When the law is silent, trespassers w...: Law and power in implied property rights

Abstract

In the magical world of Winnie the Pooh, Piglet lives in a house signposted “TRESPASSERS W.” The golden silence that follows the W allows Pooh and his friends to wonder about the sign’s meaning, which Piglet insists honors his grandfather, Trespassers William. Piglet’s grandfather aside, silence in the law allows competing interpretations to arise and flourish in the realms of rhetoric, narrative, power, and politics. Implied property would seem unpredictable, because it is an amalgam of volatile elements: norms, not law; narratives, not principles; and the raw power of winners and losers, not the settled restraint of authority. Yet, the doctrinal instability of implied property is easily manipulated, bringing theories of interest-group politics and political ecology to bear. The case study of The New Zealand Fish and Game Council v. Attorney General and Others (2009) illustrates the proposition that power, narratives, assertion, strategy, and property itself work together to allow implied property to prevail over explicit law, and private desires over public interests. The story of access to the South Island high country also illustrates a broader pattern in implied property—that an assertion of exclusion establishes power that often becomes a private right recognized at law.