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Subject Area: Political Theory

Shifts in the Meaning of Property - Leonard P. Liggio, Literature of Liberty, Autumn 1982, vol. 5, No. 3 [1982]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Shifts in the Meaning of Property

Kenneth J. Vandevelde

  • Harvard Law School

“The New Property of the Nineteenth Century: The Development of the Modern Concept of Property.” Buffalo Law Review 29 (Spring 1980): 325–367.

The concept of property has been central to the development of both public and private law throughout the history of the United States. During those two hundred years, however, the meaning of the term “property” has changed radically. Prof. Vandevelde's article traces the main transformations of the concept of property from the Revolutionary period down to our own day.

In broad outline, Vandevelde's thesis is this: at the beginning of the nineteenth century, property was ideally defined as absolute dominion over things. Under this absolutist and physicalist conception, the law of property was based on a taxonomy of things—with the nature of each thing determining its treatment at law. “Real property” consisted of things which were fixed and immovable (such as land and tenements), while “personal property” comprised movable things (such as money and goods).

Real property was further divided into “corporeal hereditaments” (land) and “incorporeal hereditaments” (advowsons, tithes, commons, ways, offices, dignities, franchises, corodies, annuities, and rents). Incorporeal hereditaments presented a conceptual problem for the great legal systematizer Blackstone, since the holder of such property held no thing—only a right, albeit a right issuing from a thing. Blackstone solved the problem by reifying these rights. They became “things,” though in name only.

As the nineteenth century progressed, numerous exceptions to the physicalist elements of Blackstone's conception of property were incorporated into the law. Acting at times on a theory of natural law and at other times on the instrumentalist public policy of a positive state, courts increasingly sought to protect value as property, even though no thing was involved. Soon any valuable interest could be declared the object of property rights. This process of dephysicalization threatened to place the entire corpus of American law in the category of property—a conceptual imperialism which created severe problems for the courts.

The absolutist conception of property also came under assault. Throughout the nineteenth century, courts discovered that some interests which deserved protection could not be protected absolutely without unduly restricting the activity of others. Courts thus created less protected forms of property. However, once they admitted that all property was not equally protected, the designation of an interest as “property” could no longer provide a basis from which legal rights could be automatically deduced. As a result, such a designation no longer settled a controversy. It merely restated the dispute.

By the beginning of the twentieth century, a new conception of property emerged and was stated in its definitive form by Wesley Newcomb Hohfeld. The new property was defined as a set of legal relations among persons. Property was no longer conceived as dominion over things. Moreover, property was no longer absolute, but limited, with the meaning of the term varying from case to case.

The new conception of property failed to solve the problems caused by the decay of the Blackstonian conception. Courts still had to decide whether a particular interest was property, and, if it was, how much protection it merited. The new property concepts proved unable to settle controversies and to legitimate results. Courts overcame their paralysis by deciding cases with overt recourse to political categories. In so doing, however, they abandoned the myth of judicial neutrality and, with it, their own legitimacy. The “government of laws and not men” which had seemed clearly to exist to Chief Justice Marshall had been exposed as, in truth, a government of “nine old men.” The creation of the new property was, in microcosm, the destruction of the rule of law.