Property Law in a Time of Transformation: The Record of the United States

Abstract

Over the century-long period from just before the American Revolution until the end of the Civil War the United States underwent a profound transformation, beginning with its political break from Britain and expanding rapidly to embrace political and economic liberalism and elements of equality and social justice. Importantly, this transformation was aided by fundamental changes to the received English common law of property. Several property-law changes enhanced economic freedom and facilitated industrialization. Other legal changes diminished the power of landowners to dominate the poor socially and economically. Yet further reforms stabilized land tenure and expanded easy public access to natural resources, on private as well as public lands. Along the way, American courts embraced a more instrumental conception of law and carved out greater space for legislatures to regulate uses of property. Many of these changes involved substantial shifts of wealth, yet none was accompanied by significant compensation. In its transformation, South Africa is differently situated from the US of two centuries ago. Nonetheless, the American record may prove instructive, both in its particulars and as an example of how a developing nation, committed to private property and the rule of law, can nonetheless reform the legal elements of ownership without diminishing the institution’s stability and widespread benefits.

Keywords: Property, property theory, legal history, history of property, American Revolution, land tenure, public access, eminent domain

JEL Classification: K11, N41, N51