Canons of property talk, or, Blackstone's anxiety.

• Author: Rose, Carol M.

How do legal scholars talk about property? Here is one set of lines they are quite likely to quote:

There is nothing which 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 external things of the world, in total exclusion of the right of any other individual in the universe.(1) The author of this statement, of course, was William Blackstone, who made it early in the second volume of his weighty and influential Commentaries on the Laws of England, at the point where he turned his attention to the subject "Of the Rights of Things"--that is to say, property.(2)

Since Blackstone's time, his definition of property as exclusive dominion has been cited again and again. Even James Madison used a slightly garbled version of the famous definition (without attribution) in a short essay on property.(3) For their part, modern legal scholars refer to it often, whether they do so with approbation or disapproval.(4)

But perhaps it is the fate of canonical texts to be cited rather than read, because it seems that if property lawyers and scholars have read Blackstone, they have not read much Blackstone. If those who quote Blackstone's definition read further, they might come to think that Blackstone posed his definition more as a metaphor than as a literal description--and as a slightly anxiety-provoking metaphor at that. They might well notice too that the famous definition was only a point of departure, an occasion for a discussion that has become "canonical" in a much broader sense. That is to say, beyond the well-known opening lines, Blackstone set out a range of argumentative moves that can be recognized even today as the canonical strategies for scholarly property-talk.

Those canonical strategies of property-talk--and their ultimate relationship to the idea of property as exclusive dominion--are the subject of this Essay. By "canonical" I mean that despite some ebbs and flows, each of these strategies has enjoyed a certain constancy over time; they are also canonical in the sense that the adherents to each seem confident of the foundations of their own respective perspectives, regarding them as the more or less unproblematically proper stance for discussing property. But whereas modern scholars take sides in choosing one or another strategy, the capacious Blackstone managed to give each its due.

Hence this Essay begins with Blackstone and his treatment of property in the Commentaries, describing how he took up the various argumentative modes that now reappear in modern property scholarship. His discussion proceeded through three stages. First--a point that is very seldom noticed--immediately after those famous remarks on exclusivity, Blackstone cast into doubt the patterns of existing ownership. Next, he answered his own doubts with a utilitarian story to show the social usefulness of property. Finally, he ducked the whole messy business, diving instead into a mass of descriptive doctrine.

In our own age, Blackstone's moves have ripened into three classic strategies for modern property scholarship: the posing of doubts, the utilitarian justification, and the doctrinalist deflection, with the latter two moves answering the doubts raised by the first, just as they did for Blackstone. In discussing the more recent incarnation of these strategies in legal scholarship, I will reverse Blackstone's order to match the actual chronological pattern of modern property scholarship--doctrinalism first, followed by utilitarianism, followed by still newer doubts.

Of course, the modern echoes of Blackstone's strategies raise another question: Have modern scholars taken their strategies from Blackstone? It would be hard to say they have in any direct sense, since so few actually appear to read Blackstone on property in modern times, at least beyond the first few pages, or indeed beyond the first few lines. No doubt there remains some lingering inheritance from Blackstone's work across the generations. Perhaps the greatest part of that inheritance is simply the ringing words defining property as exclusive dominion. It may be that this very definition somehow constantly elicits similar argumentative strategies--raising worrisome doubts about existing entitlements or eliciting soothing appeals to usefulness on the one hand or to tradition on the other. Be that as it may, I will conclude by arguing that within this tripartite division of canonical strategies in legal property talk, none has sufficiently explored the metaphoric quality of Blackstone's opening definition of property as exclusive dominion, because it is as metaphor, as trope, that this idea still molds our thinking about property.

1. BLACKSTONE SETS THE STAGE

   1. Axiom and Anxiety

      When Blackstone described property as exclusive dominion, he may have had little idea of the resonance his words would have for later writers on property. Indeed, the notion of property as exclusive dominion--a notion to which I will refer as the Exclusivity Axiom--is far from self-evident, and it was even less self-evident when Blackstone wrote these lines. The axiom put aside the earlier medieval traditions in which property ownership had been hemmed in by intricate webs of military and other obligations; it ignored the family ties encapsulated in such devices as the entailed fee; and it ignored as well the general neighborly responsibilities of riparian and nuisance law. Blackstone himself was thoroughly aware of these pervasive and serious qualifications on exclusive dominion. Indeed, he discussed them at great length, particularly with respect to the feudal system and its later permutations.(5) Moreover, as at least one modern commentator has observed,(6) Blackstone asserted that the law properly recognizes claims by the destitute to some minimal assistance from those who are more prosperous.(7) This position links Blackstone to a traditional view tying property to social and political obligation--a view that clearly creates some tension with the idea of property as absolute or exclusive dominion.(8) Hence it might be best to conclude that for Blackstone, the Exclusivity Axiom was in a sense a trope, a rhetorical figure describing an extreme or ideal type rather than reality.(9)

      Taken as a trope, however, the Exclusivity Axiom is powerfully suggestive.(10) A right to exclude would not necessarily mean that property owners do exclude others; it would mean only that they can decide whether to exclude or not. This decisionmaking authority is what makes property a central libertarian value: The property owner has a small domain of complete mastery, complete self-direction, and complete protection from the whims of others. This authority is also what makes property so important in utilitarian thinking. The right to exclude means that an owner is solely responsible for the fate of her assets. Thus, whether she chooses to hold, share, or trade those assets, she has good reason to make her decisions prudently. In identifying property with the right to exclude, then, Blackstone struck a central nerve in modern discussions of property, and meditations, transmutations, and fulminations on the theme of exclusivity continue to run through modern cases and commentaries.(11)

      Perhaps the power of the trope explains the pattern in which modern scholars quote only those first few confident lines of Blackstone's observations on property.(12) But what they fail to notice are the extremely nervous sentences that follow immediately thereafter:

      And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title.(13) We do not really want to learn too much about such matters, Blackstone continues, because we do not

      car[e] to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land ... or why the occupier of a particular field or of a jewel, when lying on his deathbed and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him.(14) The hidden skeleton in property's closet is what I shall call the Ownership Anxiety--that is, anxiety over the foundations for existing distributions. Notice that this anxiety does not directly target the Exclusivity Axiom. Exclusive dominion, of course, is indeed related to distribution in a general way, because the right to exclude in itself implies that there will be some distribution of property fights. If Ann can exclude Bart (and all the world) from X, then Ann has X and Bart (and the rest of the world) does not; this is clearly a distribution of rights. Yet the principle of exclusive dominion on its face is indifferent as between Ann and Bart; Bart might have owned X instead, and Ann might have owned Y, or Z, or nothing at all. Thus, even though the Exclusivity Axiom entails some distribution, no particular distribution can be gleaned from the Exclusivity Axiom itself.

      As I shall argue later, there is more to be said on the relationship of axiom to anxiety,(15) but on the face of things, it is the axiom's very indifference toward specific distributions that triggers the Ownership Anxiety. Granting that property in general entails some set of exclusive dominions, why does Ann have exclusive dominion over X? Why does Bart not have X instead? That is the focus of the anxiety--not so much that the world of property is divided into exclusive rights, as that rights come to be distributed in one way rather than another. What justifies any particular distribution of rights? And, most importantly, do current claimants really have any solid foundation for the things they...