Property and the State or ‘The Folly of Torrens’: A Comparative Perspective

28 Pages Posted: 30 Oct 2019

See all articles by Daniel Fitzpatrick

Daniel Fitzpatrick

Monash University

Caroline Compton

University of New South Wales (UNSW) - Faculty of Law & Justice; Western Sydney University

Joseph Foukona

affiliation not provided to SSRN

Date Written: October 20, 2019

Abstract

Australian lawyers often extol the virtues of the Torrens system as a means to secure property in land. Yet, the comparative evidence of benefits is mixed and context-dependent, particularly in terms of the nature, provenance and capacity of the state. This article analyses ways in which positivist land laws, including Torrens systems of title by registration, create legal understandings of property that are tied closely to projections or assumptions of state territorial authority. The intertwining of property and sovereignty constructs allodial conceptions of property based on possession or custom as subordinate, if not illegal, simply because they exist in social orders that lie beyond the administrative systems of the state. As a result, there is a chronic fragmentation of legal and social understandings of property in areas of the world with Torrens law and large numbers of informal settlements. The case studies include the Philippines and the Solomon Islands.

Suggested Citation

Fitzpatrick, Daniel and Compton, Caroline and Compton, Caroline and Foukona, Joseph, Property and the State or ‘The Folly of Torrens’: A Comparative Perspective (October 20, 2019). University of New South Wales Law Journal, Vol. 42, No. 3, 2019, Available at SSRN: https://ssrn.com/abstract=3472646

Caroline Compton

University of New South Wales (UNSW) - Faculty of Law & Justice

Kensington, New South Wales 2052
Australia

Western Sydney University ( email )

Sydney, NSW 2751
Australia

Joseph Foukona

affiliation not provided to SSRN

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