Property week 3 lecture
LA103 Introduction to the Law of Property Relations 2019-2020 Lecture 5 Political Economy and the
Development of Modern Land Law (I) Lecture Notes
Introduction following on from our discussion of theories of property last week, now we turn more
squarely to a consideration of history, and to the development of the modern system of land law as we
know it. It is important to have some grasp of this history in order to appreciate how the system works
now and why it looks and behaves in the often idiosyncratic way that it does. There is a lot of history
grandfathered into the structures and concepts that make up the system of property now.
As we discussed to some extent last week, property also forms an important basis for the wider function
of society, structuring and providing the material manifestation of various social, political and economic
forms of relation. So, in addition to teaching you some of the basic underlying structures of land law,
these lectures will also attempt to situate some of the developments in land law within a wider historical
context. It’s my hope that having some of this context will help you to make sense of the law, so you can
see that its development does not happen in a vacuum, but in response to other pressures.
The Relevance of History
History is incredibly important to the study of law and particularly land law. As Gray and Gray note
“there was nothing inevitable about the eventual shape of modern land law, but it remains true that the
law of today is still heavily impressed with the form of ancient legal and intellectual constructs”
(Elements of Land Law, 2).
What is Political Economy?
Political economy generally refers to the study of the production and distribution of wealth in society
and how this is influenced or managed by governments. As a discourse and a discipline, it emerged in
the late eighteenth century alongside the emergence of conceptions of the free market. Think Adam
Smith and the Wealth of Nations, but also Karl Marx and Capital.
Political economy is a useful perspective for us in relation to the history of land law, as it allows us to
examine the particular political and economic contexts in which land law grew and changed.
The Great Transformation (Karl Polanyi)
, • Our source for political economy will be work of Karl Polanyi, The Great Transformation. Polanyi
details a process of historical transformation by which the idea of the free market came to be
the dominant organising force in society, which had profound implications for how we think
about land and regulate its use.
• The free or self-regulating market, according to Polanyi, is an understanding of the market as
regulated completely by prices with very limited intervention from government.
• He describes the process of creating a market in land as one of disembedding land from other
forms of social relation and making it subject to the market. This is understood as a process of
commodification. However, land is a fictitious commodity, that is, it is not produced for sale on
a market like other commodities.
As he writes, “[w]hat we call land is an element of nature inextricably interwoven with man’s
institutions. To isolate it and form a market for it was perhaps the weirdest of all the undertakings of our
ancestors.” (Polanyi, The Great Transformation, 187).
He also describes this overall process as one of a double movement whereby law at once serves to
‘disembed’ land and nature from other forms of social relation and then to protect it from complete
exploitation.
o “Social history in the nineteenth century was thus the result of a double movement: the extension of
the market organization in respect to genuine commodities was accompanied by its restriction in
respect to fictitious ones. While on the one hand markets spread all over the face of the globe and the
amount of goods involved grew to unbelievable dimensions, on the other hand a network of measures
and policies was integrated into powerful institutions designed to check the action of the market
relative to labor, land, and money” (Polanyi, The Great Transformation, 79).
The Commons
The podcast you listened to before this lecture about the right to roam provides a good example of this
double movement in history. We’ll look at this specific example before examining it as a more general
perspective on the history of land law. In the medieval period, land was not regarded as a commodity,
instead it was embedded in a relatively strict social hierarchy and not very easily bought or sold.
-One of the key features of the feudal manorial system of land holding was the waste lands or the
commons. As A.W.B. Simpson notes,
o 'Over the waste land the villagers had customary rights to graze their cattle, dig turf, gather wood and
the like, and they had similar rights over the open fields which were from time to time out of cultivation.
The cattle pastured by day on the waste land, and at night moved on to the arable, thereby manuring
the ground.” (Simpson, A History of the Land Law, 1986: 156)
LA103 Introduction to the Law of Property Relations 2019-2020 Lecture 5 Political Economy and the
Development of Modern Land Law (I) Lecture Notes
Introduction following on from our discussion of theories of property last week, now we turn more
squarely to a consideration of history, and to the development of the modern system of land law as we
know it. It is important to have some grasp of this history in order to appreciate how the system works
now and why it looks and behaves in the often idiosyncratic way that it does. There is a lot of history
grandfathered into the structures and concepts that make up the system of property now.
As we discussed to some extent last week, property also forms an important basis for the wider function
of society, structuring and providing the material manifestation of various social, political and economic
forms of relation. So, in addition to teaching you some of the basic underlying structures of land law,
these lectures will also attempt to situate some of the developments in land law within a wider historical
context. It’s my hope that having some of this context will help you to make sense of the law, so you can
see that its development does not happen in a vacuum, but in response to other pressures.
The Relevance of History
History is incredibly important to the study of law and particularly land law. As Gray and Gray note
“there was nothing inevitable about the eventual shape of modern land law, but it remains true that the
law of today is still heavily impressed with the form of ancient legal and intellectual constructs”
(Elements of Land Law, 2).
What is Political Economy?
Political economy generally refers to the study of the production and distribution of wealth in society
and how this is influenced or managed by governments. As a discourse and a discipline, it emerged in
the late eighteenth century alongside the emergence of conceptions of the free market. Think Adam
Smith and the Wealth of Nations, but also Karl Marx and Capital.
Political economy is a useful perspective for us in relation to the history of land law, as it allows us to
examine the particular political and economic contexts in which land law grew and changed.
The Great Transformation (Karl Polanyi)
, • Our source for political economy will be work of Karl Polanyi, The Great Transformation. Polanyi
details a process of historical transformation by which the idea of the free market came to be
the dominant organising force in society, which had profound implications for how we think
about land and regulate its use.
• The free or self-regulating market, according to Polanyi, is an understanding of the market as
regulated completely by prices with very limited intervention from government.
• He describes the process of creating a market in land as one of disembedding land from other
forms of social relation and making it subject to the market. This is understood as a process of
commodification. However, land is a fictitious commodity, that is, it is not produced for sale on
a market like other commodities.
As he writes, “[w]hat we call land is an element of nature inextricably interwoven with man’s
institutions. To isolate it and form a market for it was perhaps the weirdest of all the undertakings of our
ancestors.” (Polanyi, The Great Transformation, 187).
He also describes this overall process as one of a double movement whereby law at once serves to
‘disembed’ land and nature from other forms of social relation and then to protect it from complete
exploitation.
o “Social history in the nineteenth century was thus the result of a double movement: the extension of
the market organization in respect to genuine commodities was accompanied by its restriction in
respect to fictitious ones. While on the one hand markets spread all over the face of the globe and the
amount of goods involved grew to unbelievable dimensions, on the other hand a network of measures
and policies was integrated into powerful institutions designed to check the action of the market
relative to labor, land, and money” (Polanyi, The Great Transformation, 79).
The Commons
The podcast you listened to before this lecture about the right to roam provides a good example of this
double movement in history. We’ll look at this specific example before examining it as a more general
perspective on the history of land law. In the medieval period, land was not regarded as a commodity,
instead it was embedded in a relatively strict social hierarchy and not very easily bought or sold.
-One of the key features of the feudal manorial system of land holding was the waste lands or the
commons. As A.W.B. Simpson notes,
o 'Over the waste land the villagers had customary rights to graze their cattle, dig turf, gather wood and
the like, and they had similar rights over the open fields which were from time to time out of cultivation.
The cattle pastured by day on the waste land, and at night moved on to the arable, thereby manuring
the ground.” (Simpson, A History of the Land Law, 1986: 156)
