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Thematic Issue: Conceptions of Ownership / General

The Renewal of the Old: Lionel Murphy’s Progressive-Relational Conception of Property


Paul Babie and Kyriaco Nikias

As we approach Justice Lionel Murphy’s 100th birthday on 30 August 2022, this article explores and renews a significant aspect in the jurisprudence of this truly radical judge: the social relations or progressive view of property. Justice Murphy both identified and judicially expounded this view well before the American social relations or progressive schools. And rather than merely identifying it as some intellectual museum piece, the article also builds on it. The article contains five parts. Part I contextualises the jurisprudential debates surrounding property. Part II recounts Justice Murphy’s judicial radicalism. Part III explores the elements of Murphy’s progressive-relational view of property. Part IV applies the elements of Murphy’s progressive-relational property to the High Court’s recent native title decision in Northern Territory v Griffiths. Part V offers some concluding reflections on the bright future for property found in Murphy’s conception.

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(2019) 42(3) UNSWLJ 790: