In America, we are eager to claim ownership: our homes, our ideas, our organs, even our own celebrity. But beneath our nation’s proprietary longing looms a troublesome question: what does it mean to own something? More simply: what is property?
The question is at the heart of many contemporary controversies, including disputes over who owns everything from genetic material to indigenous culture to music and film on the Internet. To decide if and when genes or culture or digits are a kind of property that can be possessed, we must grapple with the nature of property itself. How does it originate? What purposes does it serve? Is it a natural right or one created by law?
Accessible and mercifully free of legal jargon, American Property reveals the perpetual challenge of answering these questions, as new forms of property have emerged in response to technological and cultural change, and as ideas about the appropriate scope of government regulation have shifted. This first comprehensive history of property in the United States is a masterly guided tour through a contested human institution that touches all aspects of our lives and desires.
Stuart Banner shows that property exists to serve a broad set of purposes, constantly in flux, that render the idea of property itself inconstant. Despite our ideals of ownership, property has always been a means toward other ends. What property signifies and what property is, we come to see, has consistently changed to match the world we want to acquire.
Contributors. Jane Atkinson, Don Brenneis, Stephanie Fried, Nancy Peluso, Marina Roseman, Anna Tsing, Charles Zerner
Following a vast expansion in the twentieth century, government is beginning to creak at the joints under its enormous weight. The signs are clear: a bloated civil service, low approval ratings for Congress and the President, increasing federal-state conflict, rampant distrust of politicians and government officials, record state deficits, and major unrest among public employees.
In this compact, clearly written book, the noted legal scholar Richard Epstein advocates a much smaller federal government, arguing that our over-regulated state allows too much discretion on the part of regulators, which results in arbitrary, unfair decisions, rent-seeking, and other abuses. Epstein bases his classical liberalism on the twin pillars of the rule of law and of private contracts and property rights—an overarching structure that allows private property to keep its form regardless of changes in population, tastes, technology, and wealth. This structure also makes possible a restrained public administration to implement limited objectives. Government continues to play a key role as night-watchman, but with the added flexibility in revenues and expenditures to attend to national defense and infrastructure formation.
Although no legal system can eliminate the need for discretion in the management of both private and public affairs, predictable laws can cabin the zone of discretion and permit arbitrary decisions to be challenged. Joining a set of strong property rights with sound but limited public administration could strengthen the rule of law, with its virtues of neutrality, generality, clarity, consistency, and forward-lookingness, and reverse the contempt and cynicism that have overcome us.
Excavating Marx’s early writings to rethink the rights of the poor and the idea of the commons in an era of unprecedented privatization
The politics of dispossession are everywhere. Troubling developments in intellectual property, genomics, and biotechnology are undermining established concepts of property, while land appropriation and ecological crises reconfigure basic institutions of ownership. In The Dispossessed, Daniel Bensaïd examines Karl Marx’s early writings to establish a new framework for addressing the rights of the poor, the idea of the commons, and private property as a social institution.
In his series of articles from 1842–43 about Rhineland parliamentary debates over the privatization of public lands and criminalization of poverty under the rubric of the “theft of wood,” Marx identified broader anxieties about customary law, property rights, and capitalist efforts to privatize the commons. Bensaïd studies these writings to interrogate how dispossession continues to function today as a key modality of power. Brilliantly tacking between past and present, The Dispossessed discloses continuity and rupture in our relationships to property and, through that, to one another.
In addition to Bensaïd’s prescient work of political philosophy, The Dispossessed includes new translations of Marx’s original “theft of wood” articles and an introductory essay by Robert Nichols that lucidly contextualizes the essays.
A bold account of property reform during the French Revolution, arguing that the lofty democratic ideals enshrined by revolutionary leaders were rarely secured in practice—with lasting consequences.
Property reform was at the heart of the French Revolution. As lawmakers proclaimed at the time, and as historians have long echoed, the Revolution created modern property rights. Under the new regime, property was redefined as an individual right to which all citizens were entitled. Yet as the state seized assets and prepared them for sale, administrators quickly found that realizing the dream of democratic property rights was far more complicated than simply rewriting laws.
H. B. Callaway sifts through records on Parisian émigrés who fled the country during the Revolution, leaving behind property that the state tried to confiscate. Immediately, officials faced difficult questions about what constituted property, how to prove ownership, and how to navigate the complexities of credit arrangements and family lineage. Mothers fought to protect the inheritances of their children, tenants angled to avoid rent payments, and creditors sought their dues. In attempting to execute policy, administrators regularly exercised their own judgment on the validity of claims. Their records reveal far more continuity between the Old Regime and revolutionary practices than the law proclaimed. Property ownership continued to depend on webs of connections beyond the citizen-state relationship, reinforced by customary law and inheritance traditions. The resulting property system was a product of contingent, on-the-ground negotiations as much as revolutionary law.
The House in the Rue Saint-Fiacre takes stock of the contradictions on which modern property rights were founded. As Callaway shows, the property confiscations of Parisian émigrés are a powerful, clarifying lens on the idea of ownership even as it exists today.
The emergence of New Institutional Economics toward the end of the twentieth century profoundly changed our ideas about the organization of economic systems and their social and political foundations. Imperfect Institutions explores recent developments in this field and pushes the discussion forward by allowing for incomplete knowledge of social systems and unexpected system dynamics and, above all, by focusing explicitly on institutional policy. Empirical studies extending from Africa to Iceland are cited in support of the theoretical argument.
In Imperfect Institutions Thráinn Eggertsson extends his attempt to integrate and develop the new field that began with his acclaimed Economic Behavior and Institutions (1990), which has been translated into six languages. This latest work analyzes why institutions that create relative economic backwardness emerge and persist and considers the possibilities and limits of institutional reform.
Thráinn Eggertsson is Professor of Economics at the University of Iceland and Global Distinguished Professor of Politics at New York University. Previously published works include Economic Behavior and Institutions (1990) and Empirical Studies in Institutional Change with Lee Alston and Douglass North (1996).
Is private ownership an inviolate right that individuals can wield as they see fit? Or is it better understood in more collective terms, as an institution that communities reshape over time to promote evolving goals? What should it mean to be a private landowner in an age of sprawling growth and declining biological diversity?
These provocative questions lie at the heart of this perceptive and wide-ranging new book by legal scholar and conservationist Eric Freyfogle. Bringing together insights from history, law, philosophy, and ecology, Freyfogle undertakes a fascinating inquiry into the ownership of nature, leading us behind publicized and contentious disputes over open-space regulation, wetlands protection, and wildlife habitat to reveal the foundations of and changing ideas about private ownership in America.
Drawing upon ideas from Thomas Jefferson, Henry George, and Aldo Leopold and interweaving engaging accounts of actual disputes over land-use issues, Freyfogle develops a powerful vision of what private ownership in America could mean—an ownership system, fair to owners and taxpayers alike, that fosters healthy land and healthy economies.
The countries of Central America, afflicted for many years by civil strife and economic stagnation, are entering a new era of peace, democracy, and economic development. Now, more than ever, it is necessary for reforms in the legal system to successfully support these changes.
This volume examines two fields of law in which reforms are especially crucial: the improvement of the judicial systems and other mechanisms for resolving noncriminal disputes, and modernization of the laws governing both tangible and "intellectual" property. Among the specific topics addressed in the volume are the debate over "oralidad;" the problem of interlocutory appeals; nonjudicial procedures for resolving disputes (negotiation, mediation, conciliation, and arbitration); land and trademark registration systems; land reform in Nicaragua; the management of genetic resources; online legal databases; and legal education.
Our whole nation benefits from the preservation of natural habitats and their diversity of animal and plant species—yet small groups of private landowners often bear most of the costs of setting land aside for conservation purposes. This imbalance has generated many conflicts since the passage of the Endangered Species Act in 1973 and remains one of the most controversial issues to be resolved as the ESA makes its way through Congress for reauthorization.
To provide policy makers, landowners, and other stakeholders in the ESA debates with impartial baseline information, this book offers multidisciplinary perspectives on the role that private property plays in protecting endangered species in the United States. The opening chapter traces the evolution of the ESA and set forth the parameters of the debate over regulation of private property. Four subsequent chapters explore the judicial and economic implications of ESA and suggest how issues of scale and diversity affect the implementation of the ESA on private property. The volume concludes with eight principles to help frame the ongoing ESA reauthorization debate, developed by the University of Wyoming's Institute for Environment and Natural Resources Policy Board, the sponsor of the research presented in this book.
Law and economics is the leading intellectual movement in law today. This book examines the first great law and economics movement in the early part of the twentieth century through the work of one of its most original thinkers, Robert Hale. Beginning in the 1890s and continuing through the 1930s, progressive academics in law and economics mounted parallel assaults on free-market economic principles. They showed first that "private," unregulated economic relations were in fact determined by a state-imposed regime of property and contract rights. Second, they showed that the particular regime of rights that existed at that time was hard to square with any common-sense notions of social justice.
Today, Hale is best known among contemporary legal academics and philosophers for his groundbreaking writings on coercion and consent in market relations. The bulk of his writing, however, consisted of a critique of natural property rights. Taken together, these writings on coercion and property rights offer one of the most profound and elaborated critiques of libertarianism, far outshining the better-known efforts of Richard Ely and John R. Commons. In his writings on public utility regulation, Hale also made important contributions to a theory of just, market-based distribution.
This first, full-length study of Hale's work should be of interest to legal, economic, and intellectual historians.
Property and Values offers a fresh look at property rights issues, bringing together scholars, attorneys, government officials, community development practitioners, and environmental advocates to consider new and more socially equitable forms of ownership. Based on a Harvard Law School conference organized by the Equity Trust, Inc., in cooperation with the American Bar Association's Commission on Homelessness and Poverty, the book:
Property and Values is a thought-provoking contribution to the literature on property for planners, lawyers, government officials, resource economists, environmental managers, and social scientists as well as for students of planning, environmental law, geography, or public policy.
Are rent controls and zoning regulations unconstitutional? Should the Supreme Court strike down the Endangered Species Act when its administration interferes with the use of private property? These questions are currently debated under the doctrine of regulatory takings, and William Fischel’s book offers a new perspective on the issue.
Regulatory Takings argues that the issue is not so much about the details of property law as it is about the fairness of politics. The book employs jurisprudential theories, economic analysis, historical investigation, and political science to show why local land use regulations, such as zoning and rent control, deserve a higher degree of judicial scrutiny than national regulations. Unlike other books on this topic, Regulatory Takings goes beyond case law to buttress its arguments. Its reality checks range from reviews of statistical evidence to local inquiries about famous takings cases such as Pennsylvania Coal v. Mahon and Lucas v. South Carolina Coastal Commission. The gap between legal theory and on-the-ground practice is one reason that Fischel investigates alternative means of protecting property rights.
Local governments are often deterred from unfairly regulating portable assets by their owners’ threat of “exit” from the jurisdiction. State and federal government regulations are disciplined by property-owner coalitions whose “voice” is clearly audible in the statehouses and in Congress.
Constitutional courts need to preserve their resources for use in areas in which politics is loaded against the property owner. Regulatory Takings advances an economic standard to decide when a local regulation crosses the border from legitimate police power to a taking that requires just compensation for owners who are adversely affected.
Property rights are a tool humans use in regulating their use of natural resources. Understanding how rights to resources are assigned and how they are controlled is critical to designing and implementing effective strategies for environmental management and conservation.
Rights to Nature is a nontechnical, interdisciplinary introduction to the systems of rights, rules, and responsibilities that guide and control human use of the environment. Following a brief overview of the relationship between property rights and the natural environment, chapters consider:
This book explores the relationship between women and property in the Greek lands and their broader social position in the century that culminated with the establishment of the national Greek state (1750–1850). Evdoxios Doxiadis focuses on the status and rights of Greek women in the later Ottoman period, the decade-long Greek War of Independence, and the first decades of the Greek state, seeking to reveal the impact that the pursuit of modernization by the early Greek governments had on women. Through the systematic examination of numerous legal documents in notarial archives from four distinct regions (Naxos, Mykonos, Athens, and Leonidio), the position of women in Greek societies of the period is illuminated in all its complexity and regional diversity. Special emphasis is placed on women’s ability in some areas to defend their property rights and be active economic agents.
Although the Greek revolutionaries and the Greek state did not curtail the rights of women with respect to property, the very institutions that were fundamental in the creation of the Greek state transformed the established relationship between women and property. Doxiadis shows that modernization proved to be an oppressive force for Greek women—though in a much more clandestine fashion than perhaps expected in other European states.
If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance.
Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four questions: What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind?
Zoning, rent control, progressive and special taxes, workers’ compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein’s theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.
Land ownership by individual citizens is a cornerstone of American heritage and a centerpiece of the American dream. Thomas Jefferson called it the key to our success as a democracy. Yet the question of who owns America not only remains unanswered but is central to a fundamental conflict that can pit private property rights advocates against government policymakers and environmentalists.
Land use authority Harvey M. Jacobs has gathered a provocative collection of perspectives from eighteen contributors in the fields of law, history, anthropology, economics, sociology, forestry, and environmental studies. Who Owns America? begins with the popular view of land ownership as seen though the television show Bonanza! It examines public regulation of private land; public land management; the roles culture and ethnic values play in land use; and concludes with Jacobs’ title essay.
Who Owns America? is a powerful and illuminating exploration of the very terrain that makes us Americans. Its broad set of theoretical and historical perspectives will fascinate historians, environmental activists, policy makers, and all who care deeply about the land we share.
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