Sunday, July 15, 2012

#196 / Property

William Blackstone, pictured, was an English jurist of the eighteenth century, most noted for his Commentaries on the Laws of England. Originally published by the Clarendon Press at Oxford, from 1765-1769, Blackstone's Commentaries played a significant role in the creation of the American legal system.

While I have a copy of the Commentaries in my law office, I tend mostly to look "at" the Commentaries, not "in" them, and I am not sure that I would have recognized the following quote as being from Blackstone, without the reference being made clear in a recent book review in The Nation:

Nothing so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the eternal things of the world, in total exclusion of the right of any other individual in the universe.

Having outlined how the rights in "property" are most often understood, Blackstone continues his observations by saying that there is:

no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground because father had done so, before him.
"Property," in other words, pertains to that "human world" which we create, and while we can decide (as we have) that pieces of paper give specific human beings the right to exercise dominion over particular portions of the physical geography of the world, there is no such "natural" right, which means that the "laws of property" can be reconfigured and revised, to reach a different result.

The public already asserts and exercises, through its plenary "police power," the right to determine the "use" that can be made of those specific parcels of "private property" which we still acknowledge as "private." Blackstone is saying, in effect, that the public could go far beyond that, should it wish to, and could in fact abolish the whole concept of "private" property. However deeply established in the history of our Common Law, there is no "inevitability" in the idea of private property, and this is worth keeping in mind.

I am not arguing that the abolition of private property is either necessary or appropriate, but I am clear that it is at least a possibility within the world that we create, this human world of "rights" based on paper - based, really, on what we tell ourselves we intend to do.

The book review, by Hendrik Hartog, is titled "Landlocked," and was published in the July 16/23 edition of The Nation. The book reviewed, by Stuart Banner, is called American Property: A History of How, Why, and What We Own. Quite probably, this is a book worth reading, especially for those who have neglected, for a long time, to look inside the Commentaries.

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