Stuart Banner

 

On his book American Property: A History of How, Why, and What We Own

Cover Interview of June 06, 2011

The wide angle

Property is both a technical legal subject and an important part of everyday life.  So I have tried to write an account that does justice to both without losing either specialists or general readers.

The book avoids getting bogged down in the technical detail that so often dominates discussions of the history of property, especially those written by lawyers.  But I have explain that detail when it is important to understand the big picture.

The history of property has not received as much attention as it deserves.  I think that’s because historians have been put off by what seems to be legal complexity, while lawyers tend to be interested in the past primarily as a repository of facts useful in making normative arguments.

As a result, much of what we think we know about the history of property turns out not to be true.

For example, the conventional story about the development of property is one of a long run transition from tangible to intangible forms of property.

The idea is that the important kinds of property two or three hundred years ago were physical things like land and livestock, while the important kinds today are non-physical things like patents and copyrights, shares of corporations, and so on.  And, furthermore, that this transition from the tangible to the intangible required people to start thinking very differently about property.

I show in the book that there were plenty of non-physical forms of property in the past.  Some of those no longer exist—property in public office, and property in the labor of others.

Lawyers of the eighteenth century could not have known of the array of intangible property rights the future would bring.  But they were not in the grip of any physical conception of property, because they were familiar with a different set of intangible property rights.

The real transition would not be from physical to non-physical property, but rather from one group of non-physical property rights to another.

Another example involves the conception of property as a “bundle of rights.”

Lawyers usually think of property as a collection of rights to do various things—the right to possess, the right to use, the right to exclude, the right to transfer, and so on.  This idea of property is conventionally traced to the progressives of the early twentieth century, and is understood as a conception that facilitated the greater regulation of property, and the correspondingly reduced constitutional protection for property, characteristic of that period.

In the book I show that the idea of property as a bundle of rights is actually much older.  When it first became widely held, it had a political significance exactly the opposite of the one ascribed to it in the conventional story.

Property was first understood as a bundle of rights in the nineteenth century in order to argue for greater constitutional protection for property rights, and thus less regulation.