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Thematic Issue: Conceptions of Ownership / General

Property and the State or ‘The Folly of Torrens’: A Comparative Perspective


Daniel Fitzpatrick, Caroline Compton and Joseph Foukona

Australian lawyers often extol the virtues of the Torrens system as a means to secure property in land. Yet, the comparative evidence of benefits is mixed and context-dependent, particularly in terms of the nature, provenance and capacity of the state. This article analyses ways in which positivist land laws, including Torrens systems of title by registration, create legal understandings of property that are tied closely to projections or assumptions of state territorial authority. The intertwining of property and sovereignty constructs allodial conceptions of property based on possession or custom as subordinate, if not illegal, simply because they exist in social orders that lie beyond the administrative systems of the state. As a result, there is a chronic fragmentation of legal and social understandings of property in areas of the world with Torrens law and large numbers of informal settlements. The case studies include the Philippines and the Solomon Islands.

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(2019) 42(3) UNSWLJ 953: