By J Schacht
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Additional resources for Origins of Muhammadan Jurisprudence
The concept of ‘touch and concern the land’ is used as foundational in the law of leases, as well as easements and restrictive covenants, to determine the extent of, (and to create), liability in relation to land which is owned by or shared with another person. In leasehold law, this concept is used to decide whether a ﬁrst tenant may wander oﬀ and escape her history, her original contractual liability, and whether a new landlord or tenant is to be bound by a promise made by others. The phrase is said to originate in Spencer’s Case (1583) 5 Co Rep 16a and a vast number of land cases go through here.
However, drowned in doctrinal detail and countering any threat to the borders of the subject area as a scholarly enterprise, the legal ‘scholar/explorer’ avoids and excludes potentially destabilising ‘realities’. Anything pertaining to the family is problematic, not least because ‘family law’ approaches are soft, pliable and fail to oﬀer clear-cut rules (Smart 1989: 15, Bottomley and Roche 1988: 95–96). The border with ‘family matters’ in trusts and estoppel is strongly policed amid constant reminders of the need for clarity, matched with dire warnings about the dangers of discretion and of taking into account broad social factors when making rules or applying them.
What throws of the dice made ‘touch and concern’ itself a ground of land law? And what throws of the dice brought the Landlord and Tenant (Covenants) Act 1995 which abolished ‘touch and concern’ for new landlords and tenants? A case can be like a dead leaf 16 Anne Bottomley and Hilary Lim hanging on a tree, but is also a ﬁsh darting in water, or a bird ﬂying between the branches. However, these multiple operations of random forces do not match the expected reﬂection of law in the ﬁxed aerial photographs and must be suppressed.