Saturday, December 8, 2007

Schorr: Who Said Blackstone Was a Blackstonian?

David Schorr, Tel Aviv University, has posted a new paper, Who Said Blackstone Was a Blackstonian? Here's the abstract:
Based on Blackstone's famous characterization of property as 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, Blackstonian property has become shorthand for a conception of property as individual, exclusive and absolute dominion. Yet the anointment of Blackstone as the symbol of property absolutism is odd; his characterization of property as sole and despotic dominion is largely at odds with his own exposition of the property law of England. Property in the Commentaries was full of complex arrangements of rights, creating communities with respect to specific assets and recognizing the rights of the community in what was nominally private property. Why has exclusive dominion as a model for property, then, come to be associated with Blackstone, of all people?
This paper begins by surveying the Commentaries, revealing the Blackstone placed property's complexity, and the typical lack of an owner with sole and despotic dominion over an external thing, front and center. Several possible explanations are offered to explain why Blackstone would first characterize property as sole and despotic dominion and give several hundred pages of illustrations undercutting this definition. It shows how Blackstone was long associated in the property context with doctrines portraying property as a bundle of rights, and how only in recent times, particularly in the United States, has Blackstone come to be associated with sole and despotic dominion. Finally, it offers an explanation for the new popularity of Blackstone as the avatar of absolute dominion.

1 comment:

  1. Gee, what do Originalists have to say about Schorr's approach? Originalists seem to prefer selective quoting that might be just a tad out of context. Prof. Horwitz in his "The Transformation of American Law 1780-1860" points to certain inconsistencies on Blackstone's part.

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