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Hume’s Conventionalist Account of Property and the History of English Land Law

Published online by Cambridge University Press:  24 August 2022

Darryn Jensen*
Australian National University College of Law, Canberra, Australia
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The central theoretical assumption of English land law (and land law in related legal systems) that all rights in land are derivative of the Crown’s rights does not provide a full account of the origins of rights in land. ‘Liberal’ theories of the origin of property rights, which see property rights as something that emerged independently of state action, retain considerable explanatory value. The paper begins with a discussion of the principal features of David Hume’s account of the origins of property. The paper then engages with historical scholarship that shows that (1) it is a mistake to see the medieval English hierarchy of administration as implying a hierarchy of property rights ultimately derived from the Crown’s ‘title,’ and (2) the idea that communal medieval agricultural practices were super-imposed upon a pre-existing system of individual property rights is plausible.

Research Article
© The Author(s), 2022

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1. The archetypal statist account of the origin of legal institutions is that of Thomas Hobbes. As Allan Beever has observed, Hobbes argued that “citizens cannot lead even remotely worthwhile lives unless the sovereign possesses authority.” Allan Beever, Forgotten Justice: The Forms of Justice in the History of Legal and Political Theory (Oxford University Press, 2013) at 182.

2. A possible third class of theories of property rights is ‘libertarian’ theories, which share with the ‘liberal’ theories the idea that property rights are intelligible in the absence of a state but do not admit that a state is necessary to regularise the enforcement of property rights. For a clear example of such a theory, see Murray N Rothbard, The Ethics of Liberty (Humanities Press, 1982), who argued that a state’s revenue-raising activity and assertion of a monopoly of force in a geographical area “necessarily constitute criminal aggression and depredation of the just rights of private property of its subjects” ( ibid at 171) and that, if the state were to disappear, “those genuine services which it does manage badly to perform would be thrown open to free competition, and to voluntarily chosen payments by individual consumers” (ibid at 172). A more restrained libertarian theory is found in Robert Nozick, Anarchy, State, and Utopia (Basic Books, 1974). Nozick provided an ‘invisible-hand’ explanation of the emergence of an ‘ultraminimal state’, which consists of the dominant protective association in a geographical area and which would be “morally required to compensate for the disadvantages it imposes upon those it prohibits from self-help activities against its clients” and, thus, be morally obliged to transform itself into a ‘minimal state’, but “might choose not to do so” (ibid at 119).

3. In referring to ‘English’ property law, I am referring to the law of England and the law of jurisdictions such as Australia and Canada that have received English law.

4. Sir Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I, vol 1, 2d ed (Cambridge University Press, 1923) at 232.

5. See Mabo v Queensland (No 2), [1992] HCA 23 at paras 49, 51 (Brennan J; Mason CJ and McHugh J agreeing), 7 (Deane and Gaudron JJ).

6. Corey Venning, “Hume on Property, Commerce, and Empire in the Good Society: The Role of Historical Necessity” (1976) 37:1 Journal of the History of Ideas 79 at 80.

7. See GWS Barrow, Feudal Britain: The Completion of the Medieval Kingdoms 1066-1314 (Edward Arnold, 1956) at 18-25. It should be noted that Barrow distinguished between the large parts of Anglo-Saxon England, in which the ‘manorial’ system prevailed, and Kent, Cornwall, East Anglia, and the Danelaw, in which it did not. Barrow also noted that ‘popular’ and ‘baronial’ courts of law continued to operate alongside the royal court during the reign of the third Norman king, Henry I. The justice dispensed in the ‘popular’ courts was “derived not from the king but from the immemorial custom by which the substantial men of a district … sat in judgment on the disputes and wrong-doings of their neighbours or kinsmen” ( ibid at 78).

8. Ibid at 45.

9. David Hume, A Treatise of Human Nature, 2d ed by LA Selby-Bigge & PH Nidditch (Clarendon Press, 1978) at 310 (Book II, Part I, Section X).

10. Ibid at 487-88 (Book III, Part II, Section II). The external advantages of our bodies are, of course, exposed to the violence of others. Hume’s argument about our bodies is that an assailant cannot, generally speaking, appropriate the advantages of another person’s body by killing or maiming it—the harvesting of organs for transplant being a recent exception that Hume could not have been expected to foresee—but the advantages of external possessions can be appropriated by others.

11. Ibid at 488.

12. Ibid at 489.

13. Ibid at 490 [emphasis in original].

14. Ibid at 480 (Book III, Part II, Section I).

15. Ibid at 481.

16. Ibid at 482.

17. Ibid at 483.

18. Ibid .

19. Ibid at 497 (Book III, Part II, Section II).

20. Ibid .

21. Venning, supra note 6 at 80.

22. Friedrich Hayek, “The Errors of Constructivism” in FA Hayek, New Studies in Philosophy, Politics, Economics and the History of Ideas (Routledge & Kegan Paul, 1978) 3 at 19 [Hayek, “Errors of Constructivism”].

23. Hume, supra note 9 at 494 (Book III, Part II, Section II) [emphasis in original].

24. Ibid at 496. See also Alan Ryan, Property (Open University Press, 1987) at 96.

25. Hume, supra note 9 at 497.

26. Adam Ferguson, An Essay on the History of Civil Society 1767, 5th ed (Edinburgh University Press, 1966) at 122.

27. Lawrence A Scaff, “Hume on Justice and the Original Contract” (1978) 33:1 Philosophical Studies 101 at 104.

28. Scaff takes this distinction from John Searle. Searle has recently restated the distinction as being between “those [rules] that regulate antecedently existing behaviors and those that constitute new forms of behavior that regulate the very behavior that they constitute.” John R Searle, “Constitutive Rules” (2018) 4 Argumenta 51 at 51. Searle gave the examples that, in the US, people must drive on the right hand side of the road (regulative rule) and that, in chess, “the King moves to any adjacent square, one square at a time” (constitutive rule) ( ibid ). The practice of driving exists independently of the rule that dictates on what side of the road one should drive, while the practice of chess is constituted by rules about how one may move each type of chess piece (ibid at 52).

29. See Hume, supra note 9 at 501-16 (Book III, Part II, Sections III & IV); see also Venning, supra note 6 at 82.

30. Ryan, supra note 24 at 96-97.

31. Peter Laslett, ed, John Locke: Two Treatises of Government (Cambridge University Press, 1960) at 286-87 [emphasis in original].

32. Ibid at 288.

33. Lawrence C Becker, Property Rights: Philosophic Foundations (Routledge & Kegan Paul, 1977) at 61. As Becker observed, Locke’s argument also contains a ‘happiness’ or ‘utility’ element, in that “[t]o the extent that use and possession are necessary for consumption, they are as necessary to life and happiness as consumption” ( ibid).

34. Hume, supra note 9 at 502.

35. David Gauthier, “David Hume, Contractarian” (1979) 88:1 The Philosophical Review 3 at 10.

36. Ibid at 11.

37. Ibid at 17. Gauthier describes Hume’s position as “hypothetical contractarianism” (ibid at 15). See also, James A Harris, “Hume on the Moral Obligation to Justice” (2010) 36:1 Hume Studies 25, who agrees with Gauthier that Hume was not a proto-utilitarian but preferred to speak in terms of general “moral approval” of a system than of a hypothetical contract (ibid at 28).

38. Hume, supra note 9 at 490 (Book III, Part II, Section II).

39. Ibid at 490-91.

40. Friedrich Hayek, in rejecting the possibility of designing utility-maximising rules and practices, seems to follow in the tradition of Hume. See Hayek, supra note 22 at 11: “It was the great achievement of economic theory that, 200 years before cybernetics, it recognised the nature of such self-regulating systems in which certain regularities (or, perhaps better, ‘restraints’) of conduct of the elements led to constant adaptation of the comprehensive order to particular facts, affecting in the first instance only the separate elements. Such an order, leading to the utilisation of much more information than anyone possesses, could not have been ‘invented’. This follows from the fact that the result could not have been foreseen.” See also Friedrich A Hayek, Law, Legislation and Liberty: Volume II The Mirage of Social Justice (Routledge & Kegan Paul, 1982) at 8: “there would be no need for rules if men knew everything—and strict act-utilitarianism of course must lead to the rejection of all rules.”

41. Hume’s institutional conservatism is, once again, replicated in the work of Hayek. “The picture of man as a being who, thanks to his reason, can rise above the values of his civilisation, in order to judge it from the outside, or from a higher point of view, is an illusion. It simply must be understood that reason itself is part of civilisation. All we can ever do is to confront one part with the other parts. Even this process leads to incessant movement, which may in the very long course of time change the whole. But sudden complete reconstruction of the whole is not possible at any stage of the process, because we must always use the material that is available, and which itself is the integrated product of a process of evolution.” Hayek, “Errors of Constructivism”, supra note 22 at 20 [emphasis added].

42. Hume, supra note 9 at 540 (Book III, Part II, Section VIII) [emphasis in original].

43. Ibid at 535 (Book III, Part II, Section VII).

44. Ibid at 537.

45. Ibid at 538.

46. Immanuel Kant, The Metaphysics of Morals, ed by Mary Gregor (Cambridge University Press, 1996) at 47 [emphasis in original].

47. Beever, supra note 1 at 162-63.

48. Kant, supra note 46 at 45. See also Ernest J Weinrib, “Private Law and Public Right” (2011) 61:2 UTLJ 191 at 195-96. For an example of Hume’s use of the concept of intelligibility, see Hume, supra note 9 at 491.

49. Kant, supra note 46 at 45.

50. Ibid at 46. See also Beever, supra note 1 at 162-63; Weinrib, supra note 48 at 196.

51. This theme of irregularity of definition and enforcement is found also in Locke’s work. See in particular Laslett, supra note 31 at 350-52.

52. Hume, supra note 9 at 539 (Book III, Part II, Section VII).

53. See for example Laslett, supra note 31 at 343-44.

54. Hume, supra note 9 at 550 (Book III, Part II, Section IX).

55. Ibid.

56. Ibid at 551-52.

57. Ibid at 553.

58. Venning, supra note 6 at 81.

59. See Hume, supra note 9 and the accompanying text.

60. Ibid at 502 (Book III, Part II, Section III).

61. This is true also of Nozick. See Nozick, supra note 2 at 151-53.

62. See Beever, supra note 1 at 221.

63. Kant, supra note 46 at 38-39.

64. Ibid at 39 [emphasis in original]. The German words used by Kant, which Gregor translated as ‘nominal definition’ and ‘real definition’, are respectively Namenerklärung and Sacherklärung.

65. Scaff, supra note 27 at 106.

66. See for example Sir Robert Megarry & Sir HWR Wade, The Law of Real Property, 8th ed, (Sweet & Maxwell, 2012) at 52 (quoting Cyprian Williams— “A tenant in fee simple of land enjoys all the advantages of absolute ownership, except the form”).

67. See Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted (Clarendon Press, 1994).

68. Ibid at 334.

69. Ibid at 337.

70. Ibid at 374.

71. Ibid at 376.

72. Ibid at 360.

73. Ibid .

74. Ibid at 393.

75. Ibid at 394.

76. Ibid .

77. Ibid .

78. Richard C Hoffmann, “Medieval Origins of the Common Fields” in William N Parker & Eric L Jones, eds European Peasants and Their Markets: Essays in Agrarian Economic History (Princeton University Press, 1977) at 23, 24-25. Joan Thirsk defined the common field system by four characteristics: (1) division of arable land and meadow into strips among the cultivators; (2) both arable land and meadow are open to common pasturing after harvest and in fallow seasons, which necessitates rules about cropping; (3) cultivators of strips have rights to graze animals and to collect commodities from common pasturage and waste; and (4) there is regulation of these activities by an assembly of cultivators, usually the manorial court. See Joan Thirsk, “The Common Fields” (1964) 29 Past & Present 3 at 3.

79. See Hoffmann, supra note 78 at 25.

80. Ibid at 25, 27.

81. Ibid at 27.

82. Ibid at 25. See also Thirsk, supra note 78 at 4.

83. Hoffmann, supra note 78 at 33.

84. Ibid at 35-37. See also Thirsk, supra note 78 at 8.

85. Hoffmann referred to German scholarship that asserts that “both Tacitus’ description of early Germanic agriculture and the pertinent passages of Salic and other Merovingian law codes are devoid of evidence for communal regulation of arable land, confining their references solely to neighborly rights enforceable in the courts.” Hoffmann, supra note 78 at 37.

86. Ibid at 41.

87. Thirsk, supra note 78 at 7.

88. Ibid at 8.

89. Hoffman, supra note 78 at 54-55.

90. Thirsk, supra note 78 at 8.

91. Hoffmann, supra note 78 at 59-60.

92. Thirsk, supra note 78 at 9.

93. Ibid .

94. Ibid . See also Donald N McCloskey, “The Persistence of English Common Fields” in Parker & Jones, supra note 78 at 73, 95-96, in which McCloskey mentioned the additional benefit of ensuring “that the peasant’s work was spread over several years, equalizing the marginal utility of leisure from year to year.”

95. Henry E Smith, “Semicommon Property Rights and Scattering in the Open Fields” (2000) 29:1 J Leg Stud 131 at 146.

96. Ibid at 147.

97. Ibid at 149.

98. Hoffmann, supra note 78 at 61.

99. Ibid .

100. Ibid at 62.

101. Ibid at 46-47.

102. Ibid at 47.

103. Ibid .

104. See Thirsk, supra note 78 at 11.

105. Hoffmann, supra note 78 at 48.

106. The most notable statute was the Inclosure Act 1773 (UK), 13 Geo III, c 81.

107. Thirsk, supra note 78 at 23-24; Thirsk mentioned central Suffolk, most of Essex, Hertfordshire, parts of Shropshire, Herefordshire, Somerset, Devon, and Cornwall. See also the map provided by Hoffman, supra note 78 at 26 (Figure 1:1), which purports to show that parts of Suffolk, Essex, Kent, and practically all of Devon and Cornwall were enclosed by about 1300 CE. See also Barrow, supra note 7 at 20.

108. Thirsk, supra note 78 at 24.

109. Barrow, supra note 7 at 21.

110. Ibid at 22. This labour was due from the holding, not from the tenant personally. Where a peasant family had adult sons, it was possible for the sons to perform that work, allowing the father to devote himself full-time to the family holding (ibid at 93). By the thirteenth century, it was common for fixed rents to be paid or for labour services to be commuted for cash payments (ibid at 337).

111. Ibid at 22.

112. Ibid .

113. Ibid .

114. Ibid at 22-23.

115. Ibid at 23.

116. Ibid .

117. Ibid at 24.

118. Ibid at 23-24. See also Reynolds, supra note 67 at 374.

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