Property as a historical category

In his inaugural lecture at Oxford, in a foretaste of what was to become The Concept of Law, H L A Hart argued that one should try to describe the practice of law before attempting to develop definitions and theories. ‘Though theory is to welcomed’, he wrote, ‘the growth of theory on the back of definition is not’. His stance was not anti- theoretical but advocated empirically informed theorisation. It was in this spirit that Craig Muldrew warned against the tendency to derive assumptions about the operation of actual markets from the economic theories developed in the wake of Adam Smith, arguing that these theories, which see markets as operating in fundamentally the same way in all places and at all times, have limited applicability to actual pre-eighteenth- century market practices. The relationship between economic theory and history ‘needs to be reversed’. A ‘thickly researched historiography of the complex motivations and practices of agents acting out relationships of economic exchange – together with an understanding of how they themselves interpreted such actions – [sh]ould inform future theory, rather than the other way round’.

The historian E P Thompson made very similar arguments about the relationship between history and theory. The concepts he used in his historical researches, he said, were ‘historical concepts, arising from the analysis of diachronic process, of repeated regularities of behaviour over time’, concepts that were ‘often resisted, and even wilfully misunderstood by the synchronic disciplines’. Thus, for Thompson class was not a static category, measurable in positivist or quantitative terms, but a historical category describing people in relationship over time. This led him to advocate an ‘interactionist epistemology’ in which knowledge arose from a continual dialogue between ‘conceptualisation and empirical observation, hypothesis and experiment’. Theory arose out of open, empirical enquiry. He agreed with Marx that, like thought in general, it was ‘not self- generating’ but was ‘the product … of the working- up of observation and conception into concepts’.