Savagery, civilization, and property VI: Conclusion

In the last post we looked at how stadial thought reached modern commons thought through the worlds of colonial development and conservationism. This post concludes the series.

I have argued in this series of posts that various strands of modern commons theory, though based, as well, on novel theoretical and empirical work, seem to lean heavily on the structures, examples, and sensibilities of stadial theories of civilization that rose to prominence in the late eighteenth century. These Enlightenment-era ways of thinking are admittedly outmoded as theories of history, but why should the historical sources of current theory matter?

Beyond the important goal of understanding the sources of our theories, foregrounding the continuing influence of stadial thinking on current theories of the commons should help us question some aspects of these theories by highlighting some of their oddities — such as the disproportionate weight of studies of hunting, herding, and the like among a far more diverse universe of commons situations that could be studied.

Possibly more important are the residues of the narrative of civilizational progress that continue to adhere to property theory. Carol Rose has noted ("Evolution of Property Rights", in 2 The New Palgrave Dictionary of Law and Economics 93, 94 (1998)) the quasi-religious belief in the advantages of private property held by some property theorists, especially those associated with the modern law and economics movement, according to which “an evolving property rights regime might lead humankind toward a new kind of earthly Paradise,” “a secular Eden of peace and plenty.” Rose’s own work, as well as that of some of the other commons theorists surveyed above, is free of this bias, remaining pointedly agnostic as to the direction of evolution among property regimes. But others — not only law and economics types but Hardinians and others — seem to accept (though they might not put it in these terms) that private property represents a more advanced stage of civilization than does the commons. This type of thinking lies at the root of many neoliberal policy prescriptions, from the importance of secure private property regimes to developing countries to the salience of cap-and-trade as a solution for climate change and other environmental problems.

Lucas Cranach the Elder, The Garden of Eden (1530)

On the other hand, the Romantic and Marxist reactions to the Enlightenment stories of stadial progress continue to inform another set of prescriptions and critiques, most prominent among them the many studies of successful indigenous commons management following Ostrom’s work. Whatever the normative and ethical attractions of these positions, it seems that their appeal rests partly on a narrative of fall from grace, a sort of negative image of the economists’ story described by Rose, and a yearning to return to an Eden of primitive and community-based commons.

Finally, on a more general level, I would like to highlight the central role that historical narratives or myths continue to play in nominally theoretical and normative scholarship. Myths are important, but so is clear-headed thinking about policy. By recognizing the myths on which much commons scholarship is built, we might be able to improve it.

I'd be happy for readers' thoughts. The full article is here.

The interplay of case law and regulations

Dave Owen posted had this interesting thought this week at Environmental Law Prof Blog, regarding a recent discussion on canonical environmental law cases:

The idea of a canonical environmental law case might be an oxymoron.  After all, with a few constitutional law exceptions like Lujan, most classic environmental law cases interpret statutes, which generally means the case is less important than the statute, which suggests, in turn, that the statutes are really the canon.  But that's kind of boring; if we agree that the environmental law canon is the Clean Air Act, the Clean Water Act, RCRA, and so on, that makes our field sound dull in comparison to fields where cases really have defined the law.  So perhaps, if a canon, to speak metaphorically, includes the giant trees within a forest of law, we should treat the underlying statutory and constitutional framework as the soil out of which those trees grow.

But even if my strained metaphor works, that still doesn't explain why the canon should involve cases.  Cases are good teaching devices, and they do matter, but they're badly overrated.  In many areas of environmental law, regulations have much more reach and importance.  So perhaps the question we professors really should be debating, as we procrastinate class preparation and the final stages of grading, is which environmental regulations make up the field's canon. 

I agree with Dave's point that statutes and regulations are much more important in environmental law than case law (and that this is a challenge in teaching the field!). However, over time I have become increasingly aware of how important litigation has been historically in spurring and shaping environmental regulation, a point made by (among others) Karl Boyd Brooks in Before Earth Day.

I recently had a conversation with an Israeli (non-lawyer) environmental professional who had been involved in drafting noise regulations in the 1980s, who explained to me that they were designed to reflect the guidelines laid out by an Israeli Supreme Court nuisance case in the 1970s. From my lawyer's perspective this made no sense, as the case was decided according to traditional principles of nuisance law, which should have been largely irrelevant to the noise regulations, enacted under statute. But to the engineers and scientists working on the regulations, the rules laid out by the court seemed to represent some kind of eternal truth, one they were bound to give expression to in the regulations. I think that this type of thing has happened quite a lot.

Public property and the rise of the individual

Historical articles on the commons keep coming. Victorian Studies recently published an article by Daniel Stout, "Uncommon Lands: Public Property and the Rise of the Individual". (I'm happy to say that the article cites extensively from my "How Blackstone Became a Blackstonian".) The abstract:

This article examines the theoretical hurdles that the English legal system faced in trying to come up with a coherent conception of public land in the Victorian period. Rapid urbanization and industrialization meant that the pressure to preserve open space was intense, but a conception of public land—land that belongs to everyone—was strikingly absent from English law. “The commons,” this article stresses, is importantly different from “the public.” The absence of the public from the English theory of property helps us see the ways in which the regime of liberal private property continued to carry traces of older customary forms of tenure, and to be governed by ideas (use, access, etc.) that complicate—and, often, contradict—liberal assumptions about the nature of property.

And an excerpt:

William Hartley, Justice Scrutton

[W]e have inherited from the nineteenth century a certain story about property as an institution whose rise inevitably entails the cancellation of some prior collective. And of the available names for that prior collective (family, status, clan, custom, etc.), none attaches us to it quite like “the commons.” Compared with “commons,” terms like “family,” “status,” “clan,” and “custom” seem both too privative—“the commons” has an openness and flexibility that the unnervingly tribal “clan” or aristocratic “family” clearly lack—and somehow not personal enough—the “commons” grounds an affective warmth that the cold institutionalism of “status” and the archaic proceduralism of “custom” can’t match. The appeal of the commons is that it allows us to lament the privacy of property without, at the same time, having to sacrifice an individualism—the capacity for meaningful, personal attachment—that we have come to cherish. The commons is, in this sense, liberalism’s name for what it doesn’t like about liberalism. Hence, the perfect fluency of Thomas Edward Scrutton (a highly successful commercial lawyer) complaining in 1881 that “the speculative builder and the wealthy landowner alike prey upon roadside wastes, and neighbouring Commons”: “the poor, who are deprived of any interest in the land, and the public, more and more restricted to the hard high road, are affected by the Policy of Enclosure and Individualism”. Reading closely, one can see that Scrutton elides what are actually three nonidentical constituencies—the “commons,” “the poor,” and “the public.” But to the degree that the elision works it’s because commonness could already, in 1881, serve as a kind of penumbral keyword for the opposite of “Enclosure and Individualism.” To see that the “commons” continues to function in this generic way, one need look no further than Michael Hardt and Antonio Negri’s recent call for a “democracy of the multitude” in which “we all share and participate in the common... —the air, the water, the fruits of the soil” and focus on “the practices of interaction, care, and cohabitation in a common world”.

Savagery, civilization, and property V: Colonial development and Neo-Malthusian conservationism

In the last post in this series we saw how Enlightenment-era stadial thought was passed on to modern commons theory through the aboriginal property rights debate among twentieth-century ecologists. Today I'll discuss what I believe two more lines of influence. (The full article is here.)

The first was by way of the work of anthropologists and scientists associated with British colonial development efforts under the aegis of colonial administrator Malcolm Hailey. Lord Hailey, after a career in the Indian Civil Service, was tapped to run the African Survey in the 1930s and the Colonial Research Committee in the 1940s, and was an advocate of multidisciplinary social science research, particularly anthropological, in the colonies.

The staff of Hailey’s African Survey seem to have created something of a nexus for stadial thought in the context of colonial development. London School of Economics anthropologist Lucy Mair’s chapter on land made heavy use of the stadial framework for considering “the evolution of the most suitable form of land tenure”:

Lucy Mair

In some areas land custom is changing rapidly under the influence of new conditions, such as the increase of the pressure of population or the spread of a market economy. These changes will eventually involve official intervention . . . ; the need must, for example, be envisaged for the definition and recording of title . . .

There is nothing peculiar to Africa in the general direction which the evolution of land custom is taking; its adjustment in response to economic changes is a natural process which would occur independently of any action taken by the administration. 

In Mair’s analysis, traditional, communal forms of African land tenure needed to progress to more private rights in order to encourage development:

All discussions on the subject agree as to the value of giving security to the occupier of land, and the further advantage of what is generally termed the individualization of tenures. It has been urged on different occasions that the extended system of rights, vested in the family or group, has proved in Africa to be an obstacle to improved agriculture.

Strikingly, Mair also reported on Hardin’s tragedy of the commons, avant la lettre, herdsman and all:

Those who have had to deal with East African conditions have added the . . . argument that there is little incentive to natives to reduce their live-stock in order to prevent the wastage of pasture and consequent erosion, since nothing done by the individual will avail unless his neighbours take corresponding action . . . 

Moreover, in a remarkable anticipation of later legal scholarship that highlighted potential “comedies of the commons” and “tragedies” of its disappearance,  she also warned of the advantages of common property in some situations: “The question of rights over grazing commonages presents its own difficulties; the partition of grazing grounds into small units would be a bar to the adoption of that rotational use of pasture which many hold to be the best preventive of erosion in East African conditions.”

Climate science, history, and the law

Bill Kovarik recently posted at "Environmental history timeline" on a lawsuit against Exxon-Mobil, raising some interesting questions. Some highlights:

The lawsuit is based in part on an investigation by the Center for International Environmental Law which accused Exxon-Mobil Oil Corp. of working to dismiss climate change science and political action despite having had a scientific understanding of climate change “as early as” three or four decades ago, (or sometimes 1977, or 1968). The research grew into an “Exxon Knew” campaign. It was greeted with enthusiasm by environmentalists like Al Gore and Bill McKibben and with skepticism by Independent Petroleum Association of America and by Exxon-Mobil itself.

The key issue seems to be when Exxon knew climate change involved C02 from fossil fuels. Many of the Exxon Knew stories start along these lines: “In the 1960s, the American Petroleum Institute (and / or Exxon) made a troubling discovery.”

From an historical standpoint, the question ought to involve the broader context of scientific research. If API and Exxon researchers knew about climate change, what about the rest of the engineering and scientific community?

The fact is that the topic was a constant source of concern and research across the related scientific communities for a century and a half. Scientists concerned with climatology and glaciology and many associated geophysical sciences have studied climate change for generations. 

As seen here, the Washington Post carried an article May 4, 1953 on a Gilbert Plass paper at American Geophysical Union, quoting him specifically pointing to fossil fuel use as increasing climate warming.  Plass and other climatologists regularly published on these and related topics, with much of that generation’s research converged in the International Geophysical Year (1957-58).

Kovarik goes on to discuss many other scientists and others who warned about greenhouse gas induced climate change beginning in 1856.

So, clearly, Exxon knew, but so did everyone else.

In confining the discussion to Exxon’s own knowledge and actions, for example in a series of Inside Climate News articles, we have a legal strategy rather than an appreciation for the history of science. When we say “Exxon knew” as early as the 1970s or 80s, we ignore the long trail of scientific discovery beforehand, and we leave the field open to highly selective interpretations of trends.

Savagery, civilization, and property IV: The aboriginal property rights debate

In the last post in this series we saw how modern commons theory tracked many of the features of stadial theory. In this post I begin trying to uncover the routes by which the early modern theory reached modern thinkers on property.

The modern commons theorists discussed in the last post did not explicitly refer to the Enlightenment or Romantic thinkers whose theories may have influenced them. Yet the striking similarities between these two groups of theories, separated though they were by two centuries, seem to provide evidence of influence. It is likely that thinking in terms of civilizational stages was simply so deeply entrenched in the intellectual baggage of educated Westerners, whether through study of the classics, of Blackstone, or of Gibbon, that modern commons theorists replicated its patterns as a matter of course. Nevertheless, I suggest we can also trace more concrete lines of influence through the intertwined disciplines of anthropology and human ecology, as well as through the worlds of international development and conservationism.

Eleanor Leacock

An important branch of the field of anthropology’s research agenda was largely set in the mid-nineteenth century by stadial theory, and thereafter developed to a significant degree in dialogue with it. Anthropological works that clearly influenced modern commons thought, in particular those cited by Demsetz in his important 1967 article, were very much part of this dialogue, thereby infusing his work and that of others writing in the economic tradition with a large dose of stadial thinking.

The Victorian-era thinkers who strongly influenced anthropology in its founding era — Henry Maine, Lewis Henry Morgan, Karl Marx, and Friedrich Engels — were themselves influenced by the stadial theories of the late eighteenth century, and saw societies as evolving through modes of subsistence or production, viewed largely through the lens of property. But while Maine saw the transition from common to private property as a sign of civilization, Morgan, and, following him, Marx and Engels, saw this transition as a form of injustice and source of inequality (though perhaps a necessary one). 

Morgan, based on his knowledge of American Indians and reading of classical sources, argued that property was a key factor in the evolution of society as it progressed from a state of savagery (based on hunting) to barbarism (based on herding and farming) to one of civilization:

The idea of property was slowly formed in the human mind, remaining nascent and feeble through immense periods of time. Springing into life in savagery, it required all the experience of this period and of the subsequent period of barbarism to develop the germ, and to prepare the human brain for the acceptance of its controlling influence. Its dominance as a passion over all other passions marks the commencement of civilization. It not only led mankind to overcome the obstacles which delayed civilization, but to establish political society on the basis of territory and of property. A critical knowledge of the evolution of the idea of property would embody, in some respects, the most remarkable portion of the mental history of mankind.

As twentieth century anthropology developed the tool of ethnographic fieldwork, the work of many anthropologists, particularly in North America, revolved around supporting or disproving Morgan’s evolutionary account, with one arena of contention concerning the question of whether “primitive” hunting societies had private property or not.

Coal as a green fuel

Earlier this year Environmental History published Germán Vergara's "How Coal Kept My Valley Green: Forest Conservation, State Intervention, and the Transition to Fossil Fuels in Mexico". Some excerpts:

This article explores how state policies and legislation of successive Mexican governments in the late nineteenth and early twentieth centuries sought to curb rapid deforestation by fostering the energy transition to fossil fuels (coal and oil) in industrializing regions of the country such as the Valley of Mexico and Monterrey.

*****

Anthracite coal breaker and power house buildings,
Madrid, Mexico, circa 1935

In the 1850s, both conservative and liberal governments in Mexico took an interest in forest conservation. In 1854, during General López de Santa Anna’s conservative administration, the recently created Ministry of Development (Ministerio de Fomento) asked mining districts nationwide for information about the extension and characteristics of the forests being logged for mining. The government agency also inquired about local regulations governing forest exploitation and reforestation efforts. In 1857 the new liberal government, despite ongoing military challenges from conservatives, sent a memorandum encouraging state governments to enact legislation protecting forests. In typical fashion for Mexican liberals, the government not only delegated the responsibility to local authorities but also made clear that conservation measures should not interfere with the timber needs of industries and mines.

Calls for forest conservation became more common in the 1860s. Key institutional actors in Mexican science, such as the Mexican Society of Geography and Statistics (Sociedad Mexicana de Geografía y Estadística), began publishing significant work on forest conservation. In one editorial, the editors of the Boletín (the society’s publication) expressed alarm over rapid forest loss. Like Río de la Loza, they blamed factory owners and the indigenous population, who “cut and destroy their only patrimony,” although they also criticized owners of large estates (hacendados). The journal also published the work by conservationists such as Romero Gil, who drew from Alexander von Humboldt and Mexican mining engineers to argue that forests prevented drought and fostered human health. In one article, Gil offered an overview of earlier forest legislation and called for reviving provisions from colonial forest laws, particularly those relating to coppicing (horca y pendón). In an effort to inspire analysis and discussion of earlier legislation, the Boletín reprinted an 1845 Mexican forest code, one of the first issued in independent Mexico.

*****

As coal production increased, it became clear to state officials that Mexico needed a modern legal framework to facilitate and regulate coal extraction. A heated debate broke out between those who argued that coal deposits ultimately belonged to the nation (following the tradition of the colonial mining ordinance, Ordenanzas de Minería) and those who defended the preeminence of private property rights. To a degree, the controversy was rooted in confusion over the natural composition of coal and other fossil fuels. For some experts, and seemingly many laypeople, the organic origins of coal and oil made them nonmineral. Critics of this position posited that although both were organic in origin, they had been formed by geologic nonorganic processes, thus qualifying them as minerals. Most experts agreed and considered both coal and oil as “fossil fuels” (combustibles fósiles). As such, coal and oil should fall under the old colonial tradition of state ownership that only governed minerals.

The matter was settled in 1884 when the federal government enacted a new mining code. The code’s authors were mostly interested in creating suitable conditions for Mexico’s industrialization and were perfectly aware that a key component of the project was the large-scale adoption of fossil fuels for industrial power. The new code recognized coal and oil as minerals (as under colonial law) but gave private owners full property rights to surface and subsoil mineral wealth. Thus the Mexican state relinquished its claim to being the ultimate proprietor of subsoil commodities, including coal and oil, and declared that private landowners could exploit those deposits without prior government authorization. The code also sought to stimulate coal and iron mining by exempting both from taxes for fifty years. It is important to note that scholars have often interpreted the mining code of 1884 as an attempt to attract foreign investment, overlooking its long-term effects on Mexico’s energy transition to fossil fuels. The code not only regulated the fossil fuel market; it created it. Beyond spontaneous market processes, it was lawmaking—that ultimate tool of politics and policymaking—that proved instrumental in Mexico’s transition to fossil fuels. The code remained the main legal framework for the coal and oil industry until the enactment of the Constitution of 1917.

Savagery, civilization, and property III: The commons theorists

In the last post in this series, we looked at the way early modern "stadial theory" connected between stages of civilization and property regimes. Now let us examine some of the classics of modern commons theory, noting the fondness of theorists for stories reminiscent of various aspects of stadial theory. I wish to highlight here not simply that commons theorists of many stripes tend to connect pressure on resources to property regimes, as unanimity on this point could plausibly be explained by observations of a pervasive phenomenon. It is rather the connection of these two parameters — pressure and property — with the early modern idea of civilizational stages characterized by hunting, pastoralism, agriculture, and sometimes commerce, that I find striking. Whether seeing these stages in terms of the march of Progress or a fall from Edenic bliss, nearly all commons theorists seem to be attracted to the basic narrative of stadial theory.

Garret Hardinʼs “Tragedy of the Commons” illustrated its argument against common property with a parable of a common pasture.  While neither Hardin nor William Forster Lloyd, from whom he borrowed the story, argued that society does or should progress along stages of development, their descriptions of the common pasture echoed some elements of stadial theory: shepherds have no “property” in their pastures, a characterization consistent with stadial thinking (and clearly disproved by historical work on actual common pastures).  Such pastures are subject to overgrazing, as in the story of Abraham and Lot adduced by Dalrymple.  Moreover, Hardinʼs article echoed stadial theory at several points, such as when he writes that “the logic of the commons has been understood for a long time, perhaps since the discovery of agriculture or the invention of private property in real estate,”  or in his argument that increasing pressure on resources drives enclosure of the commons:

Perhaps the simplest summary of this analysis of man’s population problems is this: the commons, if justifiable at all, is justifiable only under conditions of low-population density. As the human population has increased, the commons has had to be abandoned in one aspect after another.

First we abandoned the commons in food gathering, enclosing farm land and restricting pastures and hunting and fishing areas.

Approximately contemporaneously with Hardin’s article, Harold Demsetz published his “Toward a Theory of Property Rights.”  Here the similarities to stadial theory were yet more prominent. Demsetz, relying on the work of anthropologists who had studied native tribes of the Canadian northeast, described societies that had moved from hunting to husbandry of fur-bearing animals (husbandry being either a sort of pastoralism or agriculture). Demsetz argued that this change in subsistence methods was accompanied by a change in property arrangements — lack of private property gave way, as a response to new, commercial demands for pelts, to defined property rights in land:

Herman Moll, inset from Beaver Map (1715)

We may safely surmise that the advent of the fur trade had two immediate consequences. First, the value of furs to the Indians was increased considerably. Second, and as a result, the scale of hunting activity rose sharply. Both consequences must have increased considerably the importance of the externalities associated with free hunting. The property right system began to change, and it changed specifically in the direction required to take account of the economic effects made important by the fur trade.

While not tracking Enlightenment stadial theory precisely, Demsetz’s account overlapped with it in several respects (not at all coincidentally, as we will see): echoes of the progression hunting-pastoralism-agriculture-commerce, an accompanying shift to increasingly defined property rights, and an explanatory mechanism based on increasing pressure on the resource.  Regarding this last point, Demsetz’s consideration of externalities was markedly similar to Adam Smith’s argument that “when flocks and herds come to be reared property then becomes of a very considerable extent; there are many opportunities of injuring one another and such injuries are extremely pernicious to the sufferer.”

Demsetz’s work was extremely influential on property theorists in the legal academy, many of whom continue to make use of the stadial paradigm. James Krier, for instance, recently advanced a modified Demsetzian account of the evolution of property rights from hunter-gatherer societies with communal ownership to agricultural ones with individual ownership.  Demsetz’s model also had major impacts on the economic literature on the commons (e.g. Anderson & Hill's "The Evolution of Property Rights" and the literature it spawned),  as well as on the “common pool resources” literature associated with Elinor Ostrom.

Perhaps less obvious, but in some respects uncannily similar to Adam Smith’s theory, is Carol Rose’s influential classification of management strategies for common resources.

Running water for the officials, rainwater for the poor

Venetian aqueduct in Crete

The latest issue of Water History has an article by Yannis Spyropoulos, "Running water for the officials, rainwater for the poor: symbolic use and control of water in early modern Ottoman Crete". The abstract:

This paper deals with the issue of water management on the island of Crete from the beginning of the Ottoman–Venetian war in 1645 to the beginning of its Egyptian administration in 1830. Based primarily on information given by Kandiye’s (mod. Herakleion) Shariah court records, but also on a variety of published and unpublished archival material from Turkey, Greece, and France, it explores the socioeconomic aspects of water-resource exploitation in the island’s urban centers, analyzes the involvement of various local and imperial actors in water management, and locates the struggles created in the above-mentioned processes. Through a detailed analysis of the challenges faced by the administration and the population of an insular area with limited water resources, such as Crete, the article tries to take a fresh look at water management on the Ottoman periphery: It redirects the researchers’ focus from heavily-populated cities and large cultivated plains to the examination of smaller regions with no major hydraulic and irrigation networks and puts emphasis on the symbolic use of water in the socioeconomic context of the Ottoman Empire.

And from the conclusion:

I would like to underline the importance of running water in early modern Ottoman Crete as a symbol of financial and administrative power. In Islamic Law, water was considered to be a public good reserved for everyone, regardless of class and officialdom. Yet, in an insular space with limited water resources, such as Crete, Islamic canonical treatment of water was often overruled in favor of those with access to wealth and power. In this context, the ownership of running water became a status indicator for the island’s elites and a field of competition and negotiation between various officials. In early Ottoman Crete, it was mainly the sancakbeyis and other non-Cretan officials who undertook the task of finding and channeling running water to the island’s three cities, yet, through time, as local elites started rising to power, mainly through their connection with the military, the management of water resources gradually passed into the hands of both imperial and local actors. Their origins notwithstanding, the tactic used by all these elites was similar: They claimed the water of all the springs discovered in the vicinities of their cities by creating infrastructure connecting the former to the latter. After ensuring the appropriation of a large amount of water resources for their own establishments, they provided the rest of the water for public use –mainly through private endowments—thus presenting themselves as benefactors in the eyes of the local populace. The latter’s restricted access to running water, on the other hand, not only made them turn to rainwater in order to quench their thirst, but it also seems to have been one of the most probable causes of the frequent sabotage of the water-supply networks of Crete, a reasonable reaction if seen in the light of the following Koranic verse: “And We send the fecundating winds, then cause the rain to descend from the sky, therewith provide you with water (in abundance), though ye are not the guardians of its stores”.

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: