The earth is the necessary condition for human and other beings, but it has been almost invisible as an entity in Western thinking. In recent times, the oddness of this situation has been increasingly apparent – the one thing upon which all human life, all human subjectivity, and therefore any rights we may think we hold depends, has only very fragile legal protections. Without the earth, our rights are worthless. And yet it is almost invisible in Western philosophy and jurisprudence.
We don’t need to think at the scale of the earth to wonder about the ontology that underpins law, rights, and property. The differentiation between subjects and objects is paramount in this ontology, but how far is it sustainable and justifiable? Are we not all materially related, and emergent as entities, as a result of these relationships? Aren’t human subjects an effect as much as a cause of social meaning, including the meanings that arise out of relationships with the physical environment and all of its objects?
My starting point in this paper is that there is nothing ‘given’ or natural about the subject-object distinction: rather, it is an effect produced by a distinctive matrix of ideas, physical-environmental facts, and social behaviours or performances. I explore what it might mean for property if we shift the human being from a position of control over the world to a position of being situated fully in the world. I argue that there are a number of intellectual resources within Western thinking which promote an object-oriented approach to property. This prefigures an approach to property which is more attentive than traditional property scholarship to the range of relationships between humans and the world.
Margaret Davies is Matthew Flinders Distinguished Professor in the School of Law, Flinders University. She is a Fellow of the Academy of Social Sciences in Australia and the Australian Academy of Law. Margaret has written several books on legal theory. Her new book, Law Unlimited: Materialism, Pluralism, and Legal Theory, will be published in early 2017.