Redrawing the Taxonomy of Property Law in the Light of Contemporary Use of Urban Surfaces

Drawing on the jurisprudential work on Arvind and Sheehan (2015) which interrogates contextualist and interpretivist approaches to the taxonomy of private law, this paper looks at contemporary social interactions with urban surfaces to consider whether existing taxonomies of property law are fit for purpose or is some reframing needed? In particular this paper takes into consideration the social interaction with the built environment reflected in activities such as graffiti, guerrilla gardening, vertical greening, the sport of parkcour and the leisure pursuit of park runs. These human engagements with physical space have been selected because each activity ranges across a spectrum of acceptable to unacceptable, legal to illegal or outlawed. They are activities with variable temporal impact on urban surfaces, and about which there are divergences of tolerance. They are also examples of uses of urban space that challenge the traditional concepts and principles underpinning the law of property in public places rather than the private space of the home. At the same time there may be insights to be gained from the human rights dimensions that have informed a re-shaping of private, residential property. In particular it will be argued that human rights are at the edge of the line between the normatively acceptable and the normatively questionable control of public space, for example the use of spikes to prevent rough sleepers, or bollards to prevent extremists using vehicles as lethal weapons, both raise human rights issues, but also control of space questions. Where do these activities, or any of the others referred to above ‘fit’ within our understandings of property law and how do they inform its taxonomy?