Jessie Allen, School of Law, University of Pittsburgh
Blackstone Weekly needs to pause to mark the moment. The last post of 2010 (on corporations, death and the Second Circuit’s provocative Kiobel decision) completed Volume I of the Commentaries. One down, three to go. We press on.
Book the SECOND, Of the Rights of Things. Chapter the first. Of PROPERTY, in general.
The title of Blackstone’s second volume makes it look like it’s about something that it isn’t. “The Rights of Things,” is not about the question, for instance, whether robots have a right to avoid injury. It is not about the proposal to protect the environment by giving the natural landscape a right to preservation, rather than depending on individual citizens or government to enforce their respective rights to enjoy and regulate nature. In this first chapter, Blackstone explains that “the objects of our inquiry in this second book will be the jura rerum, or, those rights which a man may acquire in and to such external things as are unconnected with his person.” (p. 1) Ho, hum, more rights for men. Still, the oddness of the title alerts us to a divergence between our usual focus and Blackstone’s point of view. Blackstone’s approach to property rights implies a relation, between a person and a thing, and among persons through things and things through people, that changes the nature of all concerned.
The idea that owning something can transform it is not necessarily a sophisticated concept. When my daughter was about six, she came home one day from a play date and announced, “I like Ewan’s house better than ours – it’s cleaner, and they own it.” Now, reading Blackstone, it occurs to me that there is something of the six-year-old in his famous evocation of the thrill of exclusive ownership: “There is nothing which 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.” (p. 2) Actually, that sounds more like a two-year-old. Sorry, William, but you have to share!
I am reading another book, however, that illuminates a contrary aspect of Blackstone’s property romance. In The Meaning of Property, Jedediah Purdy makes the case that for Blackstone (and Adam Smith) private property was a force for social cooperation rather than savage competition. Purdy explores the Enlightenment notion that private property’s exclusive character — combined with the potential to buy, sell or otherwise exchange property from one owner to another — fosters “a society of negotiation.” Purdy at 15. In this vision, property owners’ right to exclude others is the feature that allows them “to decline any proffered relationship or joint venture” and so forces the profferer to negotiate, to convince the owner to go along – by practicing the civilizing skills of “interest based persuasion.” Id. at 17. To be successful in such a world, men needed “sensitivity” and “awareness of others’ interest and feelings” and earned the respect of their negotiating partners through “steady and solid execution of their commitments.” Id. at 16. As Blackstone himself puts it, property “has been the ennobling of the human species, by giving it opportunities of improving its rational faculties, as well as of exerting it’s natural.” (p. 8 )
It seems that Blackstone (and Locke and Smith) would agree with Marxist critics that our legal system is an “epiphenomenon,” created to serve the interest of private property: “In order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants; states, government, laws, punishments . . . .” (p. 8) They just have very different ideas about the moral and social consequences. Critics see a legal system enforcing an inequitable distribution of property among parties whose differences in buying power are so extreme that every “negotiation” is more like a Godfather-style offer the owner could not refuse. What Purdy points out is that for the Enlightenment founders of capitalist democracy, protecting private property meant something more than creating the conditions for economic prosperity.
In Blackstone’s story, private property is not just – or not directly – the key to individual liberty. Property changes human nature as it goes about building social institutions – transforming a bunch of grabby toddlers clutching toys and shouting “mine, mine, mine” into a complex society of cooperating six-year olds who know how to “use your words.” I have no idea about the empirical soundness of the underlying causal claim here. What interests me is the continued vitality of the idea of negotiation as character-forming communication. For instance, after Purdy’s book, I now hear echoes of this theme in accounts of the recent housing crisis.
There certainly is a way to narrate the housing market meltdown as a cautionary tale about the way deteriorating modes of property transfer undermine social structures. In this story arguments about different individuals’ interests give way to a collective fantasy that real estate prices can never fall. Far from “a society of negotiation,” this was a world in which it became either unnecessary or impossible to persuade anyone to make the deals being undertaken. The previously legible structures of real property transfers got hopelessly tangled and unintelligible – even to those who ordinarily fared well in the old system of unequal opportunity.
For many prospective homebuyers, the terms on which they were being offered the American dream of home ownership were so irrational that actual insight into one’s own interest (to say nothing of the other guy’s) would only kill the dream. Remember the banks that “checked” prospective home buyers’ income estimates by estimating what people in their occupations generally made? When the mortgager is encouraging the borrower to misstate reality in order to qualify for the loan, both parties are invested in non-communication (or outright misrepresentation.)
At the other end of the economic chain, so this story goes, a voracious foreign credit demand outstripped not only supply but any need or ability to understand, let alone thoughtfully negotiate transfers of the novel products created to satisfy this insatiable market. The language of property no longer kept up with the material reality it sought to describe and construct. The things on the other side of the property relation became increasingly transubstantial and unarticulated – from houses to mortgages to mortgage backed securities that were conglomerations of pieces of different debt transactions that had themselves passed through so many previous transfers that no one had any idea anymore who owned what. In this imagined market-babble, nobody could talk fast enough to articulate the complexities of the transactions that just kept on growing and anyway no one was really sure to whom they should be talking, and for lack of anything more intelligent to say, everybody just wound up screaming “Buy! Buy! Buy!”
What does it mean to figure the sub-prime mortgage fiasco as a failure of property communication? Most obviously, if the foreclosure crisis came about because the language of negotiation got garbled, we might hope to set things right by adjusting and better controlling property transaction structures – rather than facing a need for increased state regulation of private property itself. From a cultural perspective, the coherence of this story suggests that we have internalized a foundational liberal-Enlightenment notion about the way private property can lead to a good life – i.e., by helping us articulate ourselves to one another.
The problem with this communication-deterioration account of the housing crisis is that the Enlightenment belief in the of property exchange as socializing language never entailed any actual persuasion or negotiation. Purdy quotes Adam Smith explaining that the exchange of a shilling “is in reality offering an argument to persuade one to do so and so as it is in his interest.” Purdy at 15. The idea seems to be that payment itself is a ritual of persuasion – a condensed communication — somehow capable of attuning buyers and sellers to one another’s “interests.” If that is the case, it doesn’t really matter how incoherent the real language of property exchange becomes. So long as payment is taking place, Smith’s implied negotiation should still work its socializing magic.
Then again, perhaps the notion of a silent humanizing discourse of property makes most sense as a kind of Anglo-American cultural ideal. Like other rituals, we might see it as an imagined pattern that we aspire to emulate but never to actually achieve in our own dealings. (See, e.g., Seligman et al., Ritual and Its Consequences) What is striking is that looking back to an earlier time in my life, the real patterns of property exchange appear much closer to this ideal of silent communication. In the quintessentially middling society I grew up in – as a middle-class kid of the Midwest in the mid-twentieth century — there was always something vaguely disreputable about overt bargaining. Persuasion had a shifty, feminized, aspect – the opposite of the upright, character-building interactions envisioned by Blackstone. It was as though negotiation implied at once weakness (the inability to simply proffer the named price) and a tricky desire to get more than one deserved. The respectable thing to do was to pay the amount discretely printed on the tag and never mention price. In the booming U.S. economy of the 1960s, middle-class Americans could and did buy everything from groceries to houses through these wordless payment rituals.
As a matter of empirical reality, it seems highly questionable that silent payment rituals could ever generate Blackstone and Smith’s humanizing discourse of self interest. But the fact that we can see those rituals brought to life in a previous “golden age” of economic stability and social and political creativity – and find them spoiled in a current socioeconomic crisis – suggests how powerful the myth remains. As an ideal cultural pattern, developing ourselves through payment seems still to capture American imaginations.