The aspirations to autonomy, independence, and equality that had so effectively boosted the discourse of modern dominium were never realized. The rationalization and expansion of the economy generated enormous wealth inequalities between the propertied classes and the large class of propertyless wage laborers. The latter experienced oppression rather than autonomy, material dependence rather than the independence, and exclusion instead of equality. The “social question” prompted social reformers of all stripes to interrogate the role of property law (in the emergent industrial world. The new political and intellectual climate ushered in by the “social question” transformed the ideological discourse about property, the concerns of the jurists, and, to an extent, the doctrines of law of property. Alternative conceptualizations of property focused on social relations, redistribution and cooperation, started appearing in the writings of philosophers, economists and pamphleteers. And a new generation of jurists, interested in functionalist and consequence-based approach to property, gained power in law faculties around Europe, Latin America and beyond.

It is well appreciated that legal systems are imbued with patterns. Given their constructed nature, use of precedent, application of principles and multitude of law-making instruments, it is unsurprising that links, repetition, practices and relationships are identified within and across legal systems; and international law is no different in that respect. As a field, it has developed at various points in line with a range of patterns as it responds to particular propositions, assertions, circumstances, events or challenges. And as it has fractured and subdivided into specialist areas, that process has been replicated, each sector of international law producing its own distinct reiterations. Clearly not the sole pattern – but certainly an especially potent one – is the centrality of property and commerce.1 When the history of international law is examined, a repeated process of right-construction can be observed and we can see that mechanisms and artificial constructs have repeatedly been developed to place property and commerce at the centre of international law. Concepts, treaties, arbitrations, even the use of language as a mechanism were all new devices, each responding to contemporary needs with a new construct: ostensibly a break or change of direction but always actually preserving core, central principles, supporting a private-rights focus in rules for international application, creating overall a continuity of approach.