Theoretical Inquiries in Law (2009)
24 Pages Posted: 7 Dec 2007 Last revised: 15 Jul 2014
The bogeyman of institutions and theories that make a place for community in property law is the "Blackstonian conception" of property, based on Blackstone's famous identification of property with "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe."
Yet, as anyone who has even skimmed Blackstone's Commentaries quickly realizes, it is clear that the great expositor of the common law did not believe that this absolutist and individualist conception squared with the actual institution of property found in English law. Replete with descriptions and justifications of doctrines that recognized and enforced a complex web of individual and community interests in land and other resources, Blackstone's account seems much closer to the "bundle of rights" approach popularized by the American legal realists than to the "absolute dominion" view associated with his name. Why has exclusive dominion as a model for property, then, come to be associated with Blackstone, of all people?
This Article seeks, first of all, to explain why Blackstone would first characterize property as "sole and despotic dominion," and then go on to illustrate, over several hundred pages, the falsity of this definition. The primary goal of the paper, though, is to examine the ways in which Blackstone was invoked by later jurists as authority for property-law propositions. In particular, the Article examines how Blackstone has been cited by English and American courts and writers, whether in connection with the "sole and despotic dominion view" or rather in support of doctrines more in keeping with a more complex view of property. Finally, it proposes an answer to the question set out in the title, identifying the historical context and motivations for the identification of the absolute, individualistic view of property with Blackstone in particular.
Keywords: Blackstone, property, private property, absolute dominion, sole and despotic dominion, bundle of rights
JEL Classification: B12, B30, B31, K10, K11, K23, K32, N51, N53
Suggested Citation: Suggested Citation
Schorr, David, How Blackstone Became a Blackstonian. Theoretical Inquiries in Law (2009) . Available at SSRN: https://ssrn.com/abstract=1066621