Savagery, civilization, and property II: Civilization and its discontents

(Part II of the series, Part I is here.)

The second half of the eighteenth century saw the development, primarily in Scotland (though with significant French and other precedents),  of what would come to be known as “stadial theory” or “four-stages theory.” This group of theories built on an age-old interest in the origins of society and its institutions, sharpened by contact with New World societies that reminded Europeans of societies described in classical Greco-Roman and biblical sources, and raised the issue of what separated “savage” or “barbaric” peoples from “civilized” ones. Stadial thinking offered a theory of progress:

In its most specific form, the theory was that society ‛naturally’ or ‛normally’ progressed over time through four more or less distinct and consecutive stages, each corresponding to a different mode of subsistence, these stages being defined as hunting, pasturage, agriculture, and commerce. To each of these modes of subsistence, it came to be argued, there corresponded different sets of ideas and institutions relating to law, property, and government… (Ronald L. Meek, Social Science and the Ignoble Savage 6 (1976))

From the beginning, property law had a central place in this type of theory — it was, it seems, the motivating factor behind the theory  — and the discussion of property displayed striking similarities to aspects of modern commons theory (to be discussed in Part III below). John Dalrympleʼs three-stage theory, the first published version of stadial theory (1757), connected the progress of society with increasing specification of property rights. Moreover, it attributed the transition between stages to what we might today call increasing pressure on resources:

The first state of society is that of hunters and fishers; among such a people the idea of property will be confined to a few, and but a very few moveables; and subjects which are immoveable, will be esteemed to be common. In accounts given of many American tribes we read, that one or two of the tribe will wander five or six hundred miles from his usual place of abode, plucking the fruit, destroying the game, and catching the fish throughout the fields and rivers adjoining to all the tribes which he passes, without any idea of such a property in the members of them, as makes him guilty of infringing the rights of others.

The next state of society begins, when the inconveniencies and dangers of such a life, lead men to the discovery of pasturage. During this period, as soon as a flock have brouzed [sic] upon one spot of ground, their proprietors will remove them to another; and the place they have quitted will fall to the next who pleases to take possession of it: for this reason such shepherds will have no notion of property in immoveables, nor of right of possession longer than the act of possession lasts. The words of Abraham to Lot are: “Is not the whole land before thee? Separate thyself, I pray thee, from me. If thou wilt take the left hand, then will I go to the right; or if thou depart to the right hand, then will I go to the left.” And we are told that the reason of this separation, was, the quantity of flocks, and herds, and tents, which each of them had, and which the land was unable to support; and therefore lord [sic] Stairs ingeniously observes, that the parts of the earth which the patriarchs enjoyed, are termed in the scripture, no more than the possessions.

A third state of society is produced, when men become so numerous, that the flesh and milk of their cattle is insufficient for their subsistence, and when their more extended intercourse with each other, has made them strike out new arts of life, and particularly the art of agriculture. This art leading men to bestow thought and labour upon land, increases their connection with a single portion of it; this connection long continued, produces an affection; and this affection long continued, together with the other, produces the notion of property. (John Dalrymple, An Essay Towards a General History of Property in Great Britain 86–88 (1757))

Lord Kames

The jurist Henry Home, Lord Kames, also connected the stages of society to property law in his Historical Law Tracts (144–46 (Edinburgh, A. Kincaid & J. Bell, 1758), footnotes omitted and spelling modernized):

In the two first stages of the social life, while men were hunters or shepherds, there scarce could be any notion of land-property. Men being strangers to agriculture, and also to the art of building, if it was not of huts, which could be raised or demolished in a moment, had no fixed habitations, but wandered about in hordes or clans, in order to find pasture for their cattle. In this vagrant life men had scarce any connection with land more than with air or water. A field of grass might be considered as belonging to a horde or clan, while they were in possession; and so might the air in which they breathed, and the water of which they drunk: but the moment they removed to another quarter, there no longer subsisted any connection betwixt them and the field that was deserted. It lay open to new-comers, who had the same right as if it had not been formerly occupied. Hence I conclude, that while men led the life of shepherds, there was no relation formed betwixt them and land, in any manner so distinct as to obtain the name of Property.

Agriculture, which makes the third stage of the social life, produced the relation of land-property. A man who has bestowed labour in preparing a field for the plough, and who has improved this field by artful culture, forms in his mind a very intimate connection with it.

Elsewhere Kames connected the advance between stages with the pressure of growing populations on resources: 

Social justice and the historical development of water rights

Jill Robbie blogged this week at the University of Glasgow School of Law's blog, exploring connections between her work on the history of Scottish water law (see her Private Water Rights, 2015) and my own on the history of the appropriation doctrine in the western US. Jill writes:

In The Colorado Doctrine, David investigates the historical development of the prior appropriation doctrine of water rights, commonly associated with the western states of America. The traditional view of the evolution of this doctrine is that the riparian rights doctrine of the eastern states, which entitles all landowners along a river to reasonable use of the water, was unsuited to the arid climate of the west. Therefore, a “first in time, first in right” system of water rights was created under which rights are obtained through use and earlier users are preferred to those coming later. The water rights are severable from landownership and transferable. For some law and economics scholars, the evolution of the prior appropriation doctrine is explained due to the high value of water in the dry climate and the necessity of a private property regime to ensure maximum utilisation of this valuable natural resource. As a result, the history of prior appropriation is often used as evidence of the superiority of private property over a common property regime for scarce resources.

David challenges this traditional view by digging deep into archival material from the mid to late 19th century in Colorado. Using this material, he shows that the ideology prevalent in 19th century western America was stanchly set against speculation and corporate ownership. The development of prior appropriation, where water rights are restricted by actual use and made transferable was, David argues, motivated by principles of distributive justice rather than economic efficiency and wealth maximisation. Due to this finding, David argues that property regimes are often more nuanced and complicated than a strict distinction between private property and commons. He shows that the prior appropriation theory in Colorado grew from a system of public property and provided private rights to water which were transferrable in order to try and ensure as wide a distribution of rights among actual users as possible.

The findings contained in The Colorado Doctrine have interesting parallels in Scotland. The water rights regime in Scotland developed between the mid 17th and mid 18th centuries. Advocate, judge and jurist, Lord Kames was at the centre of this development and established the theory that as water is among the res communes, or communal things, it is outwith ownership and open to all humankind. Everyone has a right to appropriate a portion of water. If a landowner diverted a river, this would be depriving those downstream of their public right to appropriate the water and landowners were therefore prohibited from diverting the rivers running through their lands. This obligation on landowners was then developed by the courts into a correlative right held by landowners against any interference with the flow of a river. Landowners are allowed to take water for primary purposes, such as drinking, washing and cooking, but no other interference with the material flow is allowed. David’s argument regarding the inaccuracy of a strict divide between common and private property regimes is therefore demonstrated by the Scottish regime which derives from a system of commons but with the result that no one is entitled to use water for secondary purposes, such as agricultural or industrial purposes, unless they obtain agreement from the landowners along a river or they are in the position of having a river wholly contained within their own land.