COMMUNITY PROPERTY CLAIMS IN THE PERSONHOOD PERSPECTIVE: PART 1

Abstract

Under the property and personhood theory the projection by individuals of their personhood into the physical world gives rise to property claims over tangible objects and natural resources. However, the property and personhood theory is generally used as a justification for private property, and it is not clear whether a community personhood can be extended into the physical world, giving rise to communal claims over natural resources, such as land. The property and personhood theory distinguishes between two types of proprietary claim: fungible and personal. Fungible property refers to property that is held purely instrumentally, whereas personal property is property that is bound up with the holder, and should be protected against competing fungible claims. This two-part article argues that community claims to property can be justified by the property and personhood theory, and that the law should recognize these claims, although it fails to do so. The personal claim should establish a community’s entitlement to a natural resource and prevail over the fungible claim of a private landowner. However, current practice does not prioritise the community claim, because the claim is not universally understood. The dominant voice in property narrative is not that of a cohesive and mutual self-interest group, but rather the self-interested individual. Recent legislative amendments have purported to implement the policy of empowering local communities, in particular by increasing community participation in deciding on the use and allocation of resources. However, these policies have proved little more than a Trojan Horse that have perpetuated the favouring of the private property holder over a community claim.