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Savagery, Civilization, and
Property: Theories of Societal
Evolution and Commons Theory
David B. Schorr*
This article argues that modern commons theory has been substantially
shaped by early modern ways of thinking about the evolution of
civilizations. In particular, it has hewed closely to models that
gelled in the Enlightenment-era works known as “stadial theory,”
by authors such as Lord Kames and Adam Smith, and passed down
to the twentieth century, to theorists including Garrett Hardin,
Harold Demsetz, and Elinor Ostrom. It argues that stadial thinking
reached modern commons theorists largely through the disciplines
of anthropology and human ecology, paying particular attention
to the debate among anthropologists over aboriginal property
rights, colonial and international development discourse, and neo-
Malthusian conservationism. The effects of stadial theories’ influence
include a belief among many that private property represents a more
advanced stage of civilization than does the commons; and among
others a Romantic yearning to return to an Eden of primitive and
community-based commons. Thus do deep cultural attitudes, rooted
in the speculative thinking of an earlier age, color todayʼs theories
— positive and normative — of the commons.
- Senior Lecturer, Buchmann Faculty of Law, Tel Aviv University. Thanks to Sharon Kingsland, Fabien Locher, Lucy McCann, Michel Morin, Carol Rose, and Natty Wolloch for their helpful suggestions, and to Elizabeth Cox and Aviya Basha for research assistance. This research was supported by the Israel Science Foundation (grant no. 1822/16). Cite as: David B. Schorr, Savagery, Civilization, and Property: Theories of Societal Evolution and Commons Theory , 19 T heoreTical inquiries L. 507 (2018).
508 Theoretical Inquiries in Law [Vol. 19.2:
I ntroductIon
This article makes a simple claim: that the commons theory of the last half
century, in its various forms and schools, has been substantially shaped by early
modern ways of thinking about the evolution of civilizations. In particular,
it has hewed closely to models that gelled in the Enlightenment-era works
known as “stadial theory,” passed down to the twentieth century through the
disciplines of anthropology and human ecology, and strongly entrenched in
the patterns of thought of property theorists to this day.
I do not wish to argue that recent thinkers deliberately or consciously based
their theories on early modern precedents, nor do I claim that their theories
simply recast old theories, pouring old wine into new bottles. What I wish to
argue, rather, is that modern commons theory is a series of variations on a theme,
the theme being the passage of human societies from stages of “barbarism”
or “savagery” to “civilization.” This way of thinking, largely elaborated in
the eighteenth century, has proved to be so powerful that it continues to shape
the discourse around common property and environmental commons into the
twenty-first. As Nathaniel Wolloch has argued with respect to similarities between
stadial theory and Norbert Elias’s civilizing-process theory, “the similarities
between these two perspectives are much clearer than their differences, and
point to a continuing tradition in modern historiographical interpretations of
the rise of civilization.”^1 For Elias’s theory substitute property theory, and for
historiographical interpretations of the rise of civilization substitute theoretical
interpretations of the rise of private property, and you have my argument.
The significance of this claim lies not only in its implication that modern
commons theory has been somewhat confined by the straits of a discourse
of which it is not even always aware. It lies also in that commons theory’s
portrayals of transitions between property regimes largely partake either
of Enlightenment assumptions of civilizational progress or of a Romantic
reaction to this attitude, with its valorization of the primitive. Thus do deep
cultural attitudes, rooted in the speculative thinking of an earlier age, color
todayʼs theories — positive and normative — of the commons.
To set the stage, consider the concrete examples or allegories used by
commons theorists of the last half century, discussed in Part I. Nearly without
exception, they have skipped over such familiar but prosaic commons as
cooperatives, condominiums, corporations, and neighborhood associations, in
favor of studies of the exotic worlds of hunters, herdsmen, and smallholding
1 Nathaniel Wolloch, The Civilizing Process, Nature, and Stadial Theory , 44 eighTeenTh-cenTury sTud. 245 (2011).
510 Theoretical Inquiries in Law [Vol. 19.2:
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.^5
5 J ohn dalryMPle , an essay Towards a general hisTory of P roPerTy in greaT briTain 86–88 (London, A. Millar 1757). See discussion in sTein, legal evoluTion, supra note 2, at 23–25; M eek, supra note 2, at 99–102.
2018] Savagery, Civilization, and Property 511
The jurist Henry Home, Lord Kames, also connected the stages of society
to property law in his Historical Law Tracts :
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.^6
Elsewhere Kames connected the advance between stages with the pressure
of growing populations on resources:
Plenty of food procured by hunting and fishing, promotes population:
but as consumption of food increases with population, wild animals,
sorely persecuted, become not only more rare, but more shy. Men, thus
pinched for food, are excited to try other means for supplying their
wants. A fawn, a kid, or a lamb, taken alive and tamed for amusement,
suggested probably flocks and herds, and introduced the shepherd-state.
... The shepherd-state is friendly to population. Men by plenty of
food multiply apace.... Necessity, the mother of invention, suggested
agriculture. When corn growing spontaneously was rendered scarce
by consumption, it was an obvious thought to propagate it by art...^7
6 henry hoMe , lord kaMes , hisTorical law T racTs 144–46 (Edinburgh, A. Kincaid & J. Bell, 1758) (footnotes omitted and spelling modernized). See Meek, supra note 2, at 102–07; sTein, legal evoluTion, supra note 2, at 27–28. 7 1 henry hoMe , lord kaMes , skeTches of The hisTory of M an 55–56 (James A. Harris ed., Liberty Fund 2007) (1788). See also id. at 59; 2 id. at 561–
2018] Savagery, Civilization, and Property 513
When the lakes and the forests are exhausted of fish and game, [man]
must seek new means of procuring subsistence....
When the inhabitants are not yet very numerous, they breed cattle,
and become pastors; but when they are greatly multiplied, and are
obliged to find subsistence within a small compass, they must then
cultivate the land, and become agriculturalists....
What follows from the necessity of cultivation?
The necessity of property. 11
This survey of late-Enlightenment stadial thought would not be complete
without William Blackstone, whose influence on modern property theory
might be described as legendary.^12 Blackstone’s account of the development
of private property follows the stadial model developed by his contemporaries
from north of the border:
[W]hile the earth continued bare of inhabitants, it is reasonable to
suppose that all was in common among them, and that every one took
from the public stock to his own use such things as his immediate
necessities required....
But when mankind increased in number, craft, and ambition, it became
necessary to entertain conceptions of more permanent dominion; and
to appropriate to individuals not the immediate use only, but the very
substance of the thing to be used....
Such as were not contented with the spontaneous product of the earth,
sought for a more solid refreshment in the flesh of beasts, which they
obtained by hunting. But the frequent disappointments incident to that
method of provision, induced them to gather together such animals as
were of a more tame and sequacious nature, and to establish a permanent
property in their flocks and herds, in order to sustain themselves in a
less precarious manner....
As the world by degrees grew more populous, it daily became more
difficult to find out new spots to inhabit, without encroaching upon
former occupants: and, by constantly occupying the same individual
spot, the fruits of the earth were consumed, and its spontaneous produce
destroyed, without any provision for future supply or succession. It
therefore became necessary to pursue some regular method of providing
11 2 helvéTius, a TreaTise on Man; his inTellecTual faculTies and his educaTion 424–25 (W. Hooper trans., London, Vernor, Hood & Sharpe 1810) (1773). See also id. at 20, 493; M eek, supra note 2, at 133–34. 12 See David B. Schorr, How Blackstone Became a Blackstonian , 10 TheoreTical inquiries l. 103 (2009).
514 Theoretical Inquiries in Law [Vol. 19.2:
a constant subsistence; and this necessity produced, or at least promoted
and encouraged, the art of agriculture. And the art of agriculture, by a
regular connection and consequence, introduced and established the
idea of a more permanent property in the soil than had hitherto been
received and adopted....
Necessity begat property... 13
It bears noting that while these stadial theories were presented as positive
theories of societal development, in their historical context they typically
made an implicit, normative claim — that property institutions could, and
should, progress to increasingly private property. 14
It also bears noting that opponents of such “progress,” while opposing
the normative tint of the stadial story, stayed firmly within its descriptive
framework. 15 Writers from the Roman Lucretius to the Romantics of the
nineteenth century considered humankind to have evolved through the same
stages as the Scottish thinkers discussed above, but valorized early stages,
with their common property arrangements, holding up the “noble savage” as
an ideal.^16 As Smithʼs contemporary, Jean-Jacques Rousseau, wrote:
So long as men remained content with their rustic huts, so long as
they were satisfied with clothes made of the skins of animals and sewn
together with thorns and fish-bones... they lived free, healthy, honest
and happy lives.... But... from the moment it appeared advantageous
to any one man to have enough provisions for two, equality disappeared,
property was introduced, work became indispensable, and vast forests
became smiling fields, which man had to water with the sweat of his
brow, and where slavery and misery were soon seen to germinate and
grow up with the crops.^17
13 williaM blacksTone, 2 coMMenTaries 3–8. See Meek, supra note 2, at 177–79. 14 rahMaTian, supra note 4, at 144. See also Nathaniel Wolloch, The Idea of Historical Progress in the Transition from Enlightenment Historiography to Classical Political Economy , 9 adaM sMiTh rev. 75, 76 (2016). 15 See Fritz L. Kramer, Eduard Hahn and the End of the “Three Stages of Man , ” 57 geograPhical rev. 73, 75 (1967). 16 Jean-Jacques rousseau, Discourse: The Second Part , in The social conTracT and discourses 207 (G.D.H. Cole trans., 1923) (1754); George Boas, Primitivism , in 3 dicTionary of The hisTory of ideas 557 (Philip P. Wiener ed., 1973); ThoMas hylland eriksen & finn siverT nielsen, a hisTory of anThroPology 12– (2d ed. 2013); Kramer, supra note 15, at 75, 78. 17 rousseau , supra note 16, at 214–15.
516 Theoretical Inquiries in Law [Vol. 19.2:
First we abandoned the commons in food gathering, enclosing farm
land and restricting pastures and hunting and fishing areas.^22
Approximately contemporaneously with Hardin’s article, Harold Demsetz
published his Toward a Theory of Property Rights. 23 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:
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.^24
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. 25 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.”^26
22 Id. at 1248. 23 Harold Demsetz, Toward a Theory of Property Rights , 57 aM. econ. rev. 347 (1967). 24 Id. at 352. 25 See also Armen A. Alchian & Harold Demsetz, The Property Right Paradigm , 33 J. econ. hisT. 16, 19–25 (1973). For an analysis pointing out the similarities between Demsetz’s account and the earlier theories of Locke and Blackstone, see Carol M. Rose, Evolution of Property Rights , in 2 The new Palgrave dicTionary of law and econoMics 93, 94 (1998). 26 sMiTh, supra note 9, at 33–34.
2018] Savagery, Civilization, and Property 517
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. 27 Demsetz’s model
also had major impacts on the economic literature on the commons,^28 as well
as on the “common pool resources” literature associated with Elinor Ostrom.^29
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.^30 Rose sets out four “management techniques” — or legal
regimes — that can be used to keep exploitation or use at an efficient level:
In “Do-Nothing” there are no legal controls on use; “Keepout” controls who
is entitled to exploit the resource and who not; “Rightway” prescribes how
users may use or exploit the resource; and “Property” grants individualized
property rights to users. Each is progressively more sophisticated and better
at preventing overuse of the resource, but also more expensive to run, and
so society is best off, Rose argues, in climbing the ladder of legal regimes as
resource congestion increases. Not only is Rose’s model a four-stage theory;
it also tracks Smith’s association of increasing pressure on a resource with
increasingly elaborate legal regimes culminating in private property.^31
Finally, the massive literature on “common property resources” identified
with Elinor Ostrom, the International Association for the Study of the Commons,
and related institutions, seems to borrow from stadial theory in several respects.
The empirical studies in this body of work were carried out primarily with
regard to the (now) exotic worlds of hunters, shepherds, and peasant farmers
about which stadial theorists wrote, not to the more familiar (to most of
us) worlds of common property in urban dwellings, businesses, or cultural
endeavors;^32 a tendency all the more striking in light of Ostrom’s background
27 James E. Krier, Evolutionary Theory and the Origin of Property Rights , 95 cornell l. rev. 139, 157–59 (2009). 28 See for example Terry L. Anderson & P.J. Hill, The Evolution of Property Rights: A Study of the American West , 18 J.l. & econ. 163 (1975) and the literature it spawned. 29 See, e.g. , Bonnie J. McCay & James M. Acheson, Human Ecology of the Commons , in The quesTion of The coMMons 1, 17, 20–21 (Bonnie J. McCay & James M. Acheson eds., 1987) [hereinafter: The quesTion of The coMMons]. 30 Carol M. Rose, Rethinking Environmental Controls: Management Strategies for Common Resources , 40 duke l.J. 1 (1991). 31 See sMiTh, supra note 9. 32 Ostrom’s lead article in the first issue of the International Journal of the Commons identified fishery, forestry, irrigation, water management, and animal husbandry
2018] Savagery, Civilization, and Property 519
light of the specific rules of the particular canal.... The final decisions
of the court are recorded, but not the proceedings.^37
More generally, hundreds of studies on common pool resources in the
Ostromian vein followed, holding up indigenous commons as a model for
sustainable management of resources.^38 As one self-critical member of the
Ostrom school has written,
The idea of the “commons” harkens to a mythic time — before The
Fall or before Capitalism or before The Gods Became Crazy — when
people lived in harmony with each other and with nature and hence there
was no need for the institutions of private property.... The romantic
appeal of “the commons” is doubtless part of the old Western suspicion
that “individualism” is flawed, and that a better way of life could be
found in small rural communities where people shared in common
even the very land upon which they depended.... [R]omanticization
of prestate, preindustrial, pre-Columbian, pre-whatever human society
is central to this narrative.^39
III. F rom stadIal theory to commons theory
The modern commons theorists discussed above 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
37 osTroM, supra note 32, at 71-72 (notes omitted). 38 See Bonnie J. McCay, Community and the Commons: Romantic and Other Views , in coMMuniTies and The environMenT: eThniciTy , gender , and The sTaTe in coMMuniTy - based conservaTion 180, 181 (Arun Agrawal & Clark C. Gibson eds., 2001). Ostrom herself said late in life: “I am deeply indebted to the indigenous peoples in the U.S. who had an image of seven generations being the appropriate time to think about the future. I think we should all reinstate in our mind the seven-generation rule,” Elinor Ostrom, Crafting Rules to Sustain Resources, remarks delivered May 8, 2008, http://www.aapss.org/news/crafting- rules-to-sustain-resources (last visited Feb. 12, 2018). 39 McCay, supra note 38, at 180-81 (citations omitted); See also John R. Wagner, Water and the Commons Imaginary , 53 currenT anThroPology 617, 621 (2012).
520 Theoretical Inquiries in Law [Vol. 19.2:
theorists replicated its patterns as a matter of course. 40 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.
A. The Aboriginal Property Rights Debate
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,^41 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.^42 But while Maine
saw the transition from common to private property as a sign of civilization,^43
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:
40 See Wolloch, supra note 1; M eek, supra note 2, at 2; sTein, Four Stage Theory , supra note 2, at 409. For stadial theory in Gibbon (edward gibbon, The hisTory of The decline and fall of The roMan eMPire (London, William Strahan & Thomas Cadell, 1776)), see M eek, supra note 2, at 175; J.G.A. Pocock, Gibbon and the Shepherds: The Stages of Society in the Decline and Fall , 2 hisT. eur. ideas 193 (1981). 41 Demsetz, supra note 23. 42 See Siomonn Pulla, A Redirection in Neo-Evolutionism?: A Retrospective Examination of the Algonquian Family Hunting Territories Debates , 7 hisT. anThroPology ann. 170 (2011); Chris Hann, Property: Anthropological Aspects , in 19 inTernaTional encycloPedia of The social and behavioral sciences 153 (2d ed. 2015); sTein , legal evoluTion , supra note 2, at 107–11; george w. sTocking , J r., vicTorian anThroPology 11 (1987). 43 henry suMner M aine , ancienT law 237–94 (4th Am. ed., 1906) (1861). See sTein, legal evoluTion, supra note 2, at 107; Hann, supra note 42.
522 Theoretical Inquiries in Law [Vol. 19.2:
their opposing positions, claiming that Speck’s work supported his own account,
while ignoring the normative subtext of Leacock’s so antagonistic to his own.
Speck’s research focused on showing that the native groups of the
northeastern U.S. and Canada had had property from a very early stage,
before contact with Europeans. His work was “whipped into a ‛disproof’
of Morgan, Marx, and Engels by antievolutionists.” 47 At the opening of his
major 1915 article on the subject, he explained what was at stake in terms of
evolutionary theories of property and society:
The idea has always prevailed, without bringing forth much criticism,
that, in harmony with other primitive phenomena, the American Indians
had little or no interest in the matter of claims and boundaries to the
land which they inhabited. This notion has, in fact, been generally
presupposed for all native tribes who have followed a hunting life, to
accord with the common impression that a hunter has to range far, and
wherever he may, to find game enough to support his family.
Whether or not the hunting peoples of other continents, or even of
other parts of America, have definite concepts regarding individual or
group ownership of territory, I should at least like to show that the Indian
tribes of eastern and northern North America did have quite definite
claims to their habitat. Moreover, as we shall see, these claims existed
even within the family groups composing the tribal communities....
It would seem, then, that such features characterize actual ownership
of territory. 48
In later articles, Speck and his supporters explicitly argued for the
aboriginality of property in hunting territories, rejecting the thesis that these
47 J erry d. M oore , visions of culTure : an inTroducTion To anThroPological T heories and T heorisTs 219 (3d ed., 2009). See Frank G. Speck & Loren C. Eiseley, Montagnais-Naskapi Bands and Family Hunting Districts of the Central and Southeastern Labrador Peninsula , 85 Proc. aM. Phil. soc’y 215, 238 (1942); Richard B. Lee & Richard H. Daly, Eleanor Leacock, Labrador, and the Politics of Gatherer-Hunters , in froM labrador To saMoa : The Theory and P racTice of eleanor burke leacock 33, 34 (Constance R. Sutton ed., 1993); Christine Ward Gailey, Eleanor Burke Leacock (1922–1987) , in woMen anThroPologisTs: selecTed biograPhies 215, 217 (Ute Gacs, Aisha Khan, Jerrie McIntyre & Ruth Weinberg, eds., 1989). 48 Frank G. Speck, The Family Hunting Band as the Basis of Algonkian Social Organization , 17 aM. anThroPologisT (n.s.) 289 (1915); Frank G. Speck, The Basis of American Indian Ownership of Land , old P enn weekly rev., Jan. 16, 1915, at 491, version cited in Demsetz, supra note 23, at 351.
2018] Savagery, Civilization, and Property 523
developed only in response to the increased demand for beaver pelts spurred
by European traders.^49
Speck’s position was thus actually diametrically opposed to that of Demsetz,
who argued that the aboriginal peoples of northeast Canada developed private
property in land only in response to the increasing value of hunting brought
about by contact with European traders who placed high values on furs. 50
Whether or not Demsetz realized that Speck’s position contradicted his own,
it is clear that Demsetz was reading anthropological literature deeply engaged
with stadial theory.
Leacock’s work, on the other hand, actually did support Demsetz’s position
that property rights had developed among the native peoples of the Northeast
as a response to increased pressure on the fur resources brought about by
colonial trade. Leacock was firmly in the evolutionist camp of anthropology,^51
and believed that it was only colonialism that had led to private property in
trapping grounds.^52 A Marxist feminist, her work on the natives of Labrador —
work that she herself described as “polemic” — was directed against Speck’s
anti-Marxist theses and dedicated to showing that communism had existed
in this society before it was corrupted by colonialist commerce into adopting
private property.^53 She advanced an evolutionary, three-stage model of society
à la Morgan and Engels, with property regimes deteriorating from primitive
communism to capitalist private property.^54 But the work cited by Demsetz
was published in the 1950s, when Leacock hid her Marxism.^55 We thus have
the tasty irony of Demsetz, a director of the libertarian Mont Pelerin Society,
basing his classic article on the work that was (probably unknown to him)
49 See, e.g. , Frank G. Speck & Loren C. Eiseley, Significance of Hunting Territory Systems of the Algonkian in Social Theory , 41 aM. anThroPologisT (n.s.) 269 (1939); John M. Cooper, Is the Algonquian Family Hunting Ground System Pre-Columbian? , 41 aM. anThroPologisT (n.s.) 66 (1939). 50 Demsetz, supra note 23, at 351–53. 51 See, e.g. , Eleanor Leacock, Introduction to Social Stratification and Evolutionary Theory: A Symposium , 5 eThnohisTory 193 (1958). 52 Eleanor Leacock, The Montagnais “Hunting Territory” and the Fur Trade , 56 aM. anThroPologisT (Pt. 2), Memoir No. 78 (1950). 53 Eleanor Burke Leacock, Introduction , in frederick engels, origin of The faMily, P rivaTe P roPerTy and The sTaTe 1, 7, 19 (1972); Eleanor Burke Leacock, Being an Anthropologist , in froM labrador To saMoa, supra note 47, at 19. See Pulla, supra note 42, at 184–85. 54 See Eleanor B. Leacock, Lewis Henry Morgan on Government and Property , in new direcTions in P oliTical econoMy : an aPProach froM anThroPology 307 (Madeline B. Léons & Frances Rothstein eds., 1979). 55 See M oore , supra note 47, at 221.
2018] Savagery, Civilization, and Property 525
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”:^60
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...^61
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.^62
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. 63
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....^64
David Mills, British Anthropology at the End of Empire: The Rise and Fall of the Colonial Social Science Research Council, 1944–1962 , 6 revue d’hisToire des sciences huMaines 161, 163–68 (2002). 60 hailey, supra note 59, at 864. For Mair’s authorship of this chapter, see Cell, Lord Hailey , supra note 59, at 498. 61 hailey, supra note 59, at 830. See also id. at 842. 62 Id. at 865. 63 Id. at 868–69. See also id. at 863–64. 64 Id. at 869.
526 Theoretical Inquiries in Law [Vol. 19.2:
Moreover, in a remarkable anticipation of later legal scholarship that
highlighted potential “comedies of the commons” and “tragedies” of its
disappearance,^65 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.”^66
Anthropologist Charles Kingsley Meek’s 1946 Land Law and Custom in the
Colonies , a study initiated by Hailey’s committee, opened with an argument
that increasing population required rigid rules of land tenure. 67 Lord Hailey
himself contributed an introduction to the volume, in which he laid out a stadial
framework for understanding changes in land tenure in the context of colonial
development, apparently heavily reliant on Mair’s chapter for the African
Survey. The transition between “stages of development” — from a pastoral
economy to subsistence agriculture and then to market-oriented production
— is accompanied, he wrote, by “automatic” changes in the system of land
tenure, with a growing conception of individual ownership. 68 “A further stage
arrives when, with the growing density of population and increased pressure
on the land, holdings acquire a transferable value, and rights in them become
more completely commercialized.”^69
In the normative dimension, Hailey generally approved of this evolution
of property rights on efficiency grounds:
In the extensive Colonial areas in which the system of landholding
is based on the conception of a collective right in the land, the most
conspicuous effect of economic development will... appear in the
progressive individualization of holdings. That process will have the
economic advantage of giving to the holders a greater sense of security
and a greater incentive to a more intensive type of cultivation...^70
But, building on Mair’s insight, Hailey also warned of potentially deleterious
effects of private property:
65 See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property , 53 U. chi. l. rev. 711 (1986); Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets , 111 harv. l. rev. 621 (1998). 66 hailey, supra note 59, at 870. 67 C.K. M eek, land law and cusToM in The colonies vi, 1 (1946). 68 Lord Hailey, Introduction by Lord Hailey , in M eek, supra note 67, at xii–xiii. 69 Id. at xii. 70 Id. at xix.
