Commodity & Propriety: Competing Visions of Property in American Legal Thought, 1776-1970

Commodity & Propriety: Competing Visions of Property in American Legal Thought, 1776-1970

Commodity & Propriety: Competing Visions of Property in American Legal Thought, 1776-1970

Commodity & Propriety: Competing Visions of Property in American Legal Thought, 1776-1970

Synopsis

Most people understand property as something that is owned, a means of creating individual wealth. But in Commodity and Propriety, the first full-length history of the meaning of property, Gregory Alexander uncovers in American legal writing a competing vision of property that has existed alongside the traditional conception. Property, Alexander argues, has also been understood as proprietary, a mechanism for creating and maintaining a properly ordered society. This view of property has even operated in periods--such as the second half of the nineteenth century--when market forces seemed to dominate social and legal relationships. In demonstrating how the understanding of property as a private basis for the public good has competed with the better-known market-oriented conception, Alexander radically rewrites the history of property, with significant implications for current political debates and recent Supreme Court decisions.

Excerpt

The aim of this book is to correct a widely shared misconception about the historical meaning and role of property in American law. For too long now, legal scholars, judges, historians, and political theorists have tended to accept uncritically the claim that there has been a single tradition of property throughout American history. Property, according to this mistaken view, has served one core purpose and has had a single constant meaning throughout American history: to define in material terms the legal and political sphere within which individuals are free to pursue their own private agendas and satisfy their own preferences, free from governmental coercion or other forms of external interference. Property, according to this understanding, is the foundation for the categorical separation of the realms of the private and public, individual and collectivity, the market and the polity.

The economic expression of this preference-satisfying conception of property is market commodity. Property satisfies individual preferences most effectively through the process of market exchange, or what lawyers call market alienability. the exchange function of property is so important in American society that property is often thought to be synonymous with the idea of market commodity.

The basic argument of this book is that this commodity theory of property is only half right. Property-as-commodity is one-half of a dialectic that American legal writing has continuously expressed from the nation's beginning to the recent past. the other half of the dialectic is a conception that, following the lead of Carol Rose, I will call "property as propriety." According to this view, property is the material foundation for creating and maintaining the proper social order, the private basis for the public good. This tradition, whose roots can be traced back to Aristotle, has continuously understood the individual human as an inherently . . .

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