Subverting the purpose of property law: Filling a critical space in its teaching and learning

Abstract

A critical review of standard Australian property law textbooks reveals a widespread convention in the selection and presentation of key cases in property law education. The conservative and primarily commercial nature of property case law seems broadly accepted and reproduced through dominant teaching practices in the core law curriculum. While legal educators may teach students that property is a function of ideology, society, economy and history, we contend that property law education often misses an opportunity to promote in students an active critical engagement with the substance of property law in a way that might reveal the priorities in our world.

In the face of global climate change, entrenched and increasing economic inequality, as well as a pervasive colonial, anthroparchic and patriarchal mindset, property law offers a unique opportunity to understand the role of law, and property itself—in generating these problems. But it is not enough, we contend, to highlight this to our students by a didactic ‘trust us’ approach. Instead, we advocate for a pedagogy that presents key cases through a series of questions designed to focus student learning on the connections between these cases and the dominant culture of our nation. Such an education can only arise through a markedly different presentation of the canonic cases of property law. We see a space within the corpus of property law as taught, to become subversive; to unlearn the dominant order through engaged, critical inquiry that questions and rethinks the canon. This paper presents our case for teaching property law subversively, with a case study in how that might be done.