The Aporias of Property

by Jean-Fabien Spitz
, 10 February 2020

Private property is now sacred, and its strict definition prohibits the redress of inequalities and of environmental problems. But it was not always conceived in this way: It was invented by the French Revolution.

In contemporary developed societies—and despite the vigorous revival of interest in common goods [1]—the idea of private property has taken on a form of self-evidence, and its definition as given by the 1804 French Civil Code seems to us both natural and indisputable: “The right to use and dispose of things in the most absolute manner” (art. 544). Half a century earlier, in his Commentaries on the Laws of England (1753), Blackstone had similarly defined private 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.” Granted, the Civil Code immediately adds an important restriction in stating that one must not use one’s property in a way “prohibited by laws or regulations,” and Blackstone’s work is filled with examples of cases in which the property holder’s “despotic dominion” is restricted by the maxim that one shall use his property in such a way as not to harm the interests of others (“sic utere tuo ut neminem laedas”). But the fact remains that the right to exclude seems to be the essential element in the bundle of rights known as the right of private property. [2]

Today, however, this idea of private property may well appear to us increasingly unsuited to the needs of our society. This definition allows almost no restriction on its expansion while allowing restrictions on its use that are limited to the prohibition of overt coercion, without it being possible to add that owning a part of nature—or any good characterized by relative scarcity—should be accompanied by strong social obligations (see G. Alexander, The Global Debate over Constitutional Property, Chicago University Press, 2006). As it stands, the idea of property inherited from the beginnings of the modern liberal era makes it impossible to curb inequalities, to prohibit the monopolization of resources, or, even more problematically, to prevent irreversible environmental degradation. This is why, if we wish to change our “absolutist” definition of private property, it is in our interest to historicize it, to study the moment of its birth, and to thereby recognize that this institutional form has not always existed and, as such, can also be transitory. This is what Rafe Blaufarb purports to do when he suggests (p. 3) that “if ownership is defined as the exclusive right to something, the right to call something entirely one’s own, it is misleading to speak of ownership at all when describing property in the Old Regime.” Thus, the French Revolution created from scratch—“invented”—our contemporary idea of property.

Property Before 1789

Indeed, the pre-1789 property regime confused property and sovereignty. In many cases, being a property holder allowed one to exercise a parcel of sovereignty, as the right to exercise civil and criminal justice was often placed in the hands of private individuals via the granting of jurisdictional lordships (seigneuries), which were usually linked to a landed estate (i.e., the fief). As a result, sovereignty was fragmented and could not promote a uniform legislative order guaranteeing civil equality between all citizens. Conversely, being the ultimate sovereign gave the Crown an illustrious yet tangible title, referred to by Blaufarb as a general right of “proprietary superiority,” to the land of the entire kingdom. This was a form of universal lordship whereby all lands—with the exception of allodial lands—were subjected, through a complex hierarchy of tenure, to a lordship and thereby ultimately to the Crown: one could hold land only on the condition of recognizing a proprietary superior to whom one owed personal services that were gradually converted into monetary equivalents. For Blaufarb, this personal dependence of individuals that stemmed from their landed servitude was clearly incompatible with the revolutionary ideal of individual liberty, which, as Guy-Jean Baptiste Target explained during the National Assembly debate on the abolition of the old property regime in August 1789, implies that the right of property “can only exist over things.” All power, Target added, “that a man exercises over other men… cannot be a property” (p. 52).

To achieve the dual ideal of civil equality and individual liberty, it was therefore necessary to replace hierarchical and fragmentary tenure with a fully individual property regime and, accordingly, to radically separate—via what the author calls the Great Demarcation—public power and private property. As Blaufarb observes, had the tenure characteristic of the old property regime remained in place, “the perpetual ties of proprietary hierarchy would impinge upon the citizen’s freedom and make him the inferior to his lord” (p. 10). On the other hand, it was equally necessary to put an end to the private appropriation of parcels of public power to enable the constitution of a single and indivisible sovereignty under whose laws civil equality would become possible.

The Intellectual Origins of the Great Demarcation

In France, then, it was the Revolution that carried out the Great Demarcation between property and power, between the social and the political, between society and the state, between the private and public spheres. This demarcation rendered possible the modern regime of liberty in which citizens are free of all personal dependence and subject only to public law, and in which the relations of civil society—those that regulate the use and exchange of property—are independent of status and governed by private law alone. Consequently, notes Blaufarb, there is no point in asking whether the French Revolution was essentially a civil, political, and institutional revolution or a social revolution, because the distinction between these two spheres exists only as a result of the Revolution itself. Indeed, the revolutionaries abolished the proprietary state, which had held direct power over individuals via a right to their property, and had thereby prevented the existence of a private sphere governed by its own rules. And they replaced this proprietary state with a purely sovereign state which, by virtue of its abstraction, allowed this private sphere to exist as part of a legal regime wherein property belongs entirely to the citizens and the power to make laws belongs solely to the public authorities.

Of course, the very idea of the Great Demarcation was not born with the Revolution itself, and Blaufarb reconstructs the intellectual genealogy that led to the great break separating property and power on the night of August 4, 1789. He attributes the paternity of this break to three jurists: Charles Dumoulin (1500-1566), Jean Bodin (1529-1596), and Charles Loyseau (1566-1627). It was Bodin, above all, who developed the idea that royal power is an absolute and indivisible power whose essence lies neither in the right of property nor in the right of justice, but in the absolute right to make the law. And it is as a counterpart to this legislative absolutizing of sovereign power that there emerged a private sphere wherein property is free of all personal dependence. For that matter, Bodin contrasted seigneurial monarchy “in which the prince makes himself lord of both goods and persons” with royal monarchy—the better one in his view—in which the sovereign leaves “the property of goods to the subjects” (p. 21). Loyseau took a further step towards the definitive separation of sovereignty and property by establishing a clear distinction between private seigneurie and public seigneurie. The sovereign makes the law, but does not exercise power over individuals through any sort of right of property; subjects are masters of their property—Bodin even admits that the king cannot impose taxes on them without their consent (p. 22)—but can never impose private law on anyone.

As Blaufarb emphasizes, Montesquieu has no place in this genealogy, quite the contrary. Indeed, while Montesquieu’s contribution to liberal thought cannot be disputed in other respects, one must recognize that he was blind to the major role played by the Great Demarcation in the emergence of the modern system of liberty. In the rarely read section of The Spirit of Laws, Montesquieu effectively purports to show that “the confusion of property and power was just as necessary as the separation of powers to restrain the monarchy’s tendency towards despotism” (p. 38). For him, moderate monarchy rests on the private appropriation of public power, whereas for Blaufarb it constitutes the main obstacle to the development of a regime of individual liberty.

The Great Demarcation Becomes Reality

Blaufarb then retraces, in the different chapters of the book, the laborious steps that led to the effective realization of the Great Demarcation, based on the idea that the emancipation of citizens can only be achieved through the emancipation of their property (p. 61). Several obstacles had to be overcome for this major project to come into being.

First, Blaufarb describes (Chapter 3) how the revolutionary assemblies tried to distinguish between feudal rents, which were based on violence and individual subjugation, and non-feudal rents, which derived from genuine contracts and were therefore vulnerable to rachat [3]. He also shows how they came to understand that allowing non-feudal rents to subsist and conditioning their disappearance on their rachat might perpetuate the Old Regime, and might thereby prevent the equal liberty under law to which they aspired. Thus, a certain radicalism gradually developed among some revolutionaries, who did not want to hear about the distinction between feudal rents and non-feudal rents or about a potential rachat, and who considered that any system in which the person who occupies and works the land may be obligated to pay rent to an official proprietor should be fully abolished without compensation, so as to ensure the unambiguous and definitive unification of the useful and direct domains. For these revolutionaries, only complete abolition without rachat or compensation could give rise to the idea of an independent and natural property free of all servitude.

Blaufarb further shows that the revolutionaries had to break with the idea of the inalienability of the royal domain and, in parallel, to establish the view whereby only things that fall under the sovereignty of public power are inalienable and things that are in essence appropriable are also alienable. In this sense, only things that were “not susceptible of individual property,” such as streets, city walls, ports, and other things “whose usage was common,” were to be considered public property (p. 146). The author analyzes the state’s difficulties, after the Revolution, in completely ridding itself of its domanial character and in definitively converting land and functions, which were formerly “engages” [4] in exchange for the payment of rent, into “absolute” properties free of any obligation. The process of nationalizing and then alienating the properties that had been attached to the Crown and to the various state bodies prior to 1789 proved more complex than the post-1789 process of abolishing the possibility of gaining control over a parcel of public power via the acquisition of property. The painfully achieved deconstruction of the proprietary state nevertheless completed the Great Demarcation, for it finally brought citizens deprived of access to any parcel of public power face to face with a state that could no longer exercise direct power over individuals via the power it held over their property.

The Liberal Utopia Laid Bare

Blaufarb sums up the Great Demarcation with a phrase taken from the 1804 French Civil Code: “Property belongs to the citizen, empire to the sovereign […]. Empire, which is the sovereign’s share, contains no idea of domain […]. It consists solely in the power to govern” (p. 208). Yet, this ideal separation between the public and private spheres proved more difficult to achieve in the long run than its initial conceptualization had suggested. Indeed, it was easy to denounce the old confusions that stood in the way of individual liberty and equality, but it proved less easy to avert the new confusions made necessary by the preservation of this same liberty and this same equality. Prohibiting the exercise of public power by private individuals is not so easy when inequality reaches new heights, and, conversely, safeguarding the independence of property against the state proves impossible when collective needs—public goods, the necessary consolidation of social ties, solidarity, the creation of social property—are imperiously asserted in the face of individual property rights. As Blaufarb observes, some commentators on the Civil Code even considered that the reservation it attached to the right of property (the use made of it must not be “prohibited by laws and regulations”) destroyed the essence of this right by exposing it to the predations of the collectivity (p. 209). And as Portalis—one of the principal drafters of the Civil Code—himself admitted, truly independent property is impossible in a state of society, insofar as the permanent friction it generates often implies the subordination of private law to collective requirements.

In addition, some articles of the initial draft seemed to suggest that the state had virtually unlimited authority to expropriate individuals for the purpose of public utility. This led to reservations that prompted the drafters to specify that property was governed by its own rules and not by political factors, and that private law as defined in the Civil Code was fully protected against encroachment by public authority, to the extent that, for the first time in French history, individuals would be able “to obtain permanent legal injunctions against state claims to their property” (p. 217). Portalis hammered home the point by claiming that the state was definitively not a proprietor: When it levied taxes, when it enacted regulations that limited the use of private property, it did not act as master, dominus, proprietor, “but solely as arbitrator, as regulator, to maintain good order and peace” (p. 218). The final version of the Civil Code further specified that “no one can be constrained to cede his property if it is not for the purposes of public utility and for a reasonable and prior compensation.” On the one hand, then, a sovereign state stripped of its property yet unreservedly guaranteeing that of private individuals, and, on the other, these same private individuals forming a civil society defined by individual and inviolable property.

We now know, however, that the Great Demarcation is, in the strict sense, a contradictory idea, since it implies a definition of the right of property that is entirely independent of any consideration of how the constitution of this right affects the rights of third parties or the possibility of producing public goods.

Thus, the US Constitution contains an explicit clause stating that private property cannot be taken for “public use, without just compensation.” Yet, this clause did not prevent the eruption of controversy, during a “cause célèbre” decided by the Supreme Court in 2005 (Kelo v. City of New London), over whether a public authority can entrust a private actor with the right of expropriation for the purpose of developing an area of activity capable of generating employment and additional tax revenues for the community. In this case, property was expropriated not, in the narrow sense, for the express purpose of public use (e.g., a public garden, a road, etc.), but, in the broad sense, for a purpose beneficial to the public (the creation of activities favorable to economic development). [5] Those who favored the rigorous defense of property rights—and so of a contemporary version of the Great Demarcation—stressed the extent to which this form of expropriation made all property rights extremely vulnerable. But the judges—who validated the expropriation by a narrow majority—were persuaded by another argument. Without the right to expropriate private property for reasons other than effective public use, the public authorities would not be able to promote the well-being of citizens; they would not be able to upgrade substandard neighborhoods or to promote large-scale economic development projects paralyzed by the resistance of private owners unwilling to give up their property under any condition. The stakes are indeed high: Today, in the hyper-complex societies of the early 21st century, can the public good—and, in particular, the reduction of inequalities and the preservation of the environment—be derived solely from the interaction of private actors within an independent society immune to public action? Contemporary advocates of the Great Demarcation are convinced of this, but it is not certain that they are right.

Rafe Blauberg, The Great Demarcation: The French Revolution and the Invention of Modern Property, Oxford University Press, 2016, 304 pp.

[1] Pierre Crétois and Thomas Boccon-Gibod (eds), État social, propriété publique et biens communs, Lormont, le Bord de l’eau, 2015; Benoît Borrits, Au-delà de la propriété, pour une économie des communs, Paris, La Découverte, 2018.

[2] T. W. Merrill, “Property and the Right to Exclude I,” Nebraska Law Review, vol. 77 (1998), “Property and the Right to Exclude II,” Brigham-Kanner Property Rights Conference Journal, 1 (2014).

[3] Rachat means that tenants who had to pay rents in the Ancien Régime would have had to compensate the seigneurs for the abolition of that rent.

[4] Engagées means that the state has granted possession of the land to private persons in exchange for the payment of rent.

[5] See Ilya Somin, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, University of Chicago Press, 2016.