43rd Annual Conference of the Australian and New Zealand Law and History Society

Commissions of inquiry were sent to diagnose law, governance, and economy in almost every British colony between 1819 and 1833. They produced an enormous archive of public and private commentary on the nature of colonial law, the imperial constitution, and the social and political life of the colonies. This was a counter-revolutionary, conservative project, yet its findings underpinned some stunningly ambitious efforts to reconstitute the empire, as my colleagues Kirsten McKenzie, Naomi Parkinson, David Roberts and I outline in a forthcoming book.

In this address, I will use our project to explore the dynamics of continuity and change in the processes of nineteenth-century conservative reform. I will do so by focusing on the archive itself. Drawing from examples across the empire, I will outline how the ways commissioners gathered, stored and communicated information shaped the outcomes of their inquiries. I will show how key bureaucrats used (and ignored) this information to turn reform ideas into pan-imperial templates that themselves contain important articulations of the nature and limits of the imperial constitution. And I will explain how this sprawling and diverse archive profoundly shaped our own research questions.

Few scholars, except perhaps the most quixotic of legal theorists, and certainly no respectable legal historian, would suggest that the law of contract can be extracted from the society in which it operates. It would be ridiculous to suggest that contracts in ancient Mesopotamia, the Roman Empire and nineteenth century London, were anything other than quite different in character. But in making that assertion another angle is typically overlooked. Context should not exclude all other considerations. Features of the law of contract in quite different societies show lawyers grappling with some problems which, if not identical, are, on closer inspection, in fact quite similar. This is not a reflection of some legal land of lost content, nor some nostalgic vision of a golden age, nor even a theory of legal transplants. Differences between legal systems geographically and across time are very real. I would, nevertheless, suggest that other sorts of valid comparisons can be made. For want of a better terminology these might be termed echoes – or a study of the way that different legal systems approach what are at base analogous problems.

This paper explores the notion that our lawful relations with land are not always rational. Or indeed, of this world. These landed relationships cannot be categorised as simply transactional, or efficient, or involving the exercise, enjoyment, or enforcement of prosaic property rights such as the right to exclude, the right to alienate, the right to possess, and so on. Rather, such ‘less than rational’ relations are, what I term ‘metaphysical,’ adopting a dictionary definition meaning, ‘of, or relating to the transcendent, or to a reality beyond what is perceptible to the senses.’ Similes for ‘metaphysical’ include ‘abstract’, ‘esoteric’, ‘spiritual’, ‘philosophical’, or even ‘supernatural’.

There is a rich heritage of interests in land that speak of relationships that evoke or imagine the metaphysical. They subsist alongside a series of fault lines where the ancient and the modern, the sacred and the secular, the worldly and the otherworldly, and the ‘enchanted' and the ‘disenchanted’, converge and coalesce. This is an interstitial, amorphous space that has been largely lost to plain sight due to the narrow, ahistorical understanding of real property that dominates our contemporary understanding of the institution, and its laws, customs, doctrines and theories.

This paper looks to the past to explain (or at least identify) this hidden, largely peripheral, often arcane, yet extant present of things metaphysical in real property. This paper seeks to remind us of the institutional mysteries of land, our ancient lawful relations with it, and the sometimes-strange contours of property law that reflect this provenance.