Finding Possession: Labor, Waste, and the Evolution of Property

Fraley, Jill M

"Finding Possession: Labor, Waste, and the Evolution of Property"

by Fraley, Jill M (2011)

Abstract

Although possession has long been intimately linked to labor, recent historical work on land claims during the sixteenth and seventeenth centuries suggests that the clash of divergent legal cultures of possession drove the two apart. This clash yielded an American concept of possession much more deeply connected to industrialization than the traditional understanding of labor. By providing evidence of how our concept oflabor was industrialized, this article questions the outcomes in modem possession cases, particularly as they impact development and environmental preservation in rural areas.

Key Passage

[W]e must be willing to examine critically how the assumption of possession and labor together has reified private property as an unassailable, private right. More than once in recent years, scholars have argued that the truest part of democracy-the ideals of liberty, democratic accountability, and popular sovereignty-are lost behind property rights. This may in part be a result of our tendency to closely guard property as an almost personal right, as though the Constitution affirmed life, liberty, and property following Locke word for word, as opposed to substituting happiness. Ironically, such a notion of inviolable property is not consistent with Locke's own views, which limited private property when it interfered with the ability of others to obtain their basic sustenance.We glorify private property rights to the extent that we hesitate to impose the taxes and environmental use restrictions that would sustain society as a whole even though Locke himself was philosophically committed to supporting such impositions on an absolute property right. (p.59)