Real Property is predominantly taught in Australian law schools in much the same way as it has been taught for decades, or (probably) longer. ‘How much have the basic rules of property that we teach today… changed from what we taught forty years ago?’ In this paper, we offer the provocation that the approach to teaching the subject focuses on, if not fetishizes, its technical aspects without connecting these to the logic of related private law subjects and without situating property within its economic, environmental, political, and legal contexts. We recognise that individual teachers will engage different pedagogical tools and overlay teaching with different curricular goals, but observe that this individualized practice (to the extent that it occurs) exists within a broader established discourse of technical and detailed rules that sets the benchmark of what must be known.

A critical review of standard Australian property law textbooks reveals a widespread convention in the selection and presentation of topics and key cases in property law education. While legal history is often used in introductory chapters to explain and/or legitimate the status quo, there is insufficient acknowledgment that colonisation in Australia continues. Quarantining historical contexts to introductory chapters can imply an inaccurate perspective about property law in Australia: that it comprises only Anglo-Australian law and that Aboriginal and Torres Strait Islander Australian property regimes do not currently exist save through the whitefella law of native title.

Occasional attention to the central role of natural resource ownership and use in property law has increased modestly over time in the curriculum, but often without attention to the social and environmental consequences and contexts. Some real property courses present in a critical way largely outdated notions of gender and sexuality in significant case law, but often without attention to their significance as examples of the agency of property law in constructing and reproducing relations of social and economic power.

In this chapter we contend that the approach to teaching real property law in Australia takes a ‘conserving’ approach to the law. It represents the tradition of conservatism articulated by Edward Coke—namely that the common law is ‘a fixed body of principles dictated by reason.’ This ‘establishment’ position is apparent in real property textbooks and the structure of courses. While courses are necessarily designed to satisfy the prescribed curriculum requirements of accreditation for professional practice, the almost exclusive focus on the content of real property does not prescribe any particular pedagogy and does not foreclose the diverse approaches to delivery and assessment that are available. Reproducing conventional approaches to teaching real property is a commitment to conserving a particular and self-referential view of property law as neutral rather than agential in constructing significant social and environmental relations. The conventional approach to teaching real property limits the capacity of today’s law graduates to develop the field and ensure its continuing viability in the 21st century.

The consequence of the conventional approach to teaching real property law is to reproduce the dephysicalised view of land as the foundation for market transactions that is insensitive to, if not indeed instrumental to the creation of profound social inequality. We propose a different approach. We encourage real property law educators to better equip lawyers, and society, with a suite of tools to subvert that view, redress its consequences and lay the foundations for a more equitable and sustainable property regime. Our approach values the importance of conserving the foundation tenets of law more broadly such as the rule of law. But our aim is to achieve law’s purpose through subverting the long outdated and dysfunctional property regime operating in Australia. Elkins observes the paradox of subverting through conserving thus:

When we were secure in the knowledge that we knew what we were doing, law teaching was (and is) an activity of complicity in the denial of law’s failure. Law conserves equally our freedom and social injustice. It is only when law and its teaching are both conserving and subversive activities that the world we make in our teaching will be worth living and the professing of faith and truth(s) will once again be possible.

This chapter foregrounds the importance of teaching real property to the ongoing learning and unlearning of the legitimating function of property law in colonial, patriarchal and anthroparchic land distribution; and the facilitative function of property in creating and entrenching everyday economic inequality and environmental degradation. Part II of the chapter identifies the unique importance of real property law, as a regulatory field, to either reproduce or subvert the conditions and effects of the climate crisis and social inequality. Part III of the chapter reviews the conventional approach to teaching real property law which is premised on a traditional view of real property as an exclusively private law subject and argues that legal education can contribute to a different conceptualisation of what real property is and what it is for. Part IV of the chapter considers potential subversions of the conventional approaches to teaching real property law by paying closer attention to, and interrogating, both the paradigmatic and contextual registers of land. The chapter concludes that the best strategy through which to achieve these potential subversions is ‘conserving’ the dominant content as the most appropriate and effective objects of critical and contextual pedagogy.