Sunday, June 22, 2014

Walker F. Todd, Introduction, Why Do Property Rights Matter? ~PROGRESS AND PROPERTY RIGHTS FROM THE GREEKS TO MAGNA CARTA TO THE CONSTITUTION, Book & Review Legal scholar Richard A. Posner, who was appointed to the federal bench in 1981 by President Ronald Reagan, offers this definition in his casebook, The Economic Analysis of Law.  Referring to Common Law, he divides the rules covering property into three parts:

  • The law of property, concerned with creating and defining property rights, which are rights to the exclusive use of valuable resources.
  • The law of contracts, concerned with facilitating the voluntary movement of property rights into the hands of those who value them the most.
  • The law of torts, concerned with protecting property rights, including the right to bodily integrity.

The single most important influence on the evolution of the English common law of property was the set of customs at the time of the Norman Invasion (1066) and their modification by William the Conqueror and subsequent English kings.  The Nobles and later the property-owning non-noble classes struggled to vindicate their property rights by advocating restoration of the pre-Conquest rules.  Their political struggles are illustrated by several constitutional documents that include the Coronation Oath of Henry I (1101), Magna Carta (1215), and the Summons of the Model Parliament (1295).

Other models of political economy have also supported the contemporary erosion of individual property rights.  One of these is corporatism or statism (its slightly misleading American name), which is a doctrine that favors a society organized around large, corporate or corporatist bodies such as businesses, trade associations, guilds, and unions, all attempting to control government.  Classical corporatism had its roots in ancient Rome, further developed in medieval Europe, and emerged in its modern form in 19 TH century Europe.  In its extreme or deviant expression, fascism, corporations become the principal organs of state policy and administration.  Benito Mussolini in Italy (1883 - 1945) was the foremost proponent of fascism in the 20 TH century.

Despite the U.S. Supreme Court's 1935 declaration that major components of the National Industrial Recovery Administration [NIRA] were unconstitutional, the administrative and policy legacies of corporatism have been with us ever since.  Some of thoe legacies found renewed expression in 2008 and 2009 with the various government takeovers and bailouts of financial institutions that accompanied this nation's ongoing mortgage and financial crisis.

As applied to property rights, the main effect of utilitarianism usually is to support the notion that there can or should be "beneficial regulation" of ownership or use of property, which almost inevitably turns into increased levels of state interference in property rights.

The main objectives of this study are both to inform the public of the traditions that underlay the development of modern American property rights and to counteract contemporary trends that seem to be moving away from fundamental notions of individual property rights.  The alternative --- a state centered idea of property rights that increasingly dominates the American political landscape --- violates traditional constitutional understandings and is directly harmful to individuals and to the communities in which they live and work.  A knowing and deliberate abandonment of constitutional understanding might be defensible as public policy, but the defense weakens to the extent that the abandonment is unknowing and unintended.

This study does not claim to reflect the only possible view of the origins and early theories of property rights in biblical and classical times, and it is not intended to be a comprehensive assessment of those origins and theories.  Still, the study is a fairly representative survey of the particular lines of development that eventually led up to the classical liberal theories of property rights in Western Europe and the United States.

By Walker F. Todd, an ongoing review by Coyote Howlin I [CHI]...   1pub May 1, 2013

~to be continued~

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