There is one sentence that almost always finds its way into any discussion of property law. Found in William Blackstone’s Commentaries on the Laws of England, it states that nothing “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.” For those who understand property as a foundational and natural right, Blackstone’s sentence stands as an inspiration, and his notion of “sole and despotic dominion” as a kind of shorthand for the nature of property ownership within American constitutionalism.
But Blackstone was much cagier about the nature of property ownership than this sentence suggests. After mentioning “sole and despotic dominion,” he offers a series of qualifications and challenges. “Pleased as we are” with what we own, he states, “we seem afraid to look back to the means by which it was acquired.” He concedes that there is “no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done so, before him.” What is and what is not property; what can be held as “ours” in private, as opposed to what belongs in common or to the community or the state—according to Blackstone, all of this and more is rooted in historical circumstances and understandings, not in nature. The particular ways we hold property—for example, that in modern America a corporation has an unquestioned right to close factories and abandon workers and communities, while those workers and communities have no similar right to stop them from going—is simply what we do, or what we have done, just as sons in Blackstone’s day took “by right” from their fathers.
The best that property holders can hope for is that the laws remain “in our favor.” Whether or not they will depends, as Blackstone knew, on who made the laws and how they will be interpreted and enforced. Thus, to build on Blackstone’s qualifications: the fantasy of “sole and despotic dominion” will always depend on a changing mix of political, constitutional and institutional decisions. Whatever that dominion was and is depends on what particular courts at particular times might value as legitimate uses of property as well as on contingent and changeable historical judgments. Whose rights are exalted and whose claims are denied depends on whose interests the police and other public agencies decide to protect. In our day, this depends on local zoning boards, environmental agencies and the precedents of the Supreme Court. There would be no property rights without a law prohibiting theft, without institutions protecting the owner and enforcing his or her title of ownership against the “no right” of those who might otherwise “claim” or “take” or “regulate.” Nor would there be property rights without laws that made others vulnerable and obligated. And, as Blackstone adds at the end of the paragraph regarding “sole and despotic dominion,” property also depends on settled habits (what we might call longstanding constitutional commitments) and on the ignorance of “the mass of mankind.” It would be “well,” Blackstone thought, if they obeyed “the laws…without scrutinizing too nicely into the reasons of making them.”
Ever since the construction of the modern American law school curriculum in the mid- to late nineteenth century, the first-year course called “Property Law” has served to introduce students to that peculiar mix of political, constitutional and institutional decisions, to the practices and the changeable norms, that make some claims to the use of resources seem so strong that they become rights, while others remain mere claims. “Property Law,” the course, reveals exactly what Blackstone thought should not be scrutinized too closely by the mass of mankind. It is the place where many of the practices that actually make our world run have been conveyed to those who will soon play a central role in the management of those practices. Law students have often hated the course—but beneath the seemingly dull collection of practices, precepts and precedents lies unparalleled access to a way of understanding power in a society based on private property. Done right, the course becomes a window into some of the secret knowledge of society.