Document Type

Book Chapter

Publication Date

2016

Subjects

property law; land law; real estate; personal property; intellectual property; property theory; legal education; legal practice; lawyers

Abstract

Property law — that body of rules which describes and defines relationships between people with respect to things — involves many choices. The choices include determining when it is appropriate and desirable to label something as property or, more accurately, as subject to a relationship between people based in the rules of property law. The choices involve asking questions, including why it is that we create relationships based in property and who should benefit from them. The rules of property law are notoriously difficult and complex, and they frequently appear disjointed and unconnected, but they are not arbitrary. They are based on choices, sometimes made explicitly, other times implicitly, about what is important. One of our principal goals in this collection of property law materials is to emphasize that the making of choices is a necessary, although commonly under-acknowledged, element in creating a regime of property law. We have made a choice to highlight what Margaret Davies has described as ‘‘asking the why question”. This involves using materials that prompt not only an investigation of the rules of property law but also the justifications for those rules. Another choice we have made in compiling this material is to highlight the disparate sources of property law. Excerpts from the decisions of common law courts dominate the page count, and learning to derive the principles and the rules from these decisions is a core element in a common law legal education, but there is much else besides. We have chosen to emphasize Indigenous legal traditions as one of the sources of Canadian property law alongside the civil law tradition in Quebec and the common law tradition (including principles of equity) in the rest of the country. This presents challenges, not the least because the concept or category of property, as it has developed in western legal traditions, sits uneasily with many Indigenous legal traditions. But it is also a useful reminder that the rules governing human relationships with respect to things are not only jurisdictionally, but also culturally and historically specific. The law of property is also to be found in a great diversity of legislative instruments, ranging from city by-laws, through provincial and federal statutes and regulations, to international agreements. These sources are scattered throughout the volume, but using them presents other challenges. Within the Canadian federation, property is primarily a matter of provincial jurisdiction, and the diversity of property regimes among the provinces limits our capacity to delve into the particular statutory framework of any one jurisdiction when producing a set of materials that is relevant across Canadian common law jurisdictions. As a result, we include examples from different jurisdictions and leave it to course instructors to add as much or as little of what is particular to their jurisdictions as they think desirable.

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