Academic journal article The University of Memphis Law Review

Metaphysical Right and Practical Obligations

Academic journal article The University of Memphis Law Review

Metaphysical Right and Practical Obligations

Article excerpt

I. Introduction

My task is to say what remains of property rights. My answer is: quite a lot. We have reason to be optimistic about the constitutional status of private property. To explain why, I will relate a short story about property jurisprudence in Anglo-American law. It is a story not merely about property, but also about ordered liberty. Thus, this story is not just for property scholars; it holds valuable lessons for scholars and jurists who are interested in other aspects of American constitutionalism as well.

Accounts of property rights often begin with the familiar treatise of John Locke.1 My account does not start with Mr. Locke, but with the writings of the great English jurist, William Blackstone. Unlike Locke, whose goal was to rebut the claim of kings to rule by divine right and who appealed to universal first principles, Blackstone set out to educate law students. He succeeded by declaring the structure and concepts of common law that make sense of the law of England, and by locating its parts within its whole. That English law includes the natural and civil rights that law scholars and students so often associate with Locke. But it also includes scores of particular rights and duties that arose organically in England and her colonies, including (of concern to us) British North America. Unlike those natural rights with which all humans are endowed by their Creator, and which therefore cannot be otherwise, the customary rights and liberties of the common law are partially contingent upon English and early American history. But they also are evidence of practical wisdom from which we can learn something important about rights generally. As I intend to show, rights are most secure when they are grounded in those concrete, ancient, practical duties.

II.Blackstone's Dominion

Late in the eighteenth century, Blackstone almost doomed the study of private property with extravagant praise in one of the most hyperbolic lines in legal education. "There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property," Blackstone exclaimed, "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."2 Blackstone made this pronouncement in the first chapter of the volume-long treatment "Of the Rights of Things" in his four-volume Commentaries on the Laws of England.3 Reading it, the uninitiated law student might be forgiven for anticipating a drama worthy of Shakespeare, Sophocles, or maybe even the Coen brothers.

In the first volume of the Commentaries, Blackstone ratified John Locke's political theory and listed the "right of private property" among the absolute rights of Englishmen.4 Anticipation builds as the law student opens the second volume and Blackstone appears to settle in for the telling of an epic. "In the beginning of the world," Blackstone intones, before introducing his protagonist: God himself..5 This is grand stuff! Yet, to the reader who is expecting a sweeping historical and philosophical narrative about the origins and justifications of property, something seems a bit off. Blackstone continues:

In the beginning of the world, we are informed by holy writ, the all-bountiful Creator gave to man "dominion over all the earth; and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth." This is the only true and solid foundation of man's dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject.6

Early in this passage, the first suspicious sprouts of legalese intrude into the tale, and the alert law student begins to suspect a baitand-switch. In just two sentences, Blackstone has replaced the sole and despotic right of property that fires the imagination with a dominion that, to those who are familiar with the "holy writ" in question,7 seems suspiciously like stewardship, perhaps giving rise to certain fiduciary duties to a supreme Being. …

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