Judicial Discretion and the Right to Property

Using a case by case analysis of individual judicial pronouncements, the author focuses on the importance of judicial discretion in property law, and the protection of property rights in society, suggesting that decision makers are often not engaged in a dispassionate rule and rote application of statutory law.

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Following an introductory chapter which discusses the development of the idea of moral property, this text 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 proposals on how these choices could be better exercised on the basis of a general concern for citizenship rights in our society.