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.

Property & Leisure: Aristotle vs. Locke

There have been moments in my education when I realize that even though I spent a lot of time on a subject, I really only scratched the surface of the subject. I recently had that experience, while reading Aristotle's Politics, with the subject of property.

Like every other law student in America, I struggled through a pretty complicated course on real property in my first year. After spending a semester learning the basic concepts of property law, such as the different types of estates and co-ownership, as well as restrictions on land use (e.g., zoning and real covenants), I figured that I had a pretty good grasp on the subject. Moreover, most of these concepts are not just taught to first-year law students, but really are essential concepts for many practicing lawyers today. These concepts for the most part fit with certain theories about the nature of property which are shared by most people today and which were announced at the beginning of the course. The theory that guided discussion in my class was John Locke's labor theory of property: "Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property" (Second Treatise on Government, Chapter 5, Section 27). Locke's basic idea is that property is something man creates through his labor; what each individual contributes to a thing is what makes it his property.

But, there were times during the course when more archaic, less "enlightened" views of property made an appearance. Those concepts also tended to be the hardest to understand. One such concept was a type of estate called the fee tail (now abolished in most jurisdictions), which placed severe restrictions on which heirs in future generations could inherit the property. The fee tail's purpose was to keep large estates intact and in the family, and was used mostly by the landed classes. (The fee tail was actually the cause of the Bennets' prospective penury in Pride and Prejudice.)

The second archaic doctrine was the rule against perpetuities, which was designed to counteract the dead hand controlling the fates of estates for generations into the future. Though these rules served opposite purposes--the fee tail preserved estates by restricting heirs' ability to sell the land or name his own heirs, while the rule against perpetuities prevented land owners from restricting their heirs' powers too much--they were both evidence of a very different understanding of property. According to this older understanding, property is much more stabile, it is something that pre-exists us, that needs to be preserved by the current generation and then passed onto the next generation--it is not something each man creates anew through his labor.

This older understanding of the nature of property is first attested to, in theoretical form, as far I know, by Aristotle. In a section of the Politics where he discusses the characteristics of a democracy made up mostly of yeoman farmers, Aristotle writes that "owing to [the farmers'] not having much property [οὐσία], they are without leisure [ἄσχολος]" (Bk. VI.2.1; 1318b11), and therefore do not have much time to engage in politics. What I find intriguing--and contrary to so much of what I learned in my course on property--is that Aristotle describes property here not in terms of its origin (as Locke does), but in terms of its purpose, its end [τέλος]. Property is what is capable of making a man self-sufficient thus giving him leisure to devote himself to more important pursuits, such as politics or philosophy.

Locke and Aristotle represent two very different views of property. The fundamental distinction between Locke and Aristotle can be summarized in the distinction between the words "creation" and "trust." In a Lockean world, where property depends on man's creative labor, if man is to have any property, man must be constantly striving to create property and value, which is usually done today through commerce. This encourages, I suspect, a certain restlessness in a man's relation to his property, and perhaps also a certain acquisitiveness. Even if a man is already rich from commerce, he needs to keep trading and manufacturing; he never has anything like a landed estate that he can fall back on. For Aristotle, on the other hand, acquisitiveness (πλεονεξία/pleonexia) is explicitly condemned as a vice. While it is certainly true that a man must cultivate his property in order to attain self-sufficiency, man's labor does not, strictly speaking, create the property's value. The property's value is more like that of a trust, which needs to be protected by a prudent steward. Once the steward (trustee) does this, he can then allow himself some ease and use his leisure to pursue other, more worthy objects.

Finally, just to complicate matters: While I certainly prefer leisure to acquisitiveness, and thus prefer Aristotle to Locke in this matter, that is not the only question to consider when examining different systems of land tenure. For instance, the older system, such as England had in the Middle Ages (with the fee tail and primogeniture), tended to create a class of sons who could not inherit property. In many cases, these sons either left their families to make a living for themselves, or else many chose to stay at home but remain unmarried. It must be acknowledged, then, that each system has its advantages and disadvantages.