Not sure is this is overly broad, but, I recently read that the founding of the United States had profound legal implications for the concept of "property rights." Can anyone narrow down some concepts or resources I might use to learn more? Or possibly give a light overview?

by nezrameoj
peripatos

It didn't really, and I'm not sure who is arguing that, but if you clarify your question I would be happy to go into more detail. Property defined as the idea that an individual has an exclusive right to the use and enjoyment, up to and including the destruction of a given item, person or piece of land has been a commonplace legal term in broad use since at least the Roman times, and I could argue extremely persuasively and with broad-based academic support that as far back as under Jewish, Sumerian, Babylonian and Akkadian law, not to mention Egyptian law, private property existed in largely the same format it does today.

Property is such a fundamental legal term, I'd be very interested in hearing exactly what revolutionary new thought was infused into it by 18th century Enlightenment revolutionaries.

zekthegeke

Depending on what you mean by property rights: the central issue is not only the founding of the US and the subsequent versions of government that followed (it's worth noting that some of the most functional aspects of the Articles of Confederation period of governance are the land surveying and processing portions), but the previous period of divergence from English law.

Towards that point, there are two big concepts I would suggest that made the prerevolutionary period such a vital and momentous period in the evolution of property rights. I think they might help in pointing you towards why this period and place are thought of as a big deal in terms of legal history.

  1. The abundance of property in America served to undermine the status quo (White, 51). In contrast, in Britain (to simplify greatly) property rights were built around scarcity and preservation of privilege. The American system was also a system where speculators and squatters were the most active and important participants, who flourished with the novel practice of "recording" deeds to vacant land as the key marker of ownership. This was a key driver of divergence between the two systems.

  2. We tend to view the prerevolutionary era as consisting of a broadly similar legal traditions between English colonies. As per (Friedman, Kindle Loc 248), it's more accurate to say we have a bunch of different experiments starting at different points in time that borrow different amounts and types of legal practices from Britain and other places as needed. English law formally acknowledges divergence from the original system as a valid practice where it does not conflict (repugnancy principle) egregiously with British interests; seemingly paradoxically, as the colonies become more dominantly Anglicized, their law resembles the British system less closely in large part because their dominant paradigm (as described in 1) is so different, and this is something that the British are largely ok with. White also notes the extensive role that living under the shadow of an Amerindian majority had on the earliest Colonial legal practices, although he concludes their influence was ultimately phased out by the 18th century in large part due to their increasingly diminished political influence. Needless to say, at any poin that process of Anglicization could have been halted or changed by a significant French or Spanish victory, but that was not the case.

Friedman provides an extensive breakdown of the particular legal mechanics that evolved and were adapted over time, while White provides more of a "big picture" sense of what was going on legally. White, especially, would seem to me to go a long way to providing you with a comprehensive answer to your question in a very readable and accessible format. A flexible, aggressive approach to property is the central economic axis around which law revolves in the United States as a result of this unprecedented combination between demand and supply of/for land, well into the age of corporations in the late 19th and early 20th century, so it's really up to you how much you want to narrow it down from there. While I can't do justice to the nuanced case White presents (eg 167), it would be fair to say that apart from the important aspect of unlocking previously French and Spanish lands and discarding virtually any semblance of protection of Amerindian property claims, there was probably a lot more legal continuity than you might expect as an outcome of the war. Those are big caveats, of course, but I think the fundamental point that the big differences largely preceded that stage stands.

Friedman, Lawrence Meir. A History of American Law. New York, NY [u.a.: Simon & Schuster, 2005. White, G. Edward. Law in American History. Oxford; New York: Oxford University Press, 2012.