Property as thing- ownership: the Blackstonian Conception

In everyday common sense, ‘property’ is usually understood in terms of things and rights to things – in terms of thing- ownership. ‘Most people, including most specialists in their unprofessional moments’, writes Thomas C Grey, ‘conceive of property as things that are owned by persons’. ‘Ownership’ is taken to mean having ‘exclusive control of something – to be able to use it as one wishes, to sell it, give it away, leave it idle, or destroy it’. This common- sense idea of property as thing- ownership identifies property with what the eighteenth- century jurist, William Blackstone, famously referred to as the ‘sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’, and with what Article 544 of the French Civil Code Napoleon of 1804 refers to as ‘the right of enjoying and disposing of things in the most absolute manner’. For some, Blackstone's reference to ‘the external things of the world’ suggests that his conception of property was based on tangible, material things (as we shall shortly see, this is wrong) and his reference to ‘sole and despotic dominion’ by ‘one man’ that his conception of property was based on absolute private property, on what has since been called ‘full liberal’ or ‘red- blooded’ ownership. As Robert Gordon says, by the time he was writing in the 1760s, the idea of property as individual absolute dominion over ‘things’ had emerged as ‘one of the central tropes of … public discourse’. A ‘proprietarian ideology’ in which private property was ‘sacralized’ was taking hold. Indeed, according to Blackstone, ‘so great … [was] the regard of the law for private property’ that it would ‘not authorise the least violation of it; no, not even for the general good of the whole community.’