Melbourne Law School - Theses
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ItemAn expressive theory of possession( 2017)Possession is universally regarded as a keystone concept within the law of property. Yet, it is also notoriously complex and poorly understood. Although it is uncontroversial to say that, at common law, possession is a “root of title”, or way of creating an original property right in a tangible thing, leading scholars agree on little else. The disagreement spreads across several fronts. There is no consensus on whether possession is simply a fact that creates property rights, or whether it also describes a sort of legal interest in an object of property. There is also disagreement about whether possession is a simple, observable fact about physical control or a more complex, and uniquely legal, concept concerned with the particular intention, or animus, displayed by the possessor. And this is to say nothing of the broader philosophical argument about why the unilateral act of possession should create a right in rem at all. This thesis aims to explain the nature and function of possession in the law and, in doing so, to demonstrate that the concept is far simpler than generations of lawyers have been led to believe. The expressive theory of possession developed in this thesis has important implications for the way in which lawyers conceive of possession in both theory and practice. This thesis argues that possession is not a right, or other form of jural interest, but a fact that creates original property rights in objects of property. Although this is not in itself controversial, the account offered in this thesis departs from traditional Anglo-Australian explanations in so far as it stresses that the significance of possession has little, if anything, to do with the ability of the possessor to exercise physical control over a tangible thing. Instead, it is argued that possession plays an almost exclusively expressive role within the law of property. That is, certain acts amount to “possession” because, within a particular population, they send a recognized and accepted signal about the intention of some person to stake a claim to an object that counts as a “thing” within property law. Moreover, drawing on insights from game theory, the theory of possession developed in this thesis departs from influential philosophical explanations in so far as it argues that, despite its obvious and important distributive consequences, possession’s status as the rule that answers the most basic questions of mine and thine cannot be not attributable to some moral quality that is peculiar to acts of possession.
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ItemInstitutions of the dead: law, office and the coroner( 2017)This thesis writes a history of the institutional life of coronial law in the nineteenth and twentieth centuries. The office of coroner has occupied an important role in the common law since the twelfth century. Its status may have waned, its duties may have changed, yet its enduring concern with investigating the causes of death has preserved its vital role in the juridical governance of the dead. This thesis offers a historical account of the modalities by which coroners have occupied their offices and formed lawful relations with the dead in Australia. It does so by examining coronial law in terms of its technologies and its institutional formations. The chapters that follow explore a range of lawful technologies, including place-making, architecture, super visum corporis, manuals and files, each of which became attached to the conduct of the office of coroner in the nineteenth and twentieth centuries. The thesis thus offers an institutional history of the coroner by thinking through how technologies have attached the dead to coronial institutions, how coroners have performed their offices, and how they have assumed responsibilities for caring for the dead.