Thursday, June 14, 2012

The Geometric Conception of Property


Two years ago, I wrote a post comparing Aristotle and Locke's views of property, the main idea of which was that the modern Lockean view of property created a view of property that was essentially acquisitive--the owner creates the property through his labor. Under the ancient Aristotelian view, on the other hand, the owner held his land in trust--he took care of what he already had so that he could then devote his free time to politics and pass on the land to his children. The modern view naturally tends to treat the land as a commodity for use in business, while the ancient view treats land as the source of leisure. As a result of this basic change in mentality, forms of land tenure changed so that it became more readily available in commerce. For instance, in America courts have long discouraged restraints on alienation and nearly all legislatures have abolished the fee tail. This not only has made the land easier to buy and sell, but also to mortgage, thus making large-scale borrowing possible for many people of relatively modest means. The longstanding tendency in modern America has been to make land as liquid an asset as possible.

Theoretical considerations, I argued, have radically changed our views of property, but the law of unintended consequences is always at work, as witness Thomas Jefferson's introduction of sections and ranges into land measurement (see Will Hoyt's article in Front Porch Republic). Jefferson hoped to encourage local liberty by distributing property as widely as possible among a class of yeoman farmers; the pre-modern nature of Jefferson's project becomes especially clear when one notices the archaic words he borrows from Anglo-Saxon law to describe his ideal republic. However, Jefferson tried to implement this goal with a thoroughly modern means, by parceling land in a huge grid using state-of-the-art surveying technology, which spread across the Midwest after passage of the Northwest Ordinance.

As Hoyt points out, partly as a result of Jefferson's efforts, land in America came to be viewed in abstract geometric terms, as a commodity, whose value could be easily calculated in dollars and cents for sale on the marketplace. Restraints on alienation disappeared as more and more settlers wanted to be able to move on at short notice, so that today the only forms of tenure that matter are the fee simple and the leasehold. Restrictive covenants and easements, while still allowed, are generally disfavored, except for utility and railroad easements which improve a parcel's access to the modern economy. Most importantly, legally there are strict limits on the kind of mutual obligations a land owner can impose on future generations, and if there is any doubt as to the donor's intent, courts will interpret a will or trust instrument in such a way as to impose as few obligations on the donor's descendants as possible.

A recent example of the disappearance of pre-modern land tenure appeared a few months ago in Ipswich, Massachusetts (see the March 2, 2012, Wall Street Journal). The original owner of the land dictated in his will that the land was never to be sold and that the rents were to be used for the maintenance of free schools. The donor's intent was clearly to enforce mutual obligations into perpetuity, in the hope of binding the community together in one of its most important institutions, the local public school. This arrangement continued for over 300 years until a controversy arose over the trustees' management of the rents from the property, and now a court has allowed a sale of the property despite the clear instructions in the will.

Given the development in American law, it is not much of a surprise that the property will be sold and converted to a fee simple. This is simply one of the most recent victories of the Lockean view of property over a corner of the world that had resisted long after the rest of America had changed.
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