Landscapes Podcast Episode 10: The where of law

Nicholas Blomley and Frankie McCarthy untangle the lawspace

Aug 03, 2023

Episode Description

Reforming property for sustainability requires both innovation in the law as well as in how we relate to land. Legal geography is a conceptual project that describes how law and space interact. Frankie McCarthy (lawyer) and Nicholas Blomley (geographer) discuss property through the legal geography lens.

Episode Links

Landscapes is produced by Adam Calo. A complete written transcript of the episode can be found on Adam’s newsletter: Land Food Nexus. Send feedback or questions to adamcalo@substack.com. Music by Blue Dot Sessions: “Kilkerrin” by Blue Dot Sessions (www.sessions.blue).

Transcript

*The transcript has been lightly edited for reading comprehension

Adam Calo (Introduction): [00:01:01] When I was a graduate student, I was interviewing smallholder farmers near Salinas California asking them about what was stopping them from using more ecologically sensitive agricultural practices. One of the farmers stopped me and said,

“The problem isn’t how to farm, it’s that I can’t find any land to farm.”

This one comment changed the course of my research career. First of all, obviously the farmer was correct. If a farmer doesn’t have secure land tenure, what’s the point of them slowly building that place-based ecological knowledge that I was so interested in. Farming on a month-to-month lease meant farming to make rent, not to produce food. It makes you wonder who is going to plant a tree, if they are evicted before they have a chance of seeing it mature.

But second, I began to see how concerns over sustainable food were really undergirded by issues of land access and control. Of property, propriety and the mythical power of ownership. And, I wasn’t a lawyer. I had studied the wrong the discipline. It became so clear to me that opening the space for that farmer in Salinas to practice sustainable growing practices would require changes to tenant protections, limits to land financialization, fiercer restrictions on the power of landlords, expansion of public agricultural lands, redistribution in exchange for food production. All of this requires legal activism, or at least legal innovation.

We need the law for transformation. But appeals to the law such as the one I was just calling for, makes a crucial mistake. Seeing the law as something that is fixed or natural, separate from the realm of the social, reifies its power. The law isn’t manna from heaven, it is a clever social construction that provides consistency and security for social and environmental interaction, made to freeze in place a set of rules and ways of living that people work out through customs formed living on land.

The law strongly shapes how landscapes look, work and feel, but it is also true that landscapes create the law. And therefore appealing to pure legal innovation to create new emancipatory landscapes is not enough and even perpetuates a blind spot of the law’s propensity to maintain the status quo.

At least this is the core insight of the niche field of “Legal geography” a quasi-discipline or conceptual project that tries to understand the unique relationship between space and law.

From my vantage point, Legal geography gives us tools to see how the law actually works, which of course teases a recipe for how to change it, beyond the limits of doctrinal pencil pushing.

Reforming property for sustainability demands such an approach.

One of the tenets of legal geography is that lawyers with a humility toward their craft and geographers with respect for the law’s centrality ought to work together to do transformative work.

So for this episode you’ll hear Frankie McCarthy, a professor of private law at Glasgow University interview Nick Blomley, professor of geography at Simon Fraser University.

Nick Blomley has been central in the development of legal geography and you’ll hear Franke tease out some of its core concepts while working through this issue of the way dominant notions of property get made and hopefully, unmade.

Here is Frankie McCarthy and Nick Blomley.

Interview

[00:04:09] Frankie McCarthy: Well thanks Nick. Welcome to the podcast.

[00:04:12] Nick Blomley: Thanks, Frankie. It's lovely to be here

[00:04:13] Frankie McCarthy: My research is in property law. That's my background. I'm interested in property law, especially land law in in Scotland, and it always fascinates me to learn how property concepts are dealt with in other perspectives from other disciplines, which is how I came to read your work in the first place. So I was interested in this article you published in 2005 where you asked readers just right there in the title of the article to “remember property.” Now that may be suggests that we've forgotten property, right?

That's the implication in the title. Why is it that you thought it was important for us to remember property and what, what is the danger of forgetting it?

[00:04:53] Nick Blomley: The article was an editorial written for a geography journal. Property school scholars have not forgotten property.

It was written broadly for a social science or human geography audience, the sort of audience that, I sometimes speak to. And I wanted to speak to them, to ask them to remember property. And in so doing what I was trying to do was to ask them to remember a couple of things, most importantly to remember or to reengage with property in its richest sense.

My sense is that, non-lawyers tend to have a very narrow understanding of property. Sometimes I'm afraid some lawyers have a rather narrow understanding of property. I like to think of property as a state sanctioned set of enforceable relations between humans and non-humans that governs rights to use and benefit of vital social resources. Resources that are fundamental for life.

In its richest sense property makes certain worlds possible and others less possible, possible. Property is not something that's given, but is conditional. It's historical, it's deeply political. And so I was trying to kind of put property back on the scholarly agenda in that sense. But, and so doing what I was trying to do in that piece was to remind, scholars that we used to actually have a much more kind of lively conversation—an ethical conversation, a political conversation about what property is, what property could be. If you go back a hundred years or 200 years, at least in the Western cannon, scholars like John Locke or, Proudhon the French anarchist or Marx were fighting about what property is.

What property could be. So Locke, of course, has a very powerful story about, the privatization of property. Property is understood to be really about private property. That's good. That's the way things should be. And then Marx comes along and says, no, the story of property is a story of, violence, of blood and fire as he puts it.

We need to recognize the social dimensions of property. Then we have other scholars who take property in a different way. But, the temptation now, at least in, as I felt it back in 2005, was that we've forgotten that politics. We've forgotten the importance of property and the way property shapes our world. But property really hasn't forgotten us.

It shapes our world in fundamental and important senses.

[00:07:26] Frankie McCarthy: You touched there on this idea that we used to argue about what property is. It wasn't just accepted that there was one version of property and that was all there ever could be. So in that same 2005 piece you wrote about that, So you said that

“Property used to be a commodious category that included related ideas of propriety. It acknowledged a complex array of the estates and interest and enrolled a rich dramatist persona ranging from Locke's yeoman farmer to Proudhon’s murderous landlord.”

I love that idea of the richness that we used to have when we talked about property, and maybe that's been lost.

But what would you say now is the dominant model of property? How has that come to replace this more contested understanding that we used to have?

[00:08:12] Nick Blomley: Before I get into that, I just want to maybe qualify, the “we” in that, the 2005 article … the implied audience that I think was in that article, which I think sometimes we as scholars fail to fully, or I certainly failed to fully acknowledge. And I was referring in that we to broadly the Western cannon, and I would want to qualify that by saying that, in many other parts of the world, of course we haven't forgotten property. And in many other contexts we have, or others have, not forgotten property. If one thinks, for example, about indigenous land struggles, there's long been a profound and very important understanding of exactly what property is and what property should be.

So I just wanted to qualify that, because I think that's important. And when we think about, and this is I think a broader point that I think is important, in thinking about what property is or what property could be, or how certain models of property have become entrenched, we need to be …

I need to be cautious in recognizing diversity of property on the ground. That property can take many forms, both actually in formal practice if we think about legal doctrine, but also in terms of political conversations and struggles and struggles in the global south, for example.

That's just a by way of a bit of a proviso. But that said, I think it is important to recognize that yes, we used to think of property. We in the sense of, people in this sort of, at the anglosphere, people in say the common law world, if that's our focus for now. And so you can certainly find people, including Locke, talking about property actually in a very commodious and broad sense.

It's not just about rights to land, but also the interest that people might have in other forms of property and notions of propriety, which take us beyond the idea of simply property and land, but include social obligations, broadly speaking, associated with rights to land.

But, I think that said, it is quite clear that a much narrower understanding of property, dominates. A much smaller, if you will, understanding of property dominates and, put simply, that centers private property. Property is not just private property. Property can take many forms including state property, common property, but private property has become the default in thinking about property more generally.

And private property then becomes understood in, again, a much narrower sense. Some have described this as the ownership model or the Blackstonian model, which actually misreads what Blackstone actually said about property. But that's, that's an aside.

[00:10:46] Frankie McCarthy: I think that's always the great joke is that even Blackstone didn't ascribe to the Blackstonian model of property.

[00:10:52] Nick Blomley: That's right. Well, that gets us to the questions of what property actually is, which we can maybe talk about later. Which is an interesting point, but, broadly, we're talking about something I suspect that most listeners will be familiar with the, the idea that property is private property.

That private property is basically a simple relationship between a single owner and his land. And it tends to be gendered. It tends to be implicitly racialized that we're talking about. White people as owners, forms of white privilege in relation to that relationship. And then if you have a relationship to your land that that's private, then basically you have the trump card when it comes to defining how that land should be used.

And that's not just an analytical characterization, it's also a normative, prescriptive characterization. That's the way things should be. And then that smuggles in all sorts of understandings about how private property creates appropriate incentives, which, facilitate forms of, beneficial improvement and use to the land and so forth.

[00:11:52] Frankie McCarthy: I think when you talk there about the fact that this dominant idea of property now is inherently gendered, it's inherently racialized, it sort of answers the question itself of how that model of property came to be the dominant model, because these systems of power use whatever mechanisms they can to entrench their power. And this situation, property or this concept of property, and particularly the legal dimension of property, is one of the tools that systems of power have used and continue to use to make sure that they stay in that powerful position.

[00:12:26] Nick Blomley: You're absolutely right. Well, of course it not only aligns with those dominant social relations, it also makes those dominant social relations possible. So, you can't understand contemporary capitalism or contemporary colonialism, for example, without recognizing the fundamental

architecture that is private property and the ownership model more generally. But that said, I think we need to, and this is maybe goes back to Marx and others. We can't just assume that there's an inevitability to the way at which that model came to be. It's a long and ongoing and continuing series of social struggles and forms of resistance but also mobilization.

So the story of land enclosure, for example, which is easy to read retrospectively, isn’t something just pre-given and inevitable. That's the way Locke reads it, even though of course he was writing at exactly the moment at which that enclosure was happening.

But retrospectively, it's very easy to construct it as a sort of story of inevitability, which is the kind of law and economics model would read it. This is obviously the way things should be because it's the most effective way of organizing incentives as compared to the so-called tragedy of the commons, which constantly needs to be challenged.

But if you actually look at that history more carefully you'll see the way in which it was highly contingent and not pre-given in any way, but open to contestation and struggle.

[00:13:45] Frankie McCarthy: Right, so that within the legal scholarship then, that idea that you need to challenge the idea of property or allow it not to become a neutral objective background facts has become, quite important again. I guess over the past 15 or 20 years, the critical legal scholarship has started to focus on this idea of problematizing property and not allowing it to be presented as this kind of objective, fact of life or a state of nature, whatever you want to call it. And I know that we've both been interested in our work in that critical legal scholarship, coming through the Progressive Property School of thought.

That's primarily a US based way of thinking about property and property relations. So maybe we could talk a little bit about that? So the dominant model focuses on this idea that property gives you rights to do certain things with your land and gives you certain rights to behave in certain ways towards other people in respect of your property. But the Progressive Property School focuses on the idea that if you own something that gives you a responsibility to others, to the broader community, to use that property in a way which allows for collective flourishing or different values that could under underpin it.

So that's sort of what I take from the Progressive Property School, is that we need to focus on responsibilities as well as rights. Does that accord with your understanding of that school of thought?

[00:15:11] Nick Blomley: Yeah. To some extent. I mean, it really does develop within the US Academy. And the US Legal Academy is, as I understand it, heavily dominated by a sort of law and economics notion of property.

So we should be clear that the progressive property movement, as it were, is really quite small as compared to the dominance of the sort of hegemony of that dominant reading of property, which centers private property and presumed benefits that flow from creating well-structured forms of private property incentives. What I understand the progressive property scholarship is doing is, is trying to work within the legal academy.

It's basically legal scholars and property theorists trying to unpick the ways in which legal doctrine, particularly in the US as well as to some extent the sort of history of property in the US are in fact, more commodious –to use that word we used before—than the law and economics model might suggest. That there are loose ends that there are alternatives to, sort of very narrow Blackstonian kinds of conception of private property, that you can find judges on occasion saying that, well, maybe the owner doesn't actually have absolute rights to exclude.

There are certain cases, the State v. Shack, case for example, is often cited in which, lawyers tried to access agricultural land in order to reach very marginalized farm workers. In that case, the judge actually pushed back against the notion of, the sort of bundle of rights exclusive power kind of notion of the property owner to say that in certain cases, yes, we can see that there's a valid reason why the exclusive private property rights, the castle of the private property owner needs to be opened up, to achieve certain social ends. So, it's about responsibilities. It's also about the kind of social ends of property more generally and trying to argue for the alternative possibilities that are actually extant within existing property law.

So it's not so much an argument as to how property should be, it's an argument as to how property actually is.

[00:17:21] Frankie McCarthy: Yeah. And that's really important I think, to recognize that all those values and challenges actually already exist in the legal regimes that we have at the moment. They're just not always articulated very clearly, if at all. And that's the progressive property movement, is shining a light on, I think, or offering a way to shine a light on these things,

[00:17:40] Nick Blomley: Yeah. And I've, certainly found it useful for me. I'm not trained as a property lawyer, so, having skilled property lawyers show me the diversity that actually exists within property, I think is powerful and important and allows us to kind of push back against or contest a narrow reading of property.

So I've been influenced by it. I also have issued a bit of a friendly critique, as it were, of that scholarship trying to understand the way in which it constructs its argument. And broadly speaking, progressive property relies on a sort of critique as to the reality of property.

So this goes like law and economics says property is this ,progressive property says the reality of property is something different. It's not A, it's something like B. My friendly critique is to say, well, this still assumes that there is a reality to property, that we can actually say that property actually is something that it has a sort of objective reality.

Progressive property scholarship is basically saying you've misread what property actually is. Property looks different to what you think it is, and it's ethical commitments are different in reality to what you think the dominant reading actually understands it to be.

My critique, I wrote this a few years back in an article, was to worry a little bit about this reality to property. By arguing that reality, the reality of property at least is, is not something that's given, not something that's out there in the world, but rather something that's actually brought into being through various performances.

Property in that sense doesn't pre-exist its performances, but gets performed through multiple practices.

[00:19:14] Frankie McCarthy: What is an example of the way that property is performed rather than created through legal rules?

[00:19:19] Nick Blomley: Well, you can see it in all sorts of context, but you can certainly see it when you think about, say, the dominance of the ownership model. So one of the arguments I use in that piece relates to the work of the Peruvian economist, Hernando De Soto. And De Soto has made a living by arguing the poor of the south, the global south in informal settlements, need to have their property titled and formalized such that then they can enter into the world of capitalism.

They can mobilize those resources and do all the sorts of things that everyone else in the global North is able to do when they have secure title to private property.

So he's made a fortune by going around countries and selling things to the World Bank and so on.

[00:20:02] Frankie McCarthy: Very friendly argument for low and economics

type property people.

[00:20:07] Nick Blomley: Exactly. Yeah. They love it. They love it. And they love it for, yes, for obvious ideological reasons. And it's been taken up all over the world. It is however, massively flawed. I mean, if you actually talk to scholars of informal settlements. They say, well, you very often you don't actually need to have formal title in order to mobilize those resources.

There's alternative economic systems that exist in informal settlements, that allow people, for example, to borrow on the basis of the informal assets that they have. They can transfer interests in informal land or informal buildings, rather, to others.

You don't actually need formal title, and actually, if you have formal title, things actually can go kind of wonky. You can have forms of gentrification. You can have forms of land speculation, things that actually make that inaccessible to the people that really need it. The poor, the precarious, and the marginalized.

That doesn't really matter because the way in which this story of De Soto, produces, aligns with dominant understandings of property effectively makes it true. So it's true insofar as the IMF or the World Bank is concerned, because it's sustained by and helps sustain a whole set of other understandings of property and economics and capitalism and so on.

So that's an example of that the way in which a certain understanding of property becomes true, as it were, through its performances, rather than by virtue of the way in which it conforms to, quote, empirical reality.

[00:21:41] Frankie McCarthy: I think this is a good place to start talking a bit more about this concept of legal geography. So you've been one of the people that's been centrally involved in developing this idea of legal geography, which is a useful place to go once you've accepted as a lawyer, you know, once you've accepted the reality that just looking at legal rules is not going to be enough to tell you what's really going on with property and property relations in the world. You need to start looking more widely at the way that property's being performed,

My understanding is that legal geography is interested not just in the legal rules, but also about the places where these activities are being performed. So this idea of the lawscape or the where of law. In a legal geographic approach, how would that understand property or property relations in comparison with the purely legal approach that we were just discussing?

[00:22:32] Nick Blomley: Oh, well, it depends on what we mean by the purely legal, but that's another question. I would argue that the legal is actually happening in the where and the now. It's not just, you know, in the minds of the judge or on the pages of the judgment. Exactly what legal geography is open to debate, and I'm not going to prescribe what legal geography is. But, for my purposes at least, it's, in part an attempt to think about the where of law to recognize that where law is actually in enacted or performed or practiced, including property, law and property relations makes a difference to how those relationships unfold.

But it's actually more than that to me. It's also a recognition that practice legal enactments, over and above the kind of particular places in which they are put to work and the often the challenges in moving from abstract notions to very particular, lived practices in real places.

Over and above that, it's also a recognition of the ways in which legal practice smuggles in or relies upon both implicit and explicit spatial, what we can call spatializations –particular spatial notions –boundaries, territories, scales, zones, and so on. So, for example, if we're thinking about property and if we're thinking about it in the sense of the kind of Blackstonian or the ownership model that we've talked about, we're already implicitly relying on a set of geographic or spatial notions.

So if you asked somebody. If you asked my neighbor, I'm guessing, I haven't asked him this question, but if you asked my neighbor what about property, he would define property according to his relationship to a particular space.

he would say, “oh, this piece of land is my property,” right?

What he's doing, of course. And a lawyer would say, well, no, that's not your property. Your property is a set of relations that you have vis-a-vis others, including non-humans in regards to the use of some resource. It's not the space, it's the relationship. But already, he has reified that property relationship and turned it into a space.

And that's not surprising because actually that's implicit in the way in which dominant notions of property encourage us to think about property as if it were a space, as if it were something that you could put a line on the map to separate you from your neighbor. so already we spatialize in a particular way.

We've drawn a line. We've created an inside and an outside. And when you draw a line, that's not just an empty categorical move, it's of foundational importance. The drawing of a line, and we can see this throughout human history, is foundational. It has all sorts of secondary effects, that are fundamental.

So, a legal geographic understanding, particularly in regards to thinking about property, is in part about place. And yes, thinking about the ways in which, for example, dominant notions of property efface local ecologies or place-based understandings that may differ or depart from those dominant notions.

But it's also about thinking through the ways in which, for me at least, certain property relations, as it were, are spatialized. For example, through the drawing of lines, through the creation of territories. And, and the argument is that that's more than additive.

It's more than just sort of adding another level to thinking about property. Perhaps it's in some sense, important in a more foundational sense. It's transformative. It, it shapes the way in which we actually begin to think about property, begin to think about what property could be or what property actually is.

So it has actually, I would argue, ideological effects, that, for example, help naturalize certain notions of property. You can see that if we go back to the history of privatization of land enclosure, for example.

[00:26:41] Frankie McCarthy: Yeah, so it's a completely different framing of the way that you even think about the types of questions that you can ask, let alone how you might try to answer those questions just from the ground up. The underpinnings of it are just, it's like a different operating system that you're working with to try to explore these issues.

[00:26:59] Nick Blomley: I don't come it like you do as a lawyer.

But I think it does maybe allow us to ask different questions. And it also may be. In a research sense, asks us to talk to different people or to gather different sorts of data. Not to give up on, absolutely not to give up on, more doctrinal analysis or more sort of a theoretical analysis.

But for me, directs us to kind of empirical work. Trying to understand on the ground how property is enacted, practiced, performed, contested, challenged imagined, reimagined.

[00:27:37] Frankie McCarthy: I wanted to ask you about some of the concepts that I've come across in the legal geography literature. So within the, maybe we're not calling it a discipline, but within some of the literature then there are a few that tend to occur that are quite innovative in, for me anyway, we're helpful in understanding how to think about these questions in a different way.

So the ones I've got noted down here are co-construction, so this idea of co-construction of law and space. So co-construction was one of them. Another one was the concept of the splice. And final one, s fun one is nomospheric technicians

I wonder if you could just in your words, define what these concepts mean.

[00:28:23] Nick Blomley: The co-construction of law and space. The idea of space and something else as in a constitutive relationship or as co-constructed is a sort of foundational notion that you'll find within contemporary human geography.

And essentially it's the idea that, you can't understand or it's more helpful to understand a set of social relations, including those associated with law. Law, obviously for me is social and political. If we just put it in simple terms, in a sense of a binary for a minute, those social relations produce spaces, but at the same time, the way in which those spatial spatialization are actually constitutive of or help produce the social relations more generally.

So law for example. Law obviously produces certain spatial configurations. It creates the bounded spaces of property that we've talked about, which are a very recent idea of course. If you think about the legal history more generally, the idea of property as something that has a discrete boundary from which others to be separated is not something that's been with us very long.

We can see the way in which those have been created, but then we can also think about the ways in which, in so creating those spaces, a set of understandings about subjectivity, about the person, about the ethical dimensions to people's relationship to land then also feedback and shape law and shape legal practice more generally.

So if you draw a line on a map, then the question is how do you enforce that, for example, because people then will be worried about people encroaching upon their land. People who were previously understood as commoners are now herding their cattle across what is now imagined as a sharp line in 17th century England. And so law has to change. And so out of that we get the changes to trespass law, for example. Trespass used to be understood in a much general, much more generalized sense as a wrong done by one against another. A tort, becomes reimagined in a much narrower sense as the unjustified incursion or the uninvited incursion of a person into somebody else's land.

So we can see there the kind of co-constitution of law and space. But of course, if you think about it, it's actually hard to say, well, that's law and that space. Because they're, so co-mingled and, and so co-connected

So it's hard for us to distinguish between that which is law and that which is space. Practically speaking, when you think about any given context, it's effectively impossible to disentangle the two. What we're relying on, of course, is an implicit binary, that is useful perhaps in helping us think these things through, but isn't particularly useful in understanding the actual co constitution t, that's happening in the real world.

So consequently legal geographers have tried to come up with kind of new words to think about the way in which the legal and the spatial are always already entangled in each other and co-constitutive and co-productive. So the notion of the splice is something I just came up with as splice of course implies both space and law.

We have the S and the P of space, and then the law, the L of law. That gives us the notion of a splice. And a splice is then something that is both spatial and legal. So a prison, for example, is legal in that it is associated with criminal law. And, people who are found guilty of certain crimes are detained at Her Majesty's pleasure, detained by the state for a designated period of time.

But a prison only works by virtue of the fact that it has gates and doors and security cameras and so on. It's both spatial and legal. You can't have one without the other. It's in that sense, a splice. We can take it slightly further, thinking about splicing. So moving away from the noun and recognizing the ongoing performative dimensions to the splice, we need to think about the way in which these splices are actually produced and sustained over time.

So a prison only works as a prison if it's performed as a prison by those who are subject to it and those who control it. Thus we can think of splicing.

[00:32:46] Frankie McCarthy: And then we were also going to talk about the nomospheric technicians.

[00:32:51] Nick Blomley: Well, the nomospheric technicians is a phrase used by David Delaney in his book, in which he talks about Nomosphere. And the Nomosphere is another way of thinking, if you will, about the splice. Put very simply there's that which is both spatial and legal. And a nomospheric technicians is of course somebody whose job it is to produce those splicings to make those splicings possible. So that could be the lawyer, that could be the prison officer. That could be the judge. Arguably it could also be the prisoner themselves, because of course, by conforming to the splice, they also reproduce and sustain that splicing. So nomospheric technicians refers to those who produce the splice through everyday enactments and practices as well as of course, you know, the engineers, the architects, the judges who also make that possible.

[00:33:49] Frankie McCarthy: Identifying the different technicians is such a great way of reinforcing that idea of the co-construction of law and space. You have to think about all of these things work together and the impacts that they have on each other. It's never just a one-way street.

So sustainability is a big interest of mine and my research and a big interest in this podcast series more generally. One of the themes that both me and the podcast are interested in exploring in our work is the way that sustainability goals or the likelihood of us achieving our sustainability goals, is in some senses impeded, or at least shaped to some extent by the way our property systems are organized. So that there's maybe a bit of a standoff there.

So, for example, I'm involved in a project at the moment with the Scottish government looking at the way our property law operates in relation to flats, apartment buildings, so what we call tournaments in the Scottish legal terminology. Because Scotland in common with many countries around the world is trying to improve the energy efficiency of its housing stock,

in order to meet net zero targets. So in a lot of places in the world, housing is not particularly inefficient. We use a lot of energy heating homes or cooling homes, and if you're heating a home in Scotland, a lot of the heat is being lost because the buildings are maybe not well designed, not well in insulated. So we need to improve the, the sustainability of our housing, the energy efficiency of our housing.

But in actual fact, the property law rules that apply to apartment buildings, tenement buildings in Scotland, make it difficult to do that kind of energy renovation work because in property law terms, the building as a whole doesn't exist. That the property law only recognizes a lot of individual flats that all happen to be kind of piled up on top of one another.

But the reality is it's a building and you need to treat the building as a whole if you're going to improve that energy efficiency. So that's maybe just an example of the way that the legal conceptual property runs up against what our sustainability goals are.

[00:35:52] Nick Blomley: Yeah. So I think the example of tenements in Scotland is a really interesting one in terms of the challenges that we face in, developing sustainability goals. And perhaps the example that you gave Frankie there is instructive in that legally the tenement is a relationship as I understand it, or a bundle of relationships associated with a particular type of housing use.

But perhaps the people who live in those spaces actually think about property as the space, of their unit themselves. Which makes it difficult for them to perhaps act collectively and come up with, collective forms of relationships and responsibilities that would actually make possible things such as more sustainable forms of energy use.

[00:36:33] Frankie McCarthy: And I think that's maybe a trend that exists more generally. So I don't know if you saw the recent piece by Brett Christophers, the Uppsala professor of geography in the New York Times. He was talking about the huge amounts of climate spending, federal public climate spending, in the US which he argued in that piece are going to what he thinks is gonna happen, that it will just support private asset managers.

They're going to use this public money to control a greater share of the green energy assets that they already have, as well as the land underneath the assets. The kind of ambitions of the project are being undercut by the way that the property rules operate to make use of that money.

So I think that's like a kind of lawyer perspective on it perhaps, but thinking like a legal geographer. Do you think there's other ways of thinking about the way sustainability and pro property interact.

[00:37:26] Nick Blomley: I'm really glad you asked me this question because it's one I haven't thought through carefully enough. But it is a fundamental importance, if I think we have to accept that private property and property tropes and understandings more generally.

The ownership model being perhaps one shorthand for thinking about this are fundamental to the architecture of the contemporary social order, which I would describe broadly as one. We can think of through the lens of some, say something like racial capitalism. If we accept that, I think we, as we have to, that, that architecture, is the kind of building blocks for the contemporary social order. And if we accept, as I think we have to, that we have to not only modify that social order, but radically transform it to achieve anything close to, what we might call sustainability, what we might call climate justice more generally, then, then clearly we're talking about something of great significance.

I mean, the ownership model is fundamental for, addressing or not fully addressing a whole bunch of other crises that we confront, crises associated with housing justice. for example, I've written a little more on this. They're also massively impeded by landlordism for example. And the way allocation of, say, urban land as well as rural land are organized. So clearly we're talking about something important.

In thinking about the kind of the way in which that architecture, that legal architecture, if you wanna call it that, creates impediments, I perhaps want to be thinking about the kind of organizing logics that are at play there as well as the kind of more formal institutional architecture, the way in which, certain people are incentivized to do X and not Y. I'm for example, conscious of the power of extractivism.

I live in Western Canada, in which nature is understood in a highly extractive way. As something that should be made available to private actors, via state property, that should be made available and to be used as a quote resource where a resource is understood in a very narrow sense as achieving anthropocentric, ends.

But then also not just the interests of the anthros, but also the interests of private owners, more generally. So the oil sands, for example, in Alberta, in Canada, are a fundamental importance to any possibility of achieving some level of climate justice. But a pipeline is being built as I speak, not very far from my house, to facilitate the increased extraction of those resources, which can then be shipped to international markets.

Now to understand that you have to understand, of course, colonialism, which turns, what was indigenous relations to land into something that then becomes, available for extraction. You have to understand capitalism, but you also have to understand property.

So, how is it for example, that those oil sands can be privatized? Well, because, they're understood in Canadian law as state property, crown land. And the land crown can then grant leases or grant, access to private corporations, energy corporations who then have a private interest in those lands.

They have presumably some sort of lease, which allows them then to extract it. Which is then tied, of course, to certain notions of what property should be for. I mean, Locke said, deriving directly from, biblical notions. God made the world for men to use and to subdue, and private property is the best way to do that. Yeah, we need to be thinking about that architecture and recognizing the importance of that architecture and what it makes possible. And then also what it effaces, what it ignores, what it denies, it makes impossible or less possible.

[00:41:17] Frankie McCarthy: I think we're sort of on the same page there about the idea that property, the way the dominant model of property at least, doesn't necessarily marry up too well with sustainability goals. But do you feel optimism in a perverse sort of way that the climate emergency that we're facing or the demands for climate justice that we need to start facing up to immediately.

That might be the thing that actually disturbs the model of property that has been so dominant over, the past 40 years or however long?

[00:41:46] Nick Blomley: Oh, Frankie, that's the question, isn't it?

I mean, at one level, yes. At one level, no. Yes. In that we know that the ownership model is an historical artifact. It's not been with us very long. In fact, if you think about certainly kind of common law notions of property, if that's just our time horizon.

But if you think also about other conceptions of property and land relations, indigenous conceptions of relations to land, which go back of course, millennia, We'd need to recognize that it's just a blip. So one level we could say, well, you know, it came emerged through struggle and then maybe it can also be contested through struggle and contestation, and it is being contested.

Of course. We know that. We know that particularly with indigenous land struggles, which push back against that extractive logic and speak to different understandings of land, different relationships to land in which the land is not a resource, the land is actually an ancestor, it's a relative. So being extractive when it comes to your relative is not a good thing.

[00:42:53] Frankie McCarthy: That's interesting that conception of land as being an ancestor, that different conception of property, that would be a good model of property for us to be globally employing at this time of climate justice. You might see because it would encourage us to formulate our property relations in a different way.

So in your work you've suggested that it doesn't matter which vision of property is the legally correct vision. What's actually important is which vision of property is felicitous. Could you break that concept down for us?

[00:43:22] Nick Blomley: This is speaking to the progressive property, scholarship. We can argue for alternative visions of property and we should, but that doesn't mean that they're actually going to be successful. So to think of performances as felicitous is to think of it as successful. Hernando De Soto’s very narrow understanding of land titling is successful, not because it's right, but because it aligns with other performances, what you might call assemblages of of property.

It plugs very neatly into the operating system of capitalism, racial capitalism, the incentives that are associated, with it. So that becomes challenging then of course, because just railing against the ownership model, I would argue, is not going to be sufficient in changing the system. Showing alternative conceptions of property, for example, indigenous conceptions of property as more, just as more ecologically, just as more, humane, as more intelligent, is vital work.

But again, in and of itself, that's perhaps not going to change the operating system. It's vital work, but it's not in and of itself sufficient. We need to be, I think, thinking if we follow that performative argument, which we don't have to, but if we follow that argument, then perhaps we need to be thinking creatively about actively performing property differently rather than just complaining about it.

We can think about, as we can see the multiple experiments that are happening on the ground, which we don't often see, the multiple experiments that are happening on the ground in which property is being differently performed. For example, indigenous people throughout the world are performing that relationship to property and are doing so, often in conscious contestation with those dominant, extractive models of property. But we also perhaps need to be thinking about how it is that certain performance has become dominant. We need to be thinking about the operating system itself and trying to find ways to understand how that system works.

And then, and maybe try to change the ways in which performance has become successful more generally. So that becomes more systemic rather than simply, focusing on a particular conception of property, more generally.

[00:45:41] Frankie McCarthy: Right. So that fits in with the whole legal geography, kind of co-production, co-construction idea. It's not going to be enough just to look at the legal rules or it's not going to be enough, just in one instance for a different kind property performance to take place.

Really, you need all of these things to be looked at together and repeatedly so that they evolve.

[00:46:03] Nick Blomley: It depends on who you are in this, in this struggle. I come at this as a scholar most immediately. And so, you could argue as scholars, our job is to try and find those alternatives, to try and find those different realities and foreground them, not simply because that then helps us to push back against the dominant model.

But, also because it just gives space to that which is being erased by that those dominant logics. That to me seems important work. And then finding ways in which we can sort of hold those up, recognize their potential. Land trusts, for example, community land trusts or radical community land trusts or indigenous driven forms of land repatriation.

All these sorts of things, tend not to be seen, but scholars, we have the political capital, the social capital to maybe celebrate and to uplift those struggles.

[00:46:55] Frankie McCarthy: You and I attended our workshop on concepts of legal geography, where there was quite a lively discussion. one of the themes that emerged from the, the conversation that day was this idea that perhaps legal geography is good at enabling us to unpick problematic conceptions of property, but perhaps legal geography is not the place to look for answers about how things should change or how to make things change. But actually, I think based on what you were just saying, there is an important role for, for scholars. Even almost a sort of an activist role for scholars in legal geography as well as, you know, across the spectrum of disciplines to uncover different property practices to highlight different property models and to use the social capital that we have to kind of get the message out there.

[00:47:43] Nick Blomley: I think legal geography, if it exists as a coherent culture of scholarship, has been very good at critique. I think that's what drives a lot of the work and drives certainly a lot of my work. So challenging, contesting, denaturalizing in particular, by bringing space into the room.

I think that's very important. Legal geography is not perhaps, good at, although there are some who work in this, good at making, prescriptions within the terms of law more generally. Arguing for legal remedies, for example, although I know of colleagues who work in those areas. But I think, yes, you're right.

I think, geography can be and has been a good tool for uncovering alternative possibilities and trying to find ways in which to hold those up and make those, visible within the academy. As well as mobilizing resources, institutional resources, for example, in facilitating those and making those possible.

And I think that's important in the sense also in that, legal geography or if I think of my work more particularly, my goal has been to identify people who are not always recognized as having standing in terms of making kind of contributions to social problems, whether they're relating to the climate crisis or housing justice.

If we accept that legal spaces are produced through multiple nomospheric technicians technicians, as we discussed earlier. Then we need to recognize that it's not just the experts who produce those spaces, it's also people on the ground. So I've been doing a lot of work with houseless people or people who are precariously housed.

And, if you try and engage kind of carefully with those folk and spend time with those folk and give them resources such that they can have time with you, they'll tell you all sorts of remarkable things that, that we didn't know, or I didn't know about the way in which property law works on the ground. For example, in terms of regulating people's possessions.

That's a project I'm working on now and they'll also have really good ideas for how things could be better. And sometimes those ideas are not, well, you know, we need to change this doctrine, or we need to, you know, modify the doctrine of tenure. They'll be maybe more systemic in their direction, but in so doing, of course, they're proposing powerful ideas about how legal space should actually be rather than how it actually is.

[00:50:12] Frankie McCarthy: Yeah, so we need to do some more listening as well as all the talking that we normally do.

[00:50:17] Nick Blomley: I think you're right. And, and a question of who we listen to, I think is important.

[00:50:20] Frankie McCarthy: Well, I think that's a nice, optimistic note as well as a bit of a call to action to conclude on. So maybe we should wind things up there. Thanks very much for talking to me today, Nick.

[00:50:31] Nick Blomley: Thanks, Frankie. It's been very interesting and stimulating. I'm going to have to think things differently now in all sorts of ways.

[00:50:38] Adam Calo: Special, thanks to Frankie McCarthy for being the guest host for this episode.