Property (I)

Warning: People who are less than eighteen years of age, libertarians, theorists, and fans of De Soto are strongly warned that the following post may contain material that is unsuitable to their weak disposition.

From E.P.Thompson's 'Customs in Common':

Custom binds the land. Custom is at the interface of law and practice; at one end: village by-laws enforceable at law (manorial courts); in the middle, sustained memory and oral tradition (parish church) and at the other extreme, undocumented, unwritten beliefs and norms.

'Agrarian custom was never fact [but] "habitus"-a lived environment comprised of practices, inherited expectations, rules which determined limits to usages and disclosed possibilities, norms and sanctions...'

'Already in the 13th century common rights were exercised according to "time-hallowed custom". Customs are defined to be law or right not written; which being established by long use and the consent of our ancestors, hath been and is daily practised. Common right usage and the oral traditions as to these rights, is as specific and local as are the geographic features.

But is such an unsystematic approach sustainable against the homogenizing forces of the state, the unification of wills? Also, in the vein of Platteau, demographic changes and economic pressures (growing demand for fuels, building materials, the marketable value of quarries, gravel pits, sand-pits, pat bogs) may mean the economic benefits of limited trades (greater information, lower enforcement costs) are outweighed by the possibility of more trades.

'In a parallel movement, the law was conforming with an age of agricultural "improvement" and was finding claims to coincident use-rights to be untidy. So also did the modernising administrative mind.'

The rules of the game are changed; the market is an instituted process. To look at the markets as a 'natural' process is to be at best naive, at worst, ideologically infected.

'Over time and over space the users of commons have developed a rich variety of institutions and community sanctions which have effected restraints and stints upon use.'

'So that custom may also be seen as a place of class conflict, at the interface between agrarian practice and political power' (the enclosure movement, for example)

'The tenurial system and the theory of the law converts communally held land into the private property of the landlord.' So, use-rights are supplanted by the law and tenancy (right). This is a historical process, not a 'natural' development. 'Yet within this rationality there was evolving the ulterior rationality of capitalist definitions of property whereas rights of grazing over pasture and waste were perhaps the oldest element in the common field system , descended from more extensive rights enjoyed from time immemorial, which Anglo-Saxon and Norman invaders did not institute but regulated.'

'The right of use had been transferred from the user to the house or the site of an ancient messuage. It became not a use but a property..a hardening and concretion of the notion of property in land, and a re-ification of usages into property which could be rented, sold...'

'Usage and rights get attached to an office or place and are then regarded as "things" that could be sold, transferred. Reason now has more to do with the political economy of improvement than continuity, tradition, reasonable customs. the law itself may have been an instrument of class expropriation. '

'By raising to a reason at law the question of "improvement" it was possible to effect a marriage between legal terms of art and the imperatives of capitalist market economy, the rationality of which is to exclude from view both labour and human need in favour of the "natural justice" of profits which have become a reason at law.'

'The nature of property [now] imports an exclusive enjoyment..and how could enjoyment be exclusive if it did not command the power to exclude from property's physical space the insolent lower orders?'

'It is even possible, without sentimentality, to suppose community norms, expectations and senses of neighbourhood obligations, which governed the actual usage of commons; and such usages, practised "time out of mind,"were fiercely held to be rights.