Ryan M. Poe
Law & Society
Jedediah Purdy
Spring 2013
History as Propriety:
Why the History of Property Matters
American legal historians in the past two decades have uncovered a whirlwind of ambiguity,
conflict, and contradiction in American property law.1 These scholars have demonstrated that
the constant refrain in legal jurisprudence of property as a technology designed to benefit the
individual has not been the unchallenged doctrinal basis of American property law or thought.
Instead, a dissonant chorus of theories contributed the tune of modern American legal culture,
apparent in the widespread ambiguity in our understandings of law. Few places is this more
obvious than in the areas of digital and intellectual property, where allusions to theft
obscure—whether intentionally or unintentionally—the complex reality behind immaterial
property.2 Future cultures of property will be informed by understandings of the past just as
present ones have been, lending urgency to critical examinations of scholars' uses of property
in legal history.
This paper will historicize the ways Americans view property in law, theory, and legal
writing in order to highlight the diversity of understandings of property in the country's past.
Questions of liberty and inequality are tightly bound up with the meaning and social role of
property. This paper will thus define each tradition and its repercussions on social equality. I
1
See, for example, Hendrik Hartog, "Pigs and Positivism," Wisconsin Law Review 1985 (1985): 899-935.
Hartog's article was not explicit about its implications on how we write about property. For more expository
works on property, see, Carol M. Rose, Property and Persuasion: Essays on the History, Theory, and
Rhetoric of Ownership (Boulder: Westview Press, 1994); Gregory Alexander, Commodity & Propriety
Competing Visions of Property in American Legal Thought, 1776-1970 (Chicago, Ill: University of Chicago
Press, 1999); Jedediah Purdy, The Meaning of Property: Freedom, Community, and the Legal Imagination
(New Haven: Yale University Press, 2010).
2 Probably the most complete overview of the development of the idea of intellectual property, its criticisms,
and key references, is Adam Moore, "Intellectual Property", The Stanford Encyclopedia of Philosophy
(2011), Edward N. Zalta, ed., <http://plato.stanford.edu/archives/sum2011/entries/intellectual-property/>.
draw from scholars seeking to do the same, but also incorporate the methodologies that legal
historians employ in their discussions of property. The way historians write about the past, I
argue, matters just as much as our theories of property. Indeed, they are linked. For each
alternative voice we silence, for each seemingly obscure tradition we ignore, the more our
present seems like the culmination of an essential past. Contingency in historical scholarship
is vital, for it signifies alternative futures just as it reminds us of the ambiguity,
incompleteness, and possibility that contributed to the present.
Ryan Poe
History as Propriety
Spring 2013
Gregory Alexander's analytical categories of theories of property serve as the
departure point for my own analysis. Property, he argues, “has signified more than one
message, more than one tradition for Americans.” He splits the property paradigm into a
spectrum with two poles: property-as-commodity on one side, and property-as-propriety on
the other. Property as commodity considers property solely as a commodity to be alienated by
individual owners and maximized for their benefit in order to be traded in markets. Property's
only functions are those related to its free exchange, and in sharply separating the private
from the pubic. Private property signifies the sovereign domain of the property owner and
absolute limit of state regulation, which is limited to regulating public property. The property
as propriety view holds that private property exists as a social contract, arising out of mutual
agreements between people, and thus the institution must serve the community before the
individual. Yet, because it arose in service to society, property as propriety was also the
material basis of the “proper” social order by mediating the relationships between people and
anchoring citizens to their proper role in the social hierarchy.3
Although both ends of the spectrum are ideal types, property as commodity, he argues,
has been (wrongly) considered the standard meaning of American property throughout its
history. Legal scholars generally bifurcate along lines of emphasis: continuity of commodity,
or heterogeneity encompassing both commodity and propriety. The former brand of historical
inquiry depicts the long history of property in service to the individual and market
commodity. These scholars are usually associated with Consensus-era historiography, Leftist
3
Alexander, Commodity & Propriety, pp. 1-4.
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critiques of law and capitalism, and, since the 1970s, economic conservatism and neoliberalism.
Consensus historiography4 influenced Wisconsin School functionalist accounts of
legal history, exemplified in the writings of James Willard Hurst and his bevy of acolytes,
such as Lawrence Friedman. To Hurst, the evolution of property law responded to changing
social needs. Law met those needs by facilitating the creation of wealth and the release of
what Hurst calls creative energies. “This it did,” he argues, “by committing to private hands
legally protected control over the bulk of economic resources.”5 Lawrence Friedman puts it
even more succinct when he argues that the dominant ideology in American land law “was
that land should be freely bought and sold.”6 Although each author reserves a fair bit of
nuance for their conclusions, the take away for each is clear: American law bolstered property
commodification for the purposes of private development. Both portrayals (particularly
Hurst's), and their intellectual offshoots, the evolutionary functionalists,7 are optimistic in
their assertion that private property ultimately serves the public benefit.
4 Consensus historiography is that brand of historical scholarship committed to finding the essential elements
of American history, politics, economics, and culture. They are usually associated with depicting moments of
conflict and contingency as aberrations, and, as in the case of Richard Hofstadter's portrayal of Populism,
demeaning radical challenges to the status quo. See, for example, Richard Hofstadter, The Age of Reform:
From Bryan to F.D.R (New York: Knopf, 1955).
5 James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison:
University of Wisconsin Press), p. 6-10. We should be careful not to caricature Hurst's argument, as he
actually tried to argue against the idea that U.S. law served only the individual at the expense of the public
historically. He was more concerned with illustrating that law developed in ways that were useful to society
to maximize creative output. “Where legal regulation and compulsion might promote the greater release of
individual or group energies,” he wrote, “we had no hesitancy in making affirmative use of law" (p. 7). It is
his lack of contingency that lands him in this part of my analysis.
6 Lawrence Friedman, A History of American Law (New York: Simon & Schuster, 1973), p. 359. We should be
even more careful about not caricaturing Friedman's text, as his aim was to write a general text book on
American law. It is complex and nuanced, and he troubles his own statement later in the same passage. For
instance, he finds that this broke down the farther West one went, and things like squatter laws became more
and more aligned against absentee ownership that flagrantly benefited private owners (p. 360).
7 Evolutionary functionalists have slightly different accounts than Hurst and Friedman. Scholars such as
Ronald Coase and George Priest argue that modern systems of private property—and the legal regimes
formed around the strict protection of individual property rights—emerged because they best served
efficiency and accumulation. Robert Ellickson's work also bears mentioning here, as he uses similar
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Leftist historians have been less optimistic. Morton J. Horwitz's The Transformation
of American Law portrays Early American law as developing away from a form of property
as propriety toward property as commodity. In just a short period of time after the
Revolution, property transformed from one that anchored one's place on the feudal social
hierarchy “into just another cash-valued commodity.” The legal regime, “once conceived of
as protective, regulative, paternalistic and, above all a paramount expression of the moral
sense of the community,” Horwitz writes, “had come to be thought of of as facilitative of
individual desires and simply reflective of the existing organization of economic and political
power.”8 Jennifer Nedelsky extends this argument, finding the roots of American liberal
individualism in the language of the Revolution and its codification in the Constitution. She
finds that the strict protection of property rights are incompatible with true democracy,
because if the poor were truly enfranchised they would have no interest in preserving
property rights.9 Many critiques of American government have originated in the idea that at
least since the Early Republic, property as commodity has been the dominant ideology in
American legal culture.10
methodologies to make the same claims about custom. Although he criticizes the idea that law was always
the most authoritative rule-making body, the implications are similar: efficiency is preserved in both custom
and law. Henry E. Smith more recently made a similar case. Ronald H. Coase, "The Problem of Social Cost,"
The Journal of Law and Economics 3, no. 1 (1960): 1-44; George L. Priest, "The Common Law Process and
the Selection of Efficient Rules," The Journal of Legal Studies 6, no. 1 (1977): 65-82; Richard A. Posner, "A
Reply to Some Recent Criticisms of the Efficiency Theory of the Common Law," Hofstra Law Review 9
(1980-1981): 775-794; Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes
(Cambridge: Harvard University Press, 1991), p. 167; Robert C. Ellickson, "Property in Land," The Yale Law
Journal 102, no. 6 (1993): 1315-1400; Henry E. Smith, "Semicommon Property Rights and Scattering in the
Open Fields," The Journal of Legal Studies 29, no. 1 (2000): 131-169.
8 Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press,
1977), pp. 48, 253.
9 Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian
Framework and Its Legacy (Chicago: University of Chicago Press, 1990).
10 Similarly, Charles Sellers concludes, perhaps melodramatically, that the triumph of individualist, bourgeois
liberalism set the stage for a two party system whose parties competed to see who could best blur the
inherent contradiction between capitalism and democracy. Similarly, Gordon Wood dates the death of this
idea to the American Revolution. Gordon Wood, The Radicalism of the American Revolution (New York:
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The negative implications of this portrayal of property in American history outweigh
its benefits. Depicting the past as merely the teleological roots of the present may give us
comfortable straw men to tear apart, but it can be just as politically paralyzing to reformers as
it is empowering to social critics. If the root problems of the present have gone unchallenged
for so long, what chance do sincere activists have of altering the status quo? Moreover,
depicting the past solely as some sort of proving ground for modern ideas, as evolutionary
functionalists did, threatens to render overthrown notions and defeated movements as
necessarily incompatible with progress. These positions cede the power of tradition to the
forces of conservatism, many of whom would use that power to push their vision of the
future. As Justice Antonin Scalia demonstrated in Lucas v. South Carolina Coastal
Commission (1992), even in the halls of the Supreme Court, judges render verdicts based on
this presumption of history. The result is new forms of maintaining the status quo based on
the unsound notion that consensus and status quo are one and the same.11
The most vulgar assumptions about the virtues of private property as commodity
emerge from neo-liberal accounts of property rights that have, in the last decade, been
formative of many detrimental social policies. Peruvian businessman Fernando DE Soto
defends property rights from two ideological standpoints. First, the degradation of natural
resources is inevitable, he argues, without individual security in rights to improve and freely
A.A. Knopf, 1992), pp. 269; Charles Sellers, The Market Revolution: Jacksonian America, 1815-1846 (New
York: Oxford University Press, 1991), pp. 362-363.
11 Scalia was apparently aware of his dubious portrayal of U.S. history when pushed by Justice Blackmun. In
footnote 15 of the majority opinion, he argues that any alternative view of history than the one her provided
is “entirely irrelevant” because early takings without compensation “were out of accord with any plausible
interpretation” of more recent provisions. Historical interpretation is also discussed in footnote 26 of
Blackmun's dissent. At stake in the ruling was a vision property whereby individuals owned property (in the
majority opinion) against a vision in which individuals merely rented it, or leased it from the state (in
Blackmun's dissent). Both sides use history differently, but Blackmun, it bears mentioning, cites a number of
legal historians. Scalia does not. Lucas v. South Carolina Coastal Commission, 505 U.S. 1003, 1992. See
also, Alexander, Commodity & Propriety, p. 7.
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transfer property as a market commodity. The former assumption—that investment does not
occur without property rights—affords powerful government in protecting property rights but
its weakness in regulating property in order to ensure that owners are free to maximize their
individual wealth without fear of takings, distribution, or outside interference. The second
ideological standpoint—also known as the tragedy of the commons—nakedly asserts that in
the absence of secure property rights, the commons (unowned natural resources) is depleted
by every group's innate urge to accumulate. Thus, the only solution to maximizing wealth and
preserving the commons in society is through secure property rights, low transaction costs,
and weak regulation.12
The attractiveness of these linked, widely denounced ideological positions has
nevertheless led to the implementation of destructive policy initiatives the world over. Garrett
Hardin's so-called tragedy of the commons13 is an ideological thought experiment based on
the idea that without private property, people treat the world as their personal toilet and
limitless piggy bank, leading inevitably to environmental ruin. An extension of classical
liberal notions that private property and human development were linked,14 historians have
uncovered evidential problems with his interpretations: societies and people without secure
property rights do form systems for managing resources, improving the land, and ensuring
12 Hernando de Soto, The Other Path: The Invisible Revolution in the Third World (New York: Harper & Row,
1989). De Soto elaborated on his idea in, The Mystery of Capital: Why Capitalism Triumphs in the West and
Fails Everywhere Else (New York: Basic Books, 2000).
13 Garrett Hardin, "The Tragedy of the Commons," Science 162 (December 13, 1968): 1243-1248.
14 This, for example, is indicative of David Hume's theory of property, which he sees as arising out of the
civilization of man by forming bonds of mutual agreement, which lead to society. Through agreements to
create secure institutions of property, Hume argues that our natural, inner drive to plunder ensures social
stability and the maximization of wealth in the long term. David Hume, A Treatise of Human Nature: Being
an Attempt to Introduce the Experimental Method of Reasoning into Moral Subject (1739), Book 3, Part 2,
Section 2, “Of the Origin and Justice of Property.” For more on what scholars have called “four stages
theory,” see Alexander, Commodity & Propriety, pp. 60-71, but particularly pp. 61-62; Jedediah Purdy, The
Meaning of Property: Freedom, Community, and the Legal Imagination (New Haven: Yale University Press,
2010), pp. 38-40.
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equitable use without law designating liberal theories of property ownership. The tragedy of
the commons, then, is not one of binary rights to ownership of the commons, but is instead
one of government and regulation.15 Despite its flaws, Hardin's idea remained popular due in
part to its ideological attractiveness to neo-liberal thinkers like de Soto. His libertarian
solutions to South American poverty made their way into World Bank policy in the 1970s.
These initiatives, argue Jeremy Seabrook and Mike Davis, privileged those with the clearest
titles to property, resulting in isolated local success stories punctuating a larger climate of
neglect. “By demonstrating the ability, the courage, and the capacity for self-help of slum
people,” argues Seabrook, neo-liberal poverty policy paved the way for “a withdrawal of state
and local government intervention and support” for the impoverished.16
Furthermore, feminist scholars have demonstrated that in the rush to protect property
owners and divide the private from the public, liberal individual theories and
implementations of property law buttressed male power at the expense of women and other
dependents. Although individual rights may have promised a break from feudal hierarchies,
Carole Pateman argues that their rise in popularity in the eighteenth and nineteenth centuries
owes to their ability to justify male power, not their promise to unleash individualist
egalitarianism in the United States. In liberal property regimes, individualism emerges from
15 Perhaps the most comprehensive compilation of arguments against Hardin's thought experiment is George N.
Appell, “Hardin's Myth of the Commons: The Tragedy of Conceptual Confusions,” Indiana University
Working Paper, 1993, <http://hdl.handle.net/10535/4532> (accessed March 19, 2013). See also, Ellickson,
“Property in Land,” pp. 1320. It should be noted that Hardin did not seem to advocate blanket privatization
himself. He merely argued that unowned land was destined to either fall into disrepair or be picked clean by
wanton foragers. To him, the solution was the elimination of the commons, resulting from full socialization,
full privatization, or some mix thereof. However, many of those influenced him took his meaning to be,
simply, that a neo-Malthussian crisis loomed that only full privatization can solve.
16 Jeremy Seabrook, In the Cities of the South: Scenes from a Developing World (New York: Verso, 1996), pp.
196-197; quoted in Mike Davis, Planet of Slums (Verso, 2006), p. 72. Mike Davis is extremely critical of
neo-liberal policies, and especially Hernando de Soto, whom he describes as “the Messiah of people's
capitalism” (p. 80). Neo-liberal property rights as solutions to poverty—and thus beneficial for public
good—are popular, Davis maintains, because they offer the continuation of the status quo, the perpetuation
of anti-statist economic policy, and general political placidity with the promise to end world poverty at the
stroke of a pen.
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property ownership in one's self, which forms the basis of negotiating contracts with others
on an equal basis. Since every individual is supposedly free to contract their property in
person, anyone surrendering their natural independence must do so either by their own free
will or by some innate inferiority. Women, born into webs of dependence to their fathers,
brothers, and husbands, have property in their person, but they can never master their own
bodies. Moreover, male control of dependents' property in person affords men power in
public, political spaces—spaces that are defined in opposition to private, apolitical, feminine
spaces.17 As scholars of the U.S. South have shown, this was compounded in systems of
racial slavery in which the enslaved could not legally own property, leading to the subjection
of not only women, but of African and Native Americans, as well.18 Patriarchy and racial
patriarchy, not egalitarianism, inhabits the core of liberal individual conceptions of property. 19
Feminist accounts of property as commodity undermine sharp distinctions between
commodist and proprietist theories of property, and renders dubious the assertion from
17 Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988), ch. 3, especially pp. 3940. See also, Elizabeth Fox-Genovese, "Property and Patriarchy in Classical Bourgeois Political Theory,"
Radical History Review 1977, no. 14-15 (1977): 36-59.
18 Stephanie McCurry situates property firmly within the southern racial patriarchy at the opening of Masters
of Small Worlds, pp. 5-7. See also, Laura Edwards, The People and their Peace: Legal Culture and the
Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina
Press, 2009), pp. 157-162, 249-250; Elizabeth Fox-Genovese, Within the Plantation Household: Black and
White Women of the Old South (Chapel Hill: University of North Carolina Press, 1988); Victoria E. Bynum,
Unruly Women: The Politics of Social and Sexual Control in the Old South (Chapel Hill: University of North
Carolina Press, 1992), ch. 3; Alexander, Commodity & Propriety, p. 5, ch. 6. Cheryl Harris makes the case
that property and whiteness became bound up in American law so that whiteness became empowered and
protected as a property right (to exclude) at the explicit expense of African and Native Americans. Cheryl I.
Harris, "Whiteness as Property," Harvard Law Review 106, no. 8 (1993): 1707-1791. See also, Elizabeth V.
Mensch, "The Colonial Origins of Liberal Property Rights," Buffalo Law Review 31, no. 3 (1982): 635.
19 This is not to say that if only this historical bias against women or minorities were magically alleviated that
law formed on the basis of property as commodity or its political forebear, liberal individualism, would
portend an egalitarian utopia. Feminist scholars argue against these ideas because of how they disguise these
intrinsic biases in order to justify a political placidity that preserves inequality in the name of limiting
government expansion and protecting property rights (and thus, saving liberty from equality). Indeed, as
scholars such as Norma Basch has found, the establishment of married women's property rights did not
significantly alter the power dynamics between men and women. See Norma Basch, In the Eyes of the Law:
Women, Marriage, and Property in Nineteenth-Century New York (Ithaca: Cornell University Press, 1982), p.
38. Basch is quoted alongside a wealth of research on gender and married women's property acts in
Alexander, Commodity & Propriety, p. 422. fn. 1.
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classically liberal thinkers who assert that their vision of property either facilitates greater
egalitarianism, or is at least agnostic to the type of society it produces. As other scholars have
found, all systems of property establish a particular social order. Proprietist thinkers and their
biographers, however, make fewer evasions about the role of property in society. The debate,
then, is over what kind of society is desired, not over whether or not such a goal is moral or
achievable. Many even draw from the same historical sources used by commodists to
underscore the complexity of Enlightenment thinkers in their theories of property. For
example, influential theorists like William Blackstone and David Hume understood property
as arising out of unspoken social agreements between people to surrender short-term self
interest to benefit the long-term good of the community: surrender the ability to steal a
neighbor's land now, and both parties have security of possession in the long run, after
significant personal investment and improvement. According to such theories, property only
exists as an institution to order society, usually in such a way as to maximize mutual
benefit.20
There are two broad, largely compatible approaches for examining how property is
constitutive of a particular social order. The first—chiefly by intellectual historians—is by
examining legal doctrine, popular thought, and important social theorists. Critical legal
scholars fit into this line of inquiry when they discuss property by problematizing its doctrinal
consistency and its contradictory legacies.21 By “destabilizing tradition,” rather than depicting
20 Purdy, The Meaning of Property, pp. 2-3; Carol M. Rose, "Canons of Property Talk, or, Blackstone's
Anxiety," Yale Law Journal 1998-1999, no. 108 (1998), pp. 613-623; Hume, A Treatise of Human Nature,
Book 3, Part 2, Section 2.
21 I follow Carol Rose's logic here in discussing Critical legal interpretations of property. Actually, Rose
describes three ways to discuss property in her essay. The first two, however, doctrinalist and evolutionary
functionalist (which she labels utilitarian), describe the path to the present in different ways. They tend to be,
in Gregory Alexander's terminology, commodist. Doctrinalists tend to be commodist because they examine
the minutiae of court rulings that make up the basis of modern property law. Evolutionary functionalists tend
toward property as commodity because they examine how law evolved to its most efficient forms, usually
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legal doctrine as a logically consistent body of axioms, Critical scholars peel away the layers
of contradiction and contestation that make up the stable veneer of American legal culture.
Scholars such as Carole Pateman and historians of women and gender have uncovered the
social order that individualist theories of property implicitly created.22 Others have uncovered
recurrent traditions of what J.G.A. Pocock called civic republicanism running through
American culture and politics. Civic republicanism posited that property was necessary for
autonomy, which itself was required to become a virtuous, contributing member of a
particular social order.23 Scholars in this tradition, such as Gregory Alexander, find such
thought persisting in American political philosophy up to the present.24
The second way scholars approach property as social order is by finding historical
evidence of its continuation in the day-to-day lives of their subjects. Legal pluralists, in
particular, examine the interrelation between law and custom, challenging the supremacy of
law to order society and demonstrating the legal contributions of people considered outside
the annals of power.25 Property—whether in law, in custom, or played out in everyday
22
23
24
25
taking for granted that people solve disputes and form laws or customs on the basis of maximizing economic
benefits and minimizing conflict. Doctrinalist conservatism is implicit, stemming from, Rose jokes, their
lengthy intellectual investment in esoteric matters of legal doctrine. Evolutionary functionalists, assuming
that people necessarily work toward efficiency and the maximization of wealth, necessarily associate time
with progress. Carol M. Rose, "Canons of Property Talk, or, Blackstone's Anxiety," Yale Law Journal 19981999, no. 108 (1998), pp. 613-623.
See above, p. 8, fn. 17.
The full quotation, in Alexander, Commodity & Propriety, includes an overt attack on the idea that property
exists only for trade and wealth maximization. The civic republican did not own property, Pocock wrote, “in
order to engage in trade, exchange or profit; indeed, these activities were hardly compatible with the activity
of citizenship.” See Alexander, Commodity & Propriety, p. 30-31; J.G.A. Pocock, “The Mobility of Property
and the Rise of Eighteenth-Century Sociology,” in Virtue, Commerce, and History (Cambridge: Cambridge
University Press), ch. 6.
Alexander, Commodity & Propriety, pp. 4-7, 12-14, & ch. 1. See also, J. G. A. Pocock, The Machiavellian
Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton
University Press, 1975), ch. 15; Michael J. Sandel, Democracy's Discontent: America in Search of a
Political Philosophy (Cambridge: The Belknap Press of Harvard University Press, 1996).
There are several ways to approach even this goal. For examples of this, and broader discussions of pluralist
legal history methodology, see, Hendrik Hartog, William Forbath and Martha Minnow, "Introduction: Legal
Histories from Below," Wisconsin Law Review 1985 (1985): 759-766; Ellickson, Order Without Law (as an
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narratives—meant different things to different people, so that its very definition (in law and
in culture) became an arena for negotiating social order. In Dylan Penningroth's Claims of
Kinfolk, the meaning of property for African Americans encompassed far more than their
legal categories implied. For the enslaved, dense networks of people made claims to property
based on the communal labor required to produce it, making property the material basis of
kinship and community support networks. This vision of property ownership was not, as
previous scholars argued, some amalgam of the slave experience and white culture gleaned
through proximity, or arising as a mere shelter from subjugation.26 It instead involved
complex lineages of African, Anglo, and distinctly American cultural elements that emerged
during—but not solely in response to the conditions under—slavery. Property invested
meaning in social networks, which themselves exerted much influence on property, making
property at once acquisitive and an investment in social ties. These informal patterns of
property-making clashed with the dynamism of post-emancipation legal change, leading to
contradictory, messy legal structures and property arrangements in the South.27
Historical reality, of course, rarely allows for easy categorical associations between
custom and propriety, law and commodity, as a simple reading of Penningroth's analysis
might conclude. For example, Hendrik Hartog's famous article, “Pigs and Positivism,” put
two conceptions of property in stark relief in his account over conflicts pertaining to pig
ranging in the streets of early New York. To bourgeois urban reformers and their legal allies,
example of econometric pluralism); Brian Z. Tamanaha, "A Non-Essentialist Version of Legal Pluralism,"
Journal of Law and Society 27, no. 2 (2000): 296-321.
26 Indeed, Penningroth is quick to dispel this reading of black culture as overly simplistic because it relies
entirely on their relationship to white people. This tends to obscure or romanticize the experiences of black
people, he argues, “whose understanding of economic and social life involved far more than their relations
with white people.” Dylan Penningroth, The Claims of Kinfolk: African American Property and Community
in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2003), p. 8
27 Penningroth, The Claims of Kinfolk.
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revoking the right to range pigs in the city was their way of imposing what they considered a
cleaner, less chaotic order in the city's streets. To them and the legal order they pursued, the
property rights of pig keepers were less important than the disservice their practice was doing
to the public. Yet, despite making the practice illegal, it remained pervasive until 1847,
because, Hartog argues, pig keepers collectively asserted their traditional right to keep pigs. 28
Commodity and propriety, legal pluralists have found, are not categorical binaries, but can
exist at once—even in outright contradiction.29
Indeed, as the above case indicates, scholars must avoid idealizing proprietist
conceptions of property, lest we forget that definitions of a proper social order may not be as
egalitarian as we hope. Although many scholars have argued that property in service to the
public and not the individual holds promise—especially for issues involving long-term
problems such as climate change30—others have found that propriety did not always serve the
community equally. Laura Edwards argues that in Early American local law, “property claims
elevated the maintenance of the peace over individual rights and made local knowledge
central to the legal process.” On the one hand, this opened significant room for those without
clearly-defined property rights to own property and challenge patriarchal authority. On the
other hand, particularly in the antebellum U.S., “free men regularly and aggressively asserted
their authority with violence that reduced their wives, children, and slaves to property,”
because patriarchal authority even in localized law relied on male rights over the bodies of
28 Hartog, “Pigs and Positivism.”
29 Gregory Alexander's book is one long exegesis on this idea, considering commodity and propriety existing
as poles on which theories of property lay. Few theorists inhabit the extreme ends of either pole, and most
borrow elements from both sides in their definitions of property and its functions. Alexander, Commodity &
Propriety.
30 Purdy, The Meaning of Property, ch. 7.
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their dependents.31 When property is an institution designed to maximize public good—or, in
Edwards' analysis, to facilitate “the peace”—the definition of the categories “public” and
“good” define the shape of society.
As my analysis indicates, the clear distinction between property as commodity and
property as propriety do not fully capture the nuance of the past. Commodist property
regimes order society in a particular way despite claims to the contrary; and proprietist
property regimes are no panacea, especially in an unequal society. The binary, however,
persists in much scholarship and in theoretical accounts of property, leading to the same
dichotomies becoming both historiographical and political crises generation after generation.
Tacking too close to either side of the conceptual spectrum like neo-liberal scholars32 or
radical leftists33 leaves one's ideas and policy directives subject to countenancing neglect and
conservatism, or being crudely compared to Mao, Stalin, and Pol Pot.34 Carol Rose, an
influential scholar of property, addresses the faux tension by ceding certain points of viability
to each side of the extreme, striving for something in the middle. In surrendering such
ground, however, Rose accepted some of the more dubious commodist axioms about the
31 Edwards' focus in her chapter on property is the room that “the peace” gave to women, the enslaved,
children, the poor, and employees in making demands on their legal superiors who, in the annals of state law,
had inalienable sovereign power over them. Her overall argument is that localized law ordered society in
ways much more complex than for pure subjugation of dependents. But the peace was also no panacea.
“[W]hite patriarchs exercised domestic authority at the behest of the peace, not in their own right.” Edwards,
The People and their Peace, ch. 5, quotations on pp. 7, 134, 162.
32 See, e.g., Friedrich A. von Hayek, Law, Legislation, and Liberty: A New Statement of the Liberal Principles
of Justice and Political Economy (Chicago: University of Chicago Press, 1973-1979); Hernando de Soto.
The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic
Books, 2000).
33 See, e.g., Pierre-Joseph Proudhon, What is Property? An Inquiry into the Principle of Right and of
Government Edited by Kelley, Donald R. and Bonnie G. Smith. (New York: Cambridge University Press,
1994, c. 1840).
34 For neo-liberals accused—rightly, I think—of neglect, see p. 7 and fn. 16. For communal visions of property
compared—unfairly, I think—to the horrors of twentieth-century totalitarian communism, see Ellickson,
“Property in Land,” pp. 1317-1318.
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History as Propriety
Spring 2013
benefits of private property, namely that “we live in an imperfect world of limited
resources.”35
Lingering perceptions of binary property regimes are behind a number of American
political crises. There are many routes to alleviating the pressure of the perception, but
historians, particularly legal historians are uniquely poised to inform the dialogue. They
demonstrate that Rose's answer to the conundrum cedes too much ground. Ideal types and
false dilemmas do not deserve concessions. At no point in American history and in very few
theorist's imaginations did an extreme version of property as commodity reign in totality. And
as other scholars are correct to point out, property as commodity (flowing from liberal
individualism) orders society, as well, but relegates such talk to market solutions and moral
agnosticism. History's ace in the hole is its ability to remind us of these facts. Moreover, by
fairly portraying proprietist contributions to American law, the present looks much less
complete, the future far less certain. Ambiguity not only in property law, but in all law gives
modern Americans room for critical redefinition of important legal categories, and such
redefinition often serves as the basis for broader overthrow of existing structures;36 structures
certain thinkers assert as moral, inevitable, or complete. Such assertions about the historical
primacy of commodist property in American history and government are exposed as wishful
35 This idea originated in Jedediah Purdy's tribute to Rose, where he cites Rose's own words on the matter.
Jedediah Purdy, “A Foxy Hedgehog: The Consistent Perceptions of Carol Rose,” William & Mary Bill of
Rights Journal 19 (2011), pp. 1033-1034. The specific work of Rose's he cites is a book review. Carol M.
Rose, Environmental Faust Succumbs to the Temptations of Economic Mephistopheles, or, Value by Any
Other Name is Preference Michigan Law Review 87 (1989), p. 1646. Purdy was hard pressed, however, to
reduce Rose's complex, evolving thought into any single set of assumptions.
It is outside the bounds of this paper to judge whether or not Rose's statement is plausible, but one
wonders. Few would argue with her first assertion that society is imperfect, but to what extent resources are
limited in a practical sense for the average person is more questionable. After all, it does not take much to
provide for the basic necessities of human need by almost any standard. Perhaps, for neo-liberals, the
perception of scarcity drives their convictions toward ideological extremes?
36 This is the basis of Eduardo Moisés Peñalver and Sonia K. Katyal, Property Outlaws: How Squatters,
Pirates, and Protesters Improve the Law of Ownership (New Haven: Yale University Press, 2010).
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History as Propriety
Spring 2013
thinking (or, as is the case, creative forgetting) and whose role in American history or to
undergird a social order is purposely exaggerated. Armed with contingency, historians can
help reframe the discussion away from the purely ideological proprietist/commodist
dichotomy to one of what constitutes a desirable social order, and how our laws of property
can help achieve that order.
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