Copyright (c) 2010 Journal of Transnational Law & Policy
Journal of Transnational Law & Policy
NOTE: KEEPING THE WELCOME MAT ROLLED-UP: SOCIAL JUSTICE THEORISTS' FAILURE TO EMBRACE ADVERSE POSSESSION AS A REDISTRIBUTIVE TOOL
2010 / 2011
Journal of Transnational Law and Policy
20 J. Transnat'l L. & Pol'y 73
Missed Opportunities: Introduction
Lord Justice Nourse made the statement above in a seminal case regarding adverse possession out of the United Kingdom. His purpose was to clarify the difference between an implied license by prescription and adverse possession as a limitation action. Yet, his use of the phrase "possession as of wrong" is illustrative of more than just this distinction. "Possession as of wrong" or, perhaps more appropriately, wrongful possession, tracks the intuitive reaction to adverse possession as a concept. Adverse possession, a doctrine which grants a squatter (or boundary encroacher) legal title to another's property, cannot be right. Rather, the grant of title to an adverse possessor must be wrong, both in that it effectuates a wrong on the rightful owner and in a moral sense, insofar as it is understood to be theft, and theft is generally agreed upon to be a moral wrong. Nevertheless, the doctrine of adverse possession persists.
While some theorists defend adverse possession on utilitarian grounds and others challenge it with Lockean, rights-based theories, human rights or social justice theorists rarely discuss the doctrine. Scholars debate a proper definition of the term social justice, but herein it describes both theorists who, and theories which, drawing upon human rights and redistributive justice principles, focus on more egalitarian property systems. J.A. Pye (Oxford) Ltd. and another v. Graham and another (Pye), a recent U.K. case, raised the question of whether adverse possession may violate a human right to own property. The case implicated the then ...
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