2016, Vol. 7, Issue 2, pp 409-418
In his book about ‘Who owns Scotland and how they got it’, Andy Wightman tells the story of a miner walking home one night with a couple of pheasants in his jacket when he gets stopped by the landowner. ‘This is my land’, the laird tells him, ‘and my pheasants, so hand them back’. The miner says, ‘Your land—how did you get it?’ ‘I inherited it from my father’, says the laird. ‘And who did he get it from?’ ‘From his father; this land has been in our family for four hundred years.’ ‘And how did they get it then, four hundred years ago?’ ‘Well’, says the laird, ‘they fought for it’. ‘Fine’, replies the miner. ‘Take your jacket off and I’ll fight you for it now.’
Sometimes situations or events rupture the routine expectations we have and which we behave in accordance with. In doing so they can expose the grounds on which these expectations rest, and they may force us to consider in a new light what has been extensively taken for granted. In responding to such an experience it is sometimes a matter of re-adjusting, of shifting the cognitive framework, of re-interpreting. Other times, the jolt is more serious and cannot be readily assimilated. In the shock it produces, there is a sense of unease, a sense of strangeness—which is sometimes registered in uneasy laughter—that will not easily go away. The story of the miner and the landowner might work in this way. Landholding is not something we take our jackets off and fight for. It is regulated by the laws of property, inheritance, title registration and the like. Except, that at some point it isn’t, or wasn’t. That property in land is gained, at some time in the past, by violence or theft is not likely to be disputed; but it does commonly have to be forgotten. This goes as much for continents—Australia in 1788, for example—as it does for landed estates (and the birds that just happen to live on them). To be too-reminded of this however provokes a sense of disorientation. And precisely because of this, it feels like something must be done about it by way of response. But what exactly? Even that greatest of philosophers of consistency, Immanuel Kant, in noting the same problem about theft and property, was forced to respond in a most unphilosophical way: ‘Best not to dwell on it’, he said, ‘just start from where we are and what we’ve got now’. (Perhaps someone should have asked Mr Kant to take his jacket off … )
Where exactly the boundary between property and theft is drawn—between what is a legal gain and what an illegal one—seems to have a degree of contingency to it. But that there is such a boundary, which must be established if we are to have settled—or ordered—ways of acting with respect to each other and things in our society, appears however, to be necessary. Yet this very necessity seems, in turn, to have something of the contingent about it—in the origins of landed property, a taking, say, that is, from the perspective of the order it brings into being, itself neither legal nor illegal: in Australia, a non-justiciable act of sovereignty that ‘founds’ the nation and its law; or in the case of the laird’s ancestor, the founding of right on the basis of might...