ABSTRACT
Dephysicalisation, the contemporary legal expression of the nature/culture paradigm, is not just a theory – it is a practice. The theory that property is an illusion is practised and materialised by the ownership, use and management of land. The theory, practice and pedagogy of property law, say that place is irrelevant. That irrelevance is tangibly evident. Land ownership is strongly related to land use. It is important therefore to consider the concept of dephysicalisation that defines modern property law in terms of both the ownership and the use of land. In the eighteenth to nineteenth centuries, as discussed earlier, to encourage industrial-scale agricultural and pastoral productivity, the British Crown used the mechanism of dephysicalised property to transfer land to private individuals and companies in her colonies through land grants, the facilitation of land markets and the encouragement or admission of landhunting/squatting. At the beginning of the twenty-first century, over 60% of the land in the United States is privately owned (Lubowski et al. 2006: 35) and over 63% of the land in Australia is privately leased or owned (Australian Bureau of Statistics 2000). The majority of privately owned land is used for agriculture and grazing. 60% of the Australian land mass is used for agriculture (Australian Bureau of Statistics 2000). Fifty-two percent of the US land mass is used for agriculture and 35% for grazing (Lubowski et al. 2006: 35). What this means is that well over half the
land mass of these two nations is held or owned by farmers. How these landowners (or landholders)1 relate to their land is irrelevant to property law. Precisely because property law excludes the physical world and its systems from its discourse, another area of law has become increasingly and rapidly important in regulating land use and ownership – environmental law. Environmental law starts where property ends, not as a different set of values about place, not even as a law about place, but as a quarantined section of law that addresses problems and disputes concerning the physical aspects of land ownership that property law does not accommodate. Where property law determines who owns the land, environmental law determines the ways in which that ownership can and cannot be manifest. Dephysicalisation is not therefore simply a theorist’s concept, it is a paradigm of people-place relations that lawyers practice, pedagogues repeat and landowners make real. Theorists claim property is an illusion, but the land and its many systems, are real.
