Eighteenth-Century Fiction and the Law of Property

By Wolfram Schmidgen | Go to book overview

CHAPTER TWO
Terra nullius, cannibalism, and the natural law of
appropriation in
Robinson Crusoe

Alan Ryan once suggested that English law “discouraged” inquiry into the phenomenology and genesis of ownership. Unlike civil law, the basis of most European legal systems, common law is unable to answer questions such as “'What is it to be the owner of something?' or 'How does a thingbecome mine?'” 1 This is so because common law treats the fact of possession as a fundamental social given. Its main concern is with describingthe established ways in which property can be held and conveyed; the problem of how somethingcan be appropriated that was not previously owned remains outside its conceptual boundaries. This treatment of possession as a fait accompli is most strikingly illuminated by the doctrine of universal possession, introduced by the Normans as nulle terre sans seigneur. 2 Accordingto a fundamental fiction of common law, all English land originally belonged to the English crown. In all of England there is not one piece of land that is not possessed — either by the crown directly or by those who hold, through the system of English tenure, mediately or immediately from the crown. The only aspect of common law that deals with the problem of how somethingbecomes property is known as “occupation” — a term that has central significance in natural law. In common law, however, occupation is marginal. “The laws of England, ” as William Blackstone points out, have “confined [occupation] within a very narrow compass. ” 3 So narrow, indeed, that Blackstone's extensive Commentaries on the Laws of England can dispense with this topic in five pages. 4

The common law's blind spot with respect to appropriation made it a problematic candidate for justifyingEnglish colonial land claims. Indeed, the three central legal mechanisms for claiming foreign territories — conquest, cession, and occupation — were worked out in natural law, or, as it came to be called, the law of nations. 5 The increasing relevance of natural law in regulating questions of international sovereignty emerges in exemplary fashion for the English context in the seventeenth-century

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