The readings for our first session offered me a much necessary corrective to a vision molded by the prevailing economic history narrative concerning property law in America. The neo-institutionalism consensus adopted after the works of Douglass North and Barry Weingast among others emphasizes the need of securing property rights as a precondition for optimum economic development. Economic historians and neo-institutionalist economists often fall prey to describing property rights as a given, transhistorical reality. Afterwards, these scholars usually debate which legal tradition, common law or civil law, has been more conductive for economic growth (in the style of studies by Andrei Schleifer, Rafael La Porta and Florencio Lopez de Silanes). The works we have read and discussed demonstrated the need to properly historicize property rights, to reinstate the contingency behind their making, to study the local adaptation of metropolitan laws in colonial contexts, before we start thinking about their long-lasting, path-dependent effects on economic development.
In England, social evolution brought the need to establish the boundaries between communal and individual ownership, and the same definition of property is a product of civilization, urbanization and agricultural advance (Blackstone 1788 (1915), 716-719). Property in the form of individual, absolute dominion was a central concept in early modern “public law, political argument, political economy and moral philosophy” (Gordon 1996: 95): it is the historian’s task to unravel the ideology implicitly presented in each of these instances.
Gordon posits the conflictive nature of property rights through time: how can ideal, absolute property rights confront the reality of “relative, qualified property relations” (Gordon 1996: 96)? Is property as absolute dominion a precondition for the coming of a market society? If this is the case, how does the affirmation of inalienable, individual property rights find its way through the realities of socioeconomic life? Has the main result of the historical ascent of individual property rights a dismissal of other forms of economic organization more viable for problems meriting collective action?
The microeconomic concept of externalities might come useful to study the unintended consequences of this historical process. Thinking of the social costs imposed by the assertion of individual property rights through time helps read the evidence presented in both Gordon and Horwitz’s works. Interestingly enough, the neo-institutionalist narrative around the importance of property rights does not posit enough agency in the judiciary element interpreting (and making) the law: as Gordon’s Transformation brilliantly demonstrates, economic historians would do good in understanding that judges were key actors in determining the pace and direction of social change, and ultimately “the nature of American institutions” (Horwitz 1977: 2).
Judges were not impartial to the development of the American market economy, and the growing importance of the monied interests had an impact in their activist stance in the dawn of the 19th century. The want of adapting the common law tradition within a system of popular sovereignty derived in judges having to challenge what was “natural” in natural law and becoming in fact “architects of the legal system” (Horwitz 1977: 24). By the 1820s, the change was complete, and law was seen as a vehicle for governing society and promoting desirable courses of social change. Judges were more able then to grasp the problems arising from the transformation of an agrarian to a commercial and manufacturing economy, and as they challenged natural law they also contested notions of natural use in land. Water rights were a main example of this change in the conception of private property rights, given the increased importance of mills, dams and (later) canals.
The cases studied by Horowitz made me think of private and public goods, appropriability and access, and their relationship with land and natural resources: further work in land history could gain from qualifying these economic concepts in the light of the historical record. Banner and Horowitz were the most effective readings in challenging my own understanding of property rights from an almost “social physics” perspective to what they effectively are: historically contingent constructions, changing in space and time.