Judicial Discretion and the Right to Property

Summary

Few books on property law recognize the importance of judicial discretion or of judicial value, yet these attributes are critical to the protection of property rights in society. There is, moreover, little discussion concerning the role of judges in ascribing property rights. Following an introductory chapter which discusses the development of the idea of moral property, this book considers three of the most contentious areas of property law adjudication in recent English land law -- mortgages and co-owners, bankruptcy and insolvency, and landlords and tenants. Case by case analysis of individual judicial pronouncements is undertaken in these areas, with the suggestion that decision-makers are often not engaged in a dispassionate rule and rote application of statutory law, but are actively making choices with a view to doing justice as they see it. This book offers some proposals on how these choices can be better executed on the basis of a general concern for citizenship rights in our society. The author argues for a 'social trust' in property disputes, that can be worked out by the widespread use of a 'Brandeis Brief', using social information in the judicial forum to address social concerns, for the attainment of greater social justice.