarship, this article develops a fra... more Using a theoretical perspective drawing upon established scholarship, this article develops a framework for comparing the blend of private, state/public, and common property in divergent jurisdictions. The article tests the framework it develops through an analysis of the real property law of China, the United States, and Australia. China is selected not only for its relevance on the world stage and in order to provide an understanding of that legal system for a broader audience, but also because it demonstrates the role of private property in a civilian system of law, one otherwise thought to be communist-socialist. The United States and Australia both serve as common law examples of systems in which it might be thought that private property predominates, but in which state and public property mix in significantly different ways. The article concludes that whatever one might think about the political-economic makeup of their broader societal contexts, the legal systems of China, th...
Review(s) of: Freedom of conscience and religion, by Richard Moonirwin Law, 2014240 pp, ISBN 978 ... more Review(s) of: Freedom of conscience and religion, by Richard Moonirwin Law, 2014240 pp, ISBN 978 1 55221 364 3.
Law is about relationship—what law attempts is the mediation of relationships among citizens. It ... more Law is about relationship—what law attempts is the mediation of relationships among citizens. It is not always perfect, as baseball, and as life itself, so is law messy. And nowhere is that messiness of life and relationship more apparent, and more important, than in the case of property, where an owner holds rights that exist because of and which affect others. Just as baseball, property, too, is relationship.
This article examines the constitutional allocation of power over primary and secondary education... more This article examines the constitutional allocation of power over primary and secondary education in Australia, and the place of and protection for freedom of religion or belief (FoRB) in Australian government and religious non-government schools. This article provides both an overview of the judicial treatment of the constitutional, legislative, and common law protection for FoRB and a consideration of emerging issues in religious freedom in both government and religious non-government schools, suggesting that the courts may soon be required to provide guidance as to how the available protections operate in both settings.
This article examines a recent decision of the South Australian Supreme Court, Westpac Banking Co... more This article examines a recent decision of the South Australian Supreme Court, Westpac Banking Corporation v Chamberlain, which addressed the issue of the potential for a native title to raise an arguable defence to a mortgagee’s application for an order for possession in a case of default.
This chapter examines why the relationship between law, religion, and theology matters. It contai... more This chapter examines why the relationship between law, religion, and theology matters. It contains four sections. The first explores why, in addition to sociology, we ought to be concerned to study the relationship between law and religion. If it is important, the second section suggests how we can go about studying this relationship. For that, we must make a distinction between ‘religion’ and ‘theology’. From that distinction, the third section suggests two methodological approaches for use in such study. And, finally, the chapter concludes with some brief reflections on the relationship between religion, theology, and law.
As we approach Justice Lionel Murphy’s 100th birthday on 30 August 2022, this article explores an... more As we approach Justice Lionel Murphy’s 100th birthday on 30 August 2022, this article explores and renews a significant aspect in the jurisprudence of this truly radical judge: the social relations or progressive view of property. Justice Murphy both identified and judicially expounded this view well before the American social relations or progressive schools. And rather than merely identifying it as some intellectual museum piece, the article also builds on it. The article contains five parts. Part I contextualises the jurisprudential debates surrounding property. Part II recounts Justice Murphy’s judicial radicalism. Part III explores the elements of Murphy’s progressive-relational view of property. Part IV applies the elements of Murphy’s progressive-relational property to the High Court’s recent native title decision in Northern Territory v Griffiths (Ngaliwurru and Nungali Peoples). Part V offers some concluding reflections on the bright future for property found in Murphy’s co...
Uploads
Papers by Paul Babie