ABSTRACT
It was commonplace in our undergraduate days for the first property lecture of the year to consider the question ‘what is property?’ One of us remembers the law school’s resident student Marxist proving, with the faultless logic of the dialectician, that property really was theft. Having invited the discussion, the lecturer could only nod sagely and say yes, I guess you are right, but of course none of this is examinable. So while alternative concepts of property have always made a nice jurisprudential add-on to the blackletter syllabus, they have often been safely quarantined. Yet do such alternatives matter? Well, yes; they matter not just in understanding the history of Australian settler society but also, as Wolfe points out, in understanding the structural basis of contemporary society. Further to this, the cases of Milirrpum v Nabalco30 and Mabo indicate that the issue of competing ideas of property is justiciable and goes to current entitlement.
