This paper uses the case study of trespass and access rights to Crown-owned grazing land in the South Island high country to illustrate and examine a proposed theory of the politics of implied law of property.
Implied law invokes “the familiar fact that the law says more than it explicitly states, that there is more to its content than is explicitly stated in its sources, such as statutes and judicial decisions.”[1] While explicit law relies on the fundamental principle that the law is what it says, implied law is what is expected and believed to be law, and followed as if it were law, before the legislature passes a statute or a Court makes a decision.
Numerous scholars have observed that the expectation of legal entitlements is often more persuasive than the actual entitlements themselves[2], we propose that these expectations and their influence creates a pattern where private interests benefit at the expense of public interests. The law may lead or follow such a pattern. The story of access to the South Island high country also exemplifies a broader pattern in implied property, that an assertion of exclusion establishes power that often becomes a private right recognised at law.
[1] Joseph Raz. 1986. “Review: Ronald Dworkin: A New Link in the Chain.” California Law Review. Vol. 74, No. 3. pp. 1103-1119.
[2] See for example John Copeland Nagle, Law’s Environment How the Law Shapes the Places We Live (2010) 216