Hume’s Conventionalist Account of Property and the History of English Land Law

Abstract

The central theoretical assumption of English land law (and land law in related legal systems) that all rights in land are derivative of the Crown’s rights does not provide a full account of the origins of rights in land. ‘Liberal’ theories of the origin of property rights, which see property rights as something that emerged independently of state action, retain considerable explanatory value. The paper begins with a discussion of the principal features of David Hume’s account of the origins of property. The paper then engages with historical scholarship that shows that (1) it is a mistake to see the medieval English hierarchy of administration as implying a hierarchy of property rights ultimately derived from the Crown’s ‘title,’ and (2) the idea that communal medieval agricultural practices were super-imposed upon a pre-existing system of individual property rights is plausible.

I. Introduction

Accounts of the origin of property rights tend to fall into one of two classes. First, there are liberal or individualistic accounts, under which property emerges as a practice wherein individual persons refrain from interfering with other persons’ possession of things. Under such accounts, property is a social institution that is antecedent to the state, the state’s role being merely to regularise the enforcement of property (and other) rights and, perhaps occasionally, to adjust the scope of such rights where doing so would advance the interests of the community generally. The accounts of the origin of property given by the leading figures of the Enlightenment, John Locke, David Hume, and Immanuel Kant, were all liberal accounts, although there are important differences between these accounts. Secondly, there are statist accounts, under which it is assumed that property and other legal institutions are deliberate creations of the state. ¹ Property, being a creation of the state, can be moulded in just about any way that would advance the collective interests of the community. Without the state, property would be completely absent. Under liberal accounts of property, by contrast, property rights might be insecure or precarious in the absence of a state, but the concept of property would still exist, in the sense that property rights would be intelligible as matters of interpersonal justice. ²

The liberal accounts appear to be at their weakest, as accounts of English property law, in relation to land. ³ The historical origins of land ownership in England lie behind the curtain of the medieval ‘feudal’ system, in which, as Pollock and Maitland explained, it was supposed that the person entitled to the use of land held that right ultimately by way of grant from the King:

The person whom we may call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all the others off it, holds the land of the king either immediately or mediately. ⁴

In territories that were colonised by Great Britain, such as Australia and Canada, the central theoretical assumption of the English tenurial system lingered on in the form of the Crown’s claim to all of the land and the notion that all individual rights in land were the product of grants by the Crown to individuals, so that every person’s title, with the exception of native title rights, is ultimately traceable to the Crown. ⁵ The theory of tenure contemplates an intervention of the state, at a particular time in history, that erased everything that preceded it, so it sits better with a statist account of the origins of property than with a liberal account.

This paper argues that the statist account that is implicit in the ‘feudal’ theory is not a full and accurate account of the origins of rights in land in the English legal system and that there is a historically plausible liberal account of the origins of those rights. That alternative account is consistent with Hume’s theory of the origins of property. Part II of the paper describes the principal features of Hume’s account of the origins of property, namely that property is conceived as practice or convention, as antecedent to the state, and as a matter of commutative justice (as opposed to distributive justice). Brief comparative references are made to the accounts of Locke and Kant. Hume’s account differs from those of Locke and Kant in avoiding the temptation to provide a universal moral justification for property rights and, instead, demonstrating that a system of property rights is a “historical necessity” ⁶ in large and complex societies. While such an account is vulnerable to being undermined by the facts of history, it is also potentially a stronger account to the extent that the historical record reveals land use practices that are consistent with it. Part III of the paper engages with historical scholarship in order to challenge the notion that a complete account of the origins of English land law can be given in terms of rights derived from the Crown’s ultimate title. Land use practices at village level predated the establishment of the formal feudal system that was established after the Norman conquest and, to a large extent, operated outside of it. ⁷ The Norman feudal settlement reflected the Norman’s “preoccupation” with military service. ⁸ As we shall see, a variety of customary arrangements that had evolved over a long period of time featured much more prominently than the formal feudal institutions did in the lives of those who actually tilled the land. Hume’s idea of property rights as conventions that evolve in response to historical circumstances, while it is especially vulnerable to the charge of being ahistorical when confronted with the long-accepted feudal account of medieval landholding, turns out to be a more satisfying account when considered in the light of more recent historical scholarship.

II. Hume’s Account of the Origins of Property

Property as Practice and Convention

Hume, in Book II of A Treatise of Human Nature, defined property as “such a relation betwixt a person and an object as permits him, but forbids any other, the free use and possession of it, without violating the laws of justice and moral equity.” ⁹ In this definition, Hume emphasised one person’s freedom to use a thing and other people being restrained from using it. A full account of why property ought to exist and of its character had to wait until Book III of the Treatise. Hume’s account of the origin of property began with the observation that, of the three basic types of goods of which humans are possessed, i.e. “the internal satisfaction of our mind, the external advantages of our body, and the enjoyment of such possessions as we have acquir’d by our industry and good fortune,” only the last-mentioned of these are “both expos’d to the violence of others, and may be transferred without suffering any loss or alteration.” ¹⁰ Possessions are additionally subject to the problem of scarcity—in Hume’s words, “there is not a sufficient quantity of them to supply every one’s desires and necessities.” ¹¹ The remedy was to put possessions “as far as possible, on the same footing with the fix’d and constant advantages of the mind and body.” ¹² This was not achieved by explicit agreement among all concerned but by way of what Hume called a ‘convention’:

It is only a general sense of common interest; which sense all the members of the society express to one another, and which induces them to regulate their conduct by certain rules. I observe, that it will be for my interest to leave another in the possession of his goods, provided he will act in the same manner with regard to me. He is sensible of a like interest in the regulation of his conduct. When this common sense of interest is mutually express’d, and is known to both, it produces a suitable resolution and behaviour.… Nor is the rule concerning the stability of possession the less deriv’d from human conventions, that it arises gradually, and acquires force by a slow progression, and by our repeated experience of the inconveniences of transgressing it. On the contrary, this experience assures us still more, that the sense of interest has become common to all our fellows, and gives us a confidence of the future regularity of their conduct: And ‘tis only on the expectation of this, that our moderation and abstinence are founded. ¹³

From the convention that enables the stability of possessions, the ideas of justice and injustice arise. Property is that which cannot be taken from a person without doing an injustice.

For Hume, justice was not a matter of public interest. Public interest was “only connected with [justice], after an artificial convention for the establishment of [the rules of justice].” ¹⁴ Among Hume’s reasons for this conclusion was that public interest “is a motive too remote and too sublime to affect the generality of mankind, and operate with any force in actions so contrary to private interest as are frequently those of justice and common honesty.” ¹⁵ Hume envisaged, rather, that concern for others exists in a series of concentric circles and becomes weaker the further one moves from the centre—so that “[a]n Englishman in Italy is a friend: A European in China; and perhaps a man wou’d be belov’d as such, were we to meet him in the moon … [b]ut this proceeds only from the relation to ourselves.” ¹⁶ If public interest cannot be the basis for the rules of justice, then the argument that private benevolence provides the basis is even weaker. Private benevolence “is, and ought to be, weaker in some persons, than in others … [a]nd in many, or indeed in most persons, must absolutely fail.” ¹⁷ The conclusion that justice is a matter of social convention is presented in the following way:

[W]e have naturally no real or universal motive for observing the laws of equity, but the very equity and merit of that observance; and as no action can be equitable or meritorious, where it cannot arise from some separate motive, there is here an evident sophistry and reasoning in a circle. Unless, therefore, we will allow, that nature has establish’d a sophistry, and render’d it necessary and unavoidable, we must allow, that the sense of justice and injustice is not deriv’d from nature, but arises artificially, tho’ necessarily from education, and human conventions. ¹⁸

Hume thought that an act could be just even though the effect of the act was contrary to the public interest, such as where a person of “beneficent disposition” returns what has been taken from “a miser, or a seditious bigot.” ¹⁹ Hume’s argument was that a system of rules of property was necessary for the maintenance of society:

But however single acts of justice may be contrary, either to public or private interest, ‘tis certain, that the whole plan or scheme is highly conducive, or indeed absolutely requisite, both to the support of society, and the well-being of every individual. ‘Tis impossible to separate the good from the ill. Property must be stable, and must be fix’d by general rules. Tho’ in one instance the public be a sufferer, this momentary ill is amply compensated by the steady prosecution of the rule, and by the peace and order, which it establishes in society. And even every individual person must find himself a gainer, on ballancing the account; since, without justice, society must immediately dissolve, and every one must fall into that savage and solitary condition, which is infinitely worse than the worst situation that can possibly be suppos’d in society. When therefore men have had experience enough to observe, that whatever may be the consequence of any single act of justice, perform’d by a single person, yet the whole system of actions, concurr’d in by the whole society, is infinitely advantageous to the whole, and to every part; it is not long before justice and property take place. ²⁰

As Corey Venning has explained, history “indicates why certain ‘habits and customs,’ formalized in institutions are—allowing of course, for variation in circumstances—preferred to others.” ²¹ The rules of property are restraints, which people learnt to place upon themselves in order to make life in society possible. By a process of “cultural transmission,” ²² succeeding generations of persons learnt to behave in these ways, so society persisted.

Hume’s conventionalist account of the origins of property is open to the possibility that not every society would adopt the institution of property. Hume contemplated two rare sets of circumstances in which the institution of property would not arise. Property arises “as a remedy to some inconveniences, which proceed from the concurrence of certain qualities of the human mind with the situation of external objects,” the qualities being “selfishness” and “limited generosity” and the situation of external objects being their “easy change” and “scarcity in comparison of the wants and desires of men.” ²³ Accordingly, if there were a situation in which people were so unselfish as to be willing to share everything they had or the things that humans required for a comfortable life were so plentiful and easily acquired that there would be no competition between persons as to their acquisition, the idea of justice (consisting of not interfering with the possession of others) would be “useless.” ²⁴ Hume associated this idea with the idea that justice was artificial rather than natural:

[S]ince any considerable alteration of temper and circumstances destroys equally justice and injustice; and since such an alteration has an effect only by changing our own and the publick interest; it follows, that the first establishment of the rules of justice depends on these different interests. But if men pursu’d the publick interest naturally, and with a hearty affection, they wou’d never have dream’d of restraining each other by these rules; and if they pursu’d their own interest, without any precaution, they wou’d run head-long into every kind of injustice and violence. These rules, therefore, are artificial, and seek their end in an oblique and indirect manner; nor is the interest, which gives rise to them, of a kind that cou’d be pursu’d by the natural and inartificial passions of men. ²⁵

A distinction can be made between the notion that property is necessary, in the sense that nearly all societies have found it necessary to adopt conventions of property in order to secure and maintain internal peace, and the idea that a particular set of property rules is natural, universal, or immutable. Hume did not argue that a particular set of property rules is inscribed in human nature or that any community that engaged in sustained reflection would consciously decide to adopt that set of rules. Hume, like his contemporary, Adam Ferguson, thought of legal institutions as “establishments, which are indeed the result of human action, but not the execution of any human design.” ²⁶

As Lawrence A. Scaff has observed, Hume was concerned with “constitutive rules,” that is, “the rules that are inseparable from political society itself” and, without which, “our world would lack all knowledge of property, obligation, law and justice,” ²⁷ rather than “regulative rules.” ²⁸ Where a society adopts the institution of property, the rules that defined property would not necessarily be identical to those adopted in other societies. Hume seems to have thought that rules allowing the acquisition of property rights by occupation, transfer by consent, by succession, and in certain other ways, were essential to the idea of property. ²⁹ At the same time, he denied that any particular set of rules on those matters could be logically derived from the convention that made society possible. For example, not all societies would be expected to adopt a rule that transfer of title to land must be by way of deed. Alan Ryan has observed that Hume left a large part of the detail of a system of property to the ‘imagination’:

It was, for example, natural to associate the offspring with the parent, and therefore natural to adopt both the rule that the owner of a domestic animal owned the animal’s young, and the rule that the owner’s children had first claim on their parent’s property. Imagination was not a wholly fixed quality of the mind; it obeyed the rules of the association of ideas, and what it came up with would depend on circumstances. Hume held that utility explained the existence of rules about property, but the imagination explained the local details of such rules. ³⁰

At this point, it can be observed that Hume’s argument in favour of the institution of property is, in an important respect, different from John Locke’s argument. Locke famously began his account of the origin of property with the observation that the earth and everything in it belonged to humanity in common, so that property did not exist in the state of nature. Property arose on the basis that “there must of necessity be a means to appropriate them [i.e. naturally occurring things] some way or other before they can be of any use, or at all beneficial to any particular Man.” ³¹ Each person was entitled to the product of the exertion of their labour and, accordingly, where that labour is exerted in appropriating something from the state of nature to the person’s use, that act “excludes the common right of other Men.” ³² Locke used the idea of a person’s labour to provide a moral justification for that person’s property right in respect of the thing with which they have exerted labour. Hume, by contrast, began by identifying that a social convention regarding the use of possessions and non-interference with possessions of others is necessary “for the achievement of a reasonable degree of happiness” ³³ and that any social group will need to adopt such a convention “in order to cut off all occasions of discord and contention.” ³⁴

The consequences of general compliance with social conventions played a crucial role in Hume’s thinking, but Hume should not be thought of as a proto-utilitarian, at least not in the sense that Jeremy Bentham was a utilitarian. A utilitarian, in instances where a convention would require “some persons to conform against their own interests, given the conformity of others … appeals to an obligation based directly on the standard of total well-being.” ³⁵ Hume, by contrast, supposed that a duty to obey arose “[o]nly when everyone may reasonably expect to benefit.” ³⁶ In other words, the threshold for the justice of any rule or practice is not a matter of the aggregate utility of an institution but whether “each person reasonably expects that rule or practice to be useful to himself.” ³⁷ Moreover, Hume did not propose that an enquiry as to the utility of individual practices be conducted antecedently to their adoption. General commitment to practices such as refraining from interfering with the possessions of others is reinforced by experience. Utility plays a role here, in the sense that general observance of a convention of not interfering with the possessions of others tends to increase the welfare of all of those who observe the convention by the reduction of the number of occasions of discord and contention among them. This effect reinforces the observance of the convention. Nevertheless, the convention is not adopted because that increase in welfare is a foreseen consequence of the observance of the practice. The convention “arises gradually, and acquires force by a slow progression, and by our repeated experience of the inconveniences of transgressing it.” ³⁸ Once everyone enters into the convention and has thereby “acquired a stability in his possessions,” the ideas of justice and injustice, as well as property, right, and obligation, become known to them. ³⁹ Rights and obligations are meaningful and morally forceful on account of antecedent convention. The possibility of devising individual rules of conduct whose application can be foreseen to produce a utility maximising allocation is foreign to Hume’s thought. ⁴⁰ Hume’s conventionalist thesis leaves open the possibility that, where the social peace that has hitherto underpinned the persistence of the prevailing system of norms breaks down, pressure for the revision of those norms will arise. Nevertheless, the Humean approach to institutions tends towards institutional conservatism, in that there is a strong presumption in favour of longstanding social and legal institutions. ⁴¹

Property is Antecedent to the State

Hume contemplated that some very small societies could survive for a time without formal government. The rules of justice would be sufficient to maintain peace within the group, at least in the absence of any external threat. Hume thought that the native Americans were an example of this:

This we find verified in the American tribes, where men live in concord and amity among themselves without any establish’d government; and never pay submission to any of their fellows, except in time of war, when their captain enjoys a shadow of authority, which he loses after their return from the field, and the establishment of peace with the neighbouring tribes. This authority, however, instructs them in the advantages of government, and teaches them to have recourse to it, when either by the pillage of war, by commerce, or by any fortuitous inventions, their riches and possessions have become so considerable as to make them forget, on every emergence, the interest they have in the preservation of peace and justice. Hence we may give a plausible reason, among others, why all governments are at first monarchical, without any mixture and variety; and why republics arise only from the abuses of monarchy and despotic power. ⁴²

Whether or not Hume’s observations about native American society were correct, the passage shows that Hume thought that the state originated in the need to repel external threats but that, once established, it could be useful in other ways.

In larger societies, whose members are not all personally known to one another, there is, in addition to the problem of external threats, the problem of the tendency of individuals to have a stronger attachment to their own interests and the interests of those personally known to them than to the interests of those who are situated more remotely to them. People are tempted to act unjustly in so far as those more closely situated interests are advanced. People tend to “yield to the sollicitations of our passions, which always plead in favour of whatever is near and contiguous.” ⁴³ Government is able to remedy this situation:

The only difficulty, therefore, is to find out this expedient, by which men cure their natural weakness, and lay themselves under the necessity of observing the laws of justice and equity, notwithstanding their violent propension to prefer contiguous to remote … the utmost we can do is to change our circumstances and situation, and render the observance of the laws of justice our nearest interest, and their violation our most remote. But this being impracticable with respect to all mankind, it can only take place with respect to a few, whom we thus immediately interest in the execution of justice. These are the persons, whom we call civil magistrates, kings and their ministers, our governors and rulers, who being indifferent persons to the greatest part of the state, have no interest, or but a remote one, in any act of injustice; and being satisfied with their present condition, and with their part in society, have an immediate interest in every execution of justice, which is so necessary to the upholding of society. Here then is the origin of civil government and allegiance. ⁴⁴

It is clear that, in Hume’s opinion, the rules of justice were antecedent to the establishment of government and government came into existence to ensure a wider and more consistent enforcement of those rules. Accordingly, the primary role of the state, apart from occasional repulsion of an external threat, is to regularise the enforcement of the rules of justice. This will include the settlement of controversies as to the interpretation of the rules of justice:

As violent passion hinders men from seeing distinctly the interest they have in an equitable behaviour towards others; so it hinders them from seeing that equity itself, and gives them a remarkable partiality in their own favours. This inconvenience is corrected in the same manner as that above-mention’d. The same persons, who execute the laws of justice, will also decide all controversies concerning them; and being indifferent to the greatest part of the society, will decide them more equitably than every one wou’d in his own case. ⁴⁵

Hume’s view of the relationship between law and the state is similar to that of Immanuel Kant. Kant said that the concept of property depends upon an idea of “intelligible possession,” so “that is mine which I bring under my control … which, as an object of my choice, is something that I have the capacity to use … which, finally, I will to be mine (in conformity with the idea of a possible united will).” ⁴⁶ As Allan Beever has explained, for Kant, “property relations arise when individuals act in certain ways with respect of unowned objects, acts which generate obligations in others to respect the actor’s rights in the object.” ⁴⁷ While the idea that a person’s possession of a thing is just is intelligible—in the sense that it can be seen to give rise to a moral claim that others refrain from interfering with that possession—in the absence of a state, property rights can exist only “provisionally.” ⁴⁸ Kant explained that “a unilateral will cannot serve as a coercive law for everyone with regard to possession that is external and therefore contingent” and “it is only a will putting everyone under obligation, hence only a collective general (common) and powerful will, that can provide everyone this assurance.” ⁴⁹ In other words, a state is necessary in order to provide an assurance that property rights will generally be enforced, so that a just possessor will have a reasonable assurance of continuing enjoyment of that possession. ⁵⁰

While both Kant and Hume thought that the regularisation and enforcement of rights was the core rationale for states, ⁵¹ Hume contemplated that a state might be useful for other reasons. Certain common projects for the benefit of the entire community, the possibility and feasibility of which had been hidden from view, were now possible:

Two neighbours may agree to drain a meadow, which they possess in common; because ‘tis easy for them to know each others mind; and each must perceive, that the immediate consequence of his failing in his part, is, the abandoning the whole project. But ‘tis very difficult, and indeed impossible, that a thousand persons shou’d agree in any such action; it being difficult for them to concert so complicated a design, and still more difficult for them to execute it; while each seeks a pretext to free himself of the trouble and expence, and wou’d lay the whole burden on others. Political society easily remedies both these inconveniences. Magistrates find an immediate interest in the interest of any considerable part of their subjects. They need consult no body but themselves to form any scheme for the promoting of that interest … Thus bridges are built; harbours open’d; ramparts rais’d; canals form’d; fleets equip’d; and armies disciplin’d; every where, by the care of government. ⁵²

This optimistic outlook concerning government was fairly quickly tempered by a recognition that government, once established, is capable of acting contrary to the public interest in its establishment. Hume agreed with Locke, that a government’s abuse of its position could dissolve its subjects’ allegiance to it, but Hume’s argument as to why this was so differed somewhat from that of Locke. While Locke located the origin of civil government’s authority in the consent of the governed, ⁵³ Hume argued that, since “a promise itself arises entirely from human conventions, and is invented with a view to a certain interest,” it was necessary to look for an “interest more immediately connected with government” as the basis for governmental authority. ⁵⁴ The relevant interest is “the security and protection, which we enjoy in political society, and which we can never attain, when perfectly free and independent.” ⁵⁵ Government loses its entitlement to the allegiance of the governed when this interest is neglected:

When men submit to the authority of others, ‘tis to procure themselves some security against the wickedness and injustice of men, who are perpetually carried, by their unruly passions, and by their present and immediate interest, to the violation of all the laws of society. But as this imperfection is inherent in human nature, we know that it must attend men in all their states and conditions; and that those, whom we chuse for rulers, do not immediately become of a superior nature to the rest of mankind, upon account of their superior power and authority. What we expect from them depends not on a change of their nature but of their situation, when they acquire a more immediate interest in the preservation of order and the execution of justice.… [W]e may often expect, from the irregularity of human nature, that they neglect even this immediate interest, and be transported by their passions into all the excesses of cruelty and ambition. Our general knowledge of human nature, our observation of the past history of mankind, our experience of present times; all these causes must induce us to open the door to exceptions, and must make us conclude, that we may resist the more violent effects of supreme power, without any crime or injustice. ⁵⁶

In this way, both the origins of government and the exceptions to the obligation of allegiance are grounded in the same interest. Since the general interest in security and social peace “first produces obedience to government, the obligation to obedience must cease whenever the interest ceases, in any great degree, and in a considerable number of instances.” ⁵⁷ Venning has observed that, in Hume’s thought, security of property, limited government, and social stability are interconnected. In Hume’s account of the authority of the state, “there is not the slightest hint that the property of Englishmen is ultimately the property of the English sovereign, ultimately open to invasion and disposal by the sovereign for purposes of state as he or she sees fit.” ⁵⁸

Property as Commutative Justice

It has previously been observed that Hume’s definition of property emphasises one person’s freedom to use something and the restraint upon other persons from using it. ⁵⁹ This definition has a strong relational aspect to it. Property is concerned with each person’s obligation to abstain from interfering with each other person’s possession of things. The central idea is commutative justice. Since, for Hume, each person’s property “is nothing but those goods, whose constant possession is established by the laws of society,” people act justly to the extent that that their possession of things was not acquired in ways that infringe those laws. A person who acquires possession of a thing by, for example, first occupation, or by transfer, by consent, or by a testamentary gift, acts justly. A person who acquires possession of the thing by theft does not act justly. While, as previously remarked, we may expect there to be some variation between societies as to the precise content of the rules that determine property in things, it will always be the justice or injustice of the actions of the acquirer in acquiring the thing that counts. A person who commits no injustice against another in acquiring possession of the thing is in just possession of the thing. Moreover, the general rule that possession must be stable “is not apply’d by particular judgments, but by other general rules, which must extend to the whole society, and be inflexible either by spite or favour.” ⁶⁰ If the utility of particular allocations is what is sought, this could be achieved only by calculating the benefits that can be expected to flow over time to the community generally from the particular allocation. Of course, this would involve considering so many factors, including the effects of future events that are not readily predictable, as to be out of reach of those who have the task of making the allocation. The rules of which Hume spoke must be rules about the rightness or wrongness of one individual’s conduct towards another. The rules must express a common and inherited sense of commutative justice rather than the belief that a desirable or ‘just’ allocation or other socially desirable outcome will follow from the application of the rule. In the property context, a person’s entitlement to a thing is to be judged by reference to rules relating to the individual person’s conduct in acquiring possession of the thing.

Hume’s account of property, in seeing just possession as a matter of commutative justice, aligns with Locke’s and Kant’s accounts. Locke’s labour justification of property rights sees property as arising from the just appropriation of things. ⁶¹ One who appropriates something from nature holds that thing justly to the extent that they have acquired it by just means. As against all others who have not appropriated the thing by exerting their labour, the appropriator is justly entitled to the thing. As Beever has observed, ‘just holding’ is not a matter of a distribution that all agree to be just but of the appropriator’s just action in taking the thing from the state of nature in circumstances in which all other persons retain an opportunity to engage in similar actions in respect of other things. ⁶²

Commutative justice is also central to Kant’s account of property. Kant gave both a ‘nominal’ and a ‘real’ definition of property. The ‘nominal’ definition states that, “that outside me is externally mine which it would be a wrong (an infringement upon my freedom which can coexist with the freedom of everyone in accordance with a universal law) to prevent me from using as I please.” ⁶³ The ‘real’, in the sense of more concrete and practical, definition is that “something external is mine if I would be wronged by being disturbed in my use of it even though I am not in possession of it (not holding the object).” ⁶⁴ Both definitions contemplate that property is relational in the sense that an injustice occurs when one person interferes with another person’s rightful possession and use of a thing.

It can be seen then that Locke, Kant, and Hume were united in understanding property rights in terms of commutative justice. Hume differed from the others in seeing the emergence of property as a matter of necessity in complex societies rather than as something that could be justified from first principles, either in terms of a labour justification, as in the case of Locke, or in terms of a universal principle of right, as in the case of Kant. Hume’s reliance upon historical necessity makes his account vulnerable to the historical record. Nevertheless, it is simultaneously more compelling than those of Locke and Kant to the extent that the historical record suggests that the institutions of property evolved over a long period of time and were the products of experimentation.

III. Property Rights, Medieval Administration, and Common Fields

As outlined in the previous section, a liberal account of property is one under which property is seen as a practice whereby individual persons refrain from interfering with other persons’ possession of things. Property might be seen as morally justified from first principles (as in the cases of Locke and Kant) or as a practice which emerges gradually and persists because it demonstrates its worth (as in the case of Hume). Either way, the state is not the creator of property rights. The state merely regularises the enforcement of those rights. It may occasionally refine particular rules of property in the interests of certainty or change them to the extent that doing so would further the public interest. Property, so understood, is a matter of commutative justice as between the holder of a property right and each and every other person in the sense that a person’s claim to possession of a thing is just to the extent that possession was obtained rightfully.

If Hume’s aim was, as Scaff has suggested, to put aside speculative principles as to the establishment of a system of property rights in favour of “an ‘empirical’ appreciation of the historical and social nature of property,” ⁶⁵ whether Hume’s account of property ultimately succeeds (and is, consequentially, more appealing than those of Locke and Kant) is a question of whether it can be seen as consistent with historical accounts of the exercise of property rights. As previously observed, the most serious challenge to the historicity of Hume’s conventionalist account of property arises in relation to land.

As noted previously, medieval English land law is widely understood in terms of a pyramidical structure in which the Crown was at the apex and everyone else who held rights to use and possess land occupied positions at various levels in the pyramid. It is believed that each rightholder, in return for the grant of those rights, owed duties either to a person who was one level higher in the pyramid or to the Crown directly. The system has the appearance of one that was organised by a central authority and imposed on a ‘top down’ basis. In England and the former British colonies in which English land law became established, the theory that all land is held as a tenancy from the Crown persists, even if the practical consequences of this have become insignificant. ⁶⁶ If this were the whole story, that would be a significant challenge to the credibility of Hume’s account of the origin of property, at least in relation to land. Nevertheless, recent scholarship questions whether the feudal account of land holding in medieval England is the whole story.

Susan Reynolds has argued that, in medieval England, the hierarchy of property and the hierarchy of government administration, in relation to military service, payment of other dues and resolution of disputes, were distinct from each other. ⁶⁷ Reynold’s argument has several elements. First, the “frequent notes” in the Domesday Book concerned with whether persons of non-noble status were free to alienate their land suggests that, in the aftermath of the Norman Conquest, rights to alienate were frequently exercised, certainly more so than in France during the same period. ⁶⁸ The “important point” that Reynolds wished to make was that she had not found evidence that “heritable grants from kings or lay lords normally created what were perceived as permanent layers of rights.” ⁶⁹ Secondly, the fact that a person was subject to a lord in matters of administration did not prevent that person from having rights in respect of land that could be vindicated against others, including the lord. Reynolds said that lords “did not usually come into disputes as sources of rights in land but as figures of power or authority who might protect the rights of those subject to them,” so that “being subject was a matter of political, governmental authority, not of a relation that normally derived from a grant of land or implied reduced rights in land.” ⁷⁰ Reynolds found no evidence that “anyone who gave or sold land to be held from him was invariably assumed to have jurisdiction in disputes about it.” ⁷¹ Thirdly, the Domesday Book constantly referred to “the predecessors from whom the holders of property in 1086 claimed to derive their titles,” which suggests a theory of title in which the title that a person had depended on what the person’s predecessor had to give. ⁷² This is inconsistent with the notion that all land really belonged to the King or that all title was derived from that of William the Conqueror. Even where a grant was made by the King, the King could give only “what it had been lawful for him to confiscate.” ⁷³

The bottom line of Reynolds’ argument was that “English property law never displayed the contrast between fief and alod that is presupposed by ideas of classic feudalism.” ⁷⁴ The idea of a hierarchy of property rights “only came to be articulated during the twelfth century” and may be “misleading,” as “the top layer did not have most rights”: ⁷⁵

Most of the rights of property, including the fundamental rights to use, management, and receipt of the income, were enjoyed, as they were elsewhere, by those at the lowest layer above that of the unfree peasants. Except in the case of property held by military service by heiresses or minor heirs, the rights of a lord in the layer above were restricted to certain dues and services: the king, of course, did better, but it still remains true that more rights of property belonged to those who came to be called tenants in demesne than to either the king or any other lord. ⁷⁶

The picture of medieval land holding painted by Reynolds, then, is one of government imposing obligations on top of an existing property rights system, rather than one of granting property rights subject to certain obligations. As the central government became more powerful in the twelfth and thirteenth century, all freehold land titles “were to some extent precarious,” but “the same power also protected free property from anyone except the government.” ⁷⁷ In the terms of the liberal accounts of property, one’s title to land was a matter of commutative justice.

When our focus shifts to the situation of the lowest layer of the free—that is, those who were tilling what they would have considered to be their own holding of land—a distinction between the property rights system and the systems that were in place for the conduct of agriculture also comes into view. In medieval Europe, agriculture was often, but not always, conducted by way of a ‘common fields’ system. As Richard C Hoffmann has explained, a common fields system has three characteristics: (1) open fields, i.e. “[t]he holding of each cultivator lay in numerous unfenced parcels, normally strips, scattered about the fields”; (2) common pasture, i.e. “an individual’s sole right to the product of his land extended only over arable crops; otherwise … the forage that remained belonged to the stock of all the villagers”; and (3) “individual cultivators retained the power to make only such decisions about cropping and other agricultural practices as remained after the fundamental elements of [crop] rotations, plowing dates, harvest dates, stock quotas, and the like had been determined, usually on a customary basis, by all the cultivators in common.” ⁷⁸ Accordingly, the common fields system exhibits a high level of communal organisation, but this appearance of communal organisation of the conduct of agriculture does not undermine a conventionalist (and individualist) account of rights in respect of land.

Hoffmann’s study of these arrangements challenges two misconceptions about the prevalence of the common fields system. The first misconception was that the system was ubiquitous in western Europe. While, around about 1300 CE, the common fields system “dominated large areas of the north European plain,” it did not seem to take hold at the edges of this area, i.e. the Mediterranean, the wet areas adjoining the Atlantic and subarctic regions, or in mountainous or marshy areas. ⁷⁹ It was also “closely associated with a nucleated settlement pattern” and was not found “where the rural population was dispersed in isolated farmsteads or in hamlets of less than … ten households.” ⁸⁰ Common fields were also associated “with strongest manorial systems,” ⁸¹ which presumably would have provided the impetus for the organisation of agricultural practice along common fields lines. Moreover, where the common fields system existed, it existed at different levels of strength and it was not necessarily the case that all elements of the system existed at once. ⁸²

The second misconception was that the common fields system was the original and traditional system of land use that was “transposed to an unknowable prehistoric past in the forests of primitive Germany or tribal Gaul, and linked indissolubly with the character of specific national or ethnic groups.” ⁸³ That notion corresponds neither with archaeological evidence as to the field structure in the earlier medieval period ⁸⁴ nor with historical research relating to the legal arrangements that existed at the time. ⁸⁵ Rather, it seems that the common fields system co-existed with and was preceded by a “traditional individualistic subsistence agriculture”:

What emerges … is a somewhat standardized European pattern of extensive sedentary pastoralism and mixed farming on nuclei of suitable land, whether permanent or shifting, farmed for subsistence by a thinly distributed population that knew certain elements of a neighborly cooperation, but had none of the complex field arrangements, common rights over the arable land, and communal regulations of the later common-field system. ⁸⁶

Why, then, was a system of individualistic subsistence agriculture replaced, in some parts of Europe but not others, by a more communally organised system? Joan Thirsk observed that “the system evolved slowly”:

Common rights of pasture on the waste were ancient; arable fields seem to have been divided into strips before any village agreements were reached to regulate rotations and graze the stubble and fallow in common. The careful supervision exercised by manorial officers over all aspects of common-field farming is not everywhere apparent in early manorial documents, and in some manors not until the sixteenth century: court roll material survives from the thirteenth century onwards, and although there is much evidence of penalties imposed on those who damaged the property of others, particularly at harvest time, there are few hints of crop rotation or common pasture rights. ⁸⁷

Increases in population in a particular area seem to have been a significant driving force, in so far as hamlets, in which two or three families had inhabited, grew into villages and, to provide each family with the ability to feed itself, large rectangular fields were divided into strips of land. ⁸⁸ Hoffmann suggested that family growth and the consequent hiving off of new families was a factor driving the demand for land:

[I]t was the growing family that first expanded its arable land to meet its larger cereal demands and to absorb its additional labor supply, and, eventually, as new families hived off, either subdivided the old holding or created new ones beside it. The result tended toward either the cluster form of hamlet fields mentioned above, or a bundle of strips, as in the open fields. Likewise, any assart [i.e. land clearing] undertaken cooperatively by a group of neighbors or kinsmen could start as a joint holding, but ultimate division again tended to yield the strip pattern. ⁸⁹

As to why strips might be preferred to smaller rectangular fields, Thirsk suggested that “the strip was a more convenient shape for cultivation by the plough” and, while this did not influence the adoption of large rectangular fields at the time of initial clearing and cultivation of the land, “it did influence the method of partitioning holdings at a later date.” ⁹⁰

At some point, further land clearing in reasonable proximity to the village would no longer have been a possibility and the available land would have become subject to pressure from competing uses carried out in close proximity to one another—particularly competition between grazing and crops. The ensuing social conflict required a solution:

How do you keep the cows out of the corn? Medieval peasants lacked an easy technical solution. Separate herding or tethering of each household’s beasts did not work. The labor expended was, from the standpoint of the stock owner, unproductive. He had little direct incentive to be continuously vigilant that his animals did not get fat on someone else’s wheat.… Similar technical inadequacies made adequate permanent fencing of each parcel costly to construct, an impediment to access, and wasteful of valuable land.… So conflicting land use would easily precipitate endemic social conflict among neighbors. Population growth itself, simply by pushing more and more people into contact with one another … could only exacerbate the tensions. But the immediate, central impetus for strict and systematic communal control was a shortage of pasture, which forced use of the stubble and fallow.… The conflict demanded a solution, and medieval peasants found it in communal control. Pasture was made common. The village required but one herdsman and no new fencing. But then general community agreement had to control harvest dates, plowing the fallow, sowing, and the like, and sharply to curtail each individual farmer’s ability to make his own independent plans and operational management decisions. ⁹¹

Ways of increasing the productivity of the land available for crops also had to be found. Here there was a technical solution involving the rotation of crops, so that the amount of land that had to lie fallow at any particular time was much reduced:

The former field-grass economy, under which land had been used alternately for arable crops and then left for years under grass, gave way gradually to a more intensive rotation of arable crops and fewer years of grass until finally a two- and later a three-course rotation, allowing only one year of fallow, was arrived at. It is unlikely, however, that in the first instance this system of cropping was communally organized. More probably it was adopted by individuals or by parceners cooperating for mutual convenience in one field. ⁹²

Eventually, however, the multiplication of fields and farmers made communal regulation necessary. Thirsk identified this necessity as that of ensuring that “all had access to their own land and to water, and that meadows and ploughland were protected from damage by stock.” ⁹³ The scattering of strips also came to have the advantage of giving “each individual a proportion of land under each crop in the rotation.” ⁹⁴ Henry E Smith has elaborated upon the attractions of a system of scattering of strips, noting that it “abated the obvious costs associated with semi-common property.” ⁹⁵ A communal agreement to scatter strips can be explained as a risk-reduction strategy:

With narrow strips, it would be most difficult to direct animals in the common herd grazing on the commons away from anyone’s plots and toward other plots. With intermixing of the plots, the animals would be likely to be spread on each person’s land proportionately all the time. Perhaps more important, directing the sheep to or away from anyone’s parcels would be prohibitively costly. Scattering would prevent even those familiar with the land from recognizing from afar—and at the tempo of milling sheep—which strip was which. By contrast, the process of grain growing places the individual closer to the strip and is not so fast paced, making it easier—although still not trivial—to tell which strip is which. ⁹⁶

Scattering has advantages not only as to spreading the risk that crops will be trampled by animals but also as to spreading the benefit of the incidental fertilisation of the soil by the manure of the same animals. ⁹⁷

Hoffmann argued that there was nothing inevitable about the progress towards the communal solution. The combination of common fields and communal control was not ubiquitous and the existence of common fields was “insufficient to explain communal control.” ⁹⁸ Hoffmann observed that conditions favouring group solidarity existed in the high Middle Ages:

Subsistence-sufficiency involves a mutually reinforcing connection whereby uniformly limited technical abilities and severe social subordination join with rough comparative equality within the peasant group to promote strongly conformist and static behavior patterns. Living at a marginal subsistence level, the peasant knows scarcity as a basic fact of his life, especially by comparison with the apparent abundance enjoyed by his non-peasant rulers. With no visible opportunities for advancement at the expense of others than his neighbours, disaster is so much more likely than gain that all risks are feared. The goal, therefore, is survival; maximization can scarcely be imagined. ⁹⁹

To put it more briefly, the lack of opportunities for upward mobility and the similarity of the circumstances of those around them produced in medieval peasants “a strong bias in favor of joint action to preserve what little they had.” ¹⁰⁰

The evolutionary account of the development the common fields system offered by Thirsk, Hoffmann, and others is not undermined by evidence that, in some places, the system was implemented upon newly settled land. Hoffmann noted evidence that, around the middle of the twelfth century, there were migrations of peasants from central Germany to lands further east, eventually to Poland, and from England to the area around Dublin. It seems that these migrations resulted in the establishment of agriculture involving common fields and the attendant communal institutions. ¹⁰¹ This can be explained, as Hoffmann does, by peasants taking their “cultural baggage” with them, ¹⁰² although he also observed that “indigenous populations even in areas not subject to significant immigration began to adopt similar agricultural practices.” ¹⁰³ Establishment of common fields systems as a result of immigration or adoption before the twelfth century seems improbable. Thirsk rejected the once common belief that the Anglo-Saxons brought with them a fully formed common fields system from their north German homelands when they settled in England in the sixth century. The German scholarship at the time that Thirsk was writing had concluded that the Angles and Saxons could not have had a fully-developed common fields system at so early a time. ¹⁰⁴ That immigration and consequent transplantation had, in any event, a relatively minor role in the expansion of the common fields system, and the role of population growth was much more significant, is consistent with the fact that it was at “the frontiers of the medieval west”—notably Bohemia, Poland and Scandinavia—where “population growth and economic development got under way somewhat later than in the medieval heartland” and “the regular and pervasive contacts that would encourage cultural borrowing were likewise delayed” that the latest adoptions of the common fields systems occurred. ¹⁰⁵

The end of the common fields system came with the ‘enclosures’ movement. While Parliamentary efforts to bring about enclosure of lands were concentrated in the late eighteenth and early nineteenth centuries, ¹⁰⁶ the process of enclosure had, in fact, been going on for some time prior to that. The parts of England in which enclosure was “a painless and peaceful process” tended to be those where a communal organisation of agriculture had either never completely taken hold or had not been adopted on large scale. ¹⁰⁷ As Thirsk explained, “agreements between two persons or a small group to extinguish common rights over the arable were far more easily reached … than agreements between all the inhabitants of the village.” ¹⁰⁸ The pattern of early enclosure highlights the fact that significant parts of medieval England never adopted the common fields system. The absence of a common fields system in some parts of the country is consistent with the thesis that it was local circumstances that drove the adoption of the system where it was adopted.

The body of scholarship that has been surveyed here presents the medieval common fields system as something which emerged slowly. The process of its emergence had four key characteristics. First, the initial reconfiguring of village lands as common fields occurred by agreement between individual cultivators. Secondly, rules about the rotation of crops and lying fallow were adopted subsequently rather than as part of the reconfiguration of the land as common fields. Thirdly, both processes were driven by economic factors, notably the need to get the most out of a limited quantity of land in circumstances of rising population. Fourthly, the process was locally driven, rather than imposed by central government, and widespread adoption was largely the product of the similar sets of circumstances in those places where the system was adopted. A lack of adoption in some areas, such as Devon and Cornwall, reflected an absence of the relevant circumstances.

This account of the common fields system has strong egalitarian aspects that perhaps do not sit well with popular views of medieval English society. Of course, the modern idea that one could sell one’s land and move to what one perceived to be greener pastures would never have occurred to the majority of medieval peasant cultivators, but to impose categories of ‘free’ and ‘unfree’ upon the peasants of medieval England is to overlook the diversity of situations in which they found themselves. Barrow, in his discussion of the English countryside on the eve of the Norman Conquest, distinguished between East Anglia and the Danelaw, where the manorial system was not usual, and the south and the midlands, where it was. Barrow divided the peasants within the manorial system into three grades. There were the geneatus, who were “unquestionably free men,” as while they were “subject to a lord, and paid rent in recognition of his lordship,” the labour services which they provided to the lord “were mainly seasonal and seldom burdensome.” ¹⁰⁹ The bulk of the peasant class, the gebur, had a small holding of land “in return for which [they] performed heavy labour services.” ¹¹⁰ When such a peasant took up his holding, the lord of the manor would have given him stock and farming implements, which “placed him in definite economic and social dependence.” ¹¹¹ The third class, the “cotters” (i.e. cottage dwellers), had small holdings, “paid little or no rent,” and had labour obligations that were “considerably lighter than the gebur’s.” ¹¹² Nevertheless, they would have been likely to offer their labour for a wage on several days a week. ¹¹³ The Conquest began a process whereby the “very many small peasants who were legally free men” became “not free at law but were both tied to the manor on which they had been born and subject to the will of its lord,” although their land holdings seem to have been protected by law and were recorded in the manor court rolls. ¹¹⁴ They were “free towards everyone but their lord.” ¹¹⁵

Outside of the manorial system, there were “large numbers of peasants who were both legally free and economically independent.” ¹¹⁶ The payments and services that these “sokemen” gave to their local lords “were neither burdensome nor of a kind associated with servility.” ¹¹⁷ Their relationship with their overlords “had little to do with agriculture” and was more in the nature of “a political and administrative relationship.” ¹¹⁸ This diversity of relationships between peasants and local lords tells of an ongoing development of relationships according to the circumstances of times and places, rather than a monolithic social hierarchy. Peasants may have been dependent upon and subordinate to their overlords in many matters, but they did enjoy rights to the use of land that were enforceable against the members of their own class.

IV. Conclusion

The situation in which the findings of historians and the conclusions of moral philosophers are mutually reinforcing is a happy one. Reynold’s research casts doubt on the theory that landholders in medieval England regarded their rights in land as being derived from those of the King. To see all rights in land as flowing from the King incorrectly takes evidence about the hierarchy of administration to be evidence of a hierarchy of property rights. The scholarship relating to medieval agriculture practices reveals that the common fields system was neither a traditional system that had existed from time immemorial nor the design and imposition of the state. It emerged gradually, at different times in different parts of Europe, in response to particular types of evolutionary pressures. It appears to have developed upon a foundation of earlier individualistic holding of land, which it never completely displaced. It developed as a solution to social conflict arising from competing land uses carried out in close proximity to one another. The strongly communal aspects of the system, such as the practices concerning the rotation of crops, seem not to have been features of the system at the outset. They were not built into the system by design but were an expression of group solidarity in the face of shared risks. Transplantation of the common fields system through migration seems to have been the exception rather than the rule. Where it occurred, it can be understood as the immigrants following practices with which they were familiar. What we can see in the common fields system, then, is a complex web of interpersonal rights and obligations that existed below the level of the formal feudal system and reflected an accumulation of practices that had arisen in response to evolutionary pressures.

The common fields system is a plausible exemplar of Humean conventionalism. Individuals had rights to the use of land that were enforceable against other individuals, even if those individuals were subject to the many demands of their feudal overlords. The system arose gradually and acquired force by a slow progression, by the repeated positive experience of adhering to it, and by the inconveniences of transgressing it. Hume’s account of property, far from being undermined by the facts of history, would seem to be vindicated by them. The overlay of the formal feudal system has tended to obscure the conventional rights and obligations that were observed at the lower levels of the social pyramid.

The broader lesson to be taken from Humean conventionalism is that it is a mistake to assume that legal and social institutions are necessarily the products of deliberate design, construction, and imposition by the state. Different aspects of a social order may have developed quite separately from one another yet operate and evolve in harmony with one another. Such institutions persist for as long as their aggregate effect is consistent with the public good. This does not mean that existing institutions, such as property rights, should never be the subject of reform, but it does counsel humility to those who would attempt to redesign complex and interrelated institutions by reference to an abstract moral principle or social goal.