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Samizdata quote of the day

When you look at 19th century America or 18th and 16th century Europe, all of a sudden it’ll become clearer that the thing that broke the back of poverty and privilege in developed countries in the past was when property rights came around and destroyed feudal title.

Hernando de Soto

15 comments to Samizdata quote of the day

  • Nick (Self-Sovereignty) Gray

    I wonder where these property rights had been hiding? He makes it sound like they were, maybe, up in the clouds, and fell to Earth one day. No thought required by humans!
    I would have thought that people developed these concepts, and expanded on them, and that is how they developed. Silly me!
    I certainly agree that property rights are important, as is intellectual property, but they did not appear out of nowhere!

  • Laird

    That’s a silly comment, Nick. Of course de Soto knows that; it’s what his books are all about. (His “The Mystery of Capital” is well worth reading.) This is just a tiny quote; you can’t expect it to include all the details and nuances of an entire philosophy of capital.

  • Nick (Self-Sovereignty) Gray

    Good, I’m glad the books go into more detail. I will look for them on the shelves. Since I have never read his work before, that could have been a typical example of his books, and thinking, for all that I knew.

  • john malpas

    war did it.

  • Paul Marks

    Actually the quote is wrong – as “feudal title” remained (basically – in large part) the basis of property rights (especially in land) in both Britain and the United States.

    For example the “feudal” principles of land holding were only even partly replaced in England and Wales in the 1920s.

    There is a tendency (especially among people from the Roman Law tradition – as de Soto is) to think “feudalism – boo hiss”, possibly because they associate it with serfdom.

    Actually one can have “feudal” law without serfdom – the law of England and Wales was “feudal” – but there were no serfs for centuries. Even in the 15th century you have had to look hard to find any serfs in England and Wales (indeed, contrary to Hollywood, there were very rare even in “Feudal” France).

    And one can have serfdom without “feudal” law – for example the Emperor Diocletian bound peasants to the soil (perfectly in line with Roman Law – the basic principle of which was, and is, that the ruler or rulers can do anything they like).

    De Soto is a great man – but I doubt that works such as that of John Dundas (on the differences between pure “feudal” law and “modern” Scots law, with the Roman law influences creeping in, 1710) are sitting on his bookshelves.

    He is using the words “feudal title” in terms of “boo-hiss” – not in terms of an actual legal system.

    For example was Scots land law really inferior before 1845 (when some of the of the “feudal” elements were swept away) than it was afterwards?

    Before 1845 even written documents were not needed in Scotland – just a ceremony before the local witnesses (with a handful of earth being transferred to indicate the transfer of land, a fish to indicate fishing rights, and so on). A Roman lawyer would have been horrified by some of the “Feudal” aspect of land law in Scotland and in England and Wales (right to the 1920s) – but the Roman view is not the only view.

    Indeed one could argue that the decline of “Feudal” elements in Scots law, noted by John Dundas even as far back as 1710, was actually a bad thing – after all the “Highland Clearances” would have been impossible under “feudal” law, the Highlanders held their lands by military service (one form of “feudal” land title – NOT the only form, there are many) and to gain those lands (unless the Highlanders had broken faith in war) they would have had to be voluntarily bought out. Not “hopelessly outdated” at the time – after all many Canadians held their lands by military service and rose to defend the Crown during the American invasion of the war of 1812 (and many of the Canadians who took up arms were actually born and raised in the United States – they had taken up lands in Canada in return for a oath of loyalty and proved loyal to their oath – and the oath is two way, if the Crown breaks its obligations the oath is void and those arms may be turned against it in a “Feudal revolt”).

    But let us bring this into the 19th century.

    Which area in the “New World” followed “Feudal” law (“Feudal” “land title”) and what area followed Roman Law on these matters.

    Canada (even more than the Common Law United States) was basically “feudal” in its “land title”.

    Latin America was, overwhelmingly, Roman Law (in various forms).

    Errrr – which area did better?

    But that is partly the wrong question.

    After all the test of a legal system is not “does it reduce poverty” – that is NOT the test of a legal system.

    The test of a legal system is “does it tend to do JUSTICE in most individual cases that come before the courts?”

    The whole idea that law has some “higher” purpose than doing justice in individual cases, is wrong.

    Indeed, with the greatest respect to de Soto (who, I repeat, is a great man) it is where Latin America (and the whole modern world) go wrong.

    Law has no “higher purpose” – it is NOT about “reducing poverty” or whatever.

    Law should be about doing justice in individual cases – no more and no less.

    And if everyone is used to “Feudal title” if they voluntarily made contracts and so on the basis of it, then the courts should uphold it (not replace it with something else – plucked from the air).

    That is what courts in Britain (especially England and Wales) and in Canada and (in the old States) the United States, tended to do.

    The government is not God – it has no business imposing a new system of land law (or anything else), when people are VOLUNTARILY used to the old system and have made their contracts (and other dealings) on the basis of it.

    Yes nothing existed at the start of the universe – but the principles of “Feudal” “land title” that had emerged by the 9th century (see the Edict of Q – 877AD) should not be lightly dismissed.

    Why should the ruler (or rulers) be able to take land from one family and give it to another family?

    Charles the Bald was forced to accept that he could NOT do this – that he was a “Feudal” lord, not a Classical Roman Emperor.

    Why should we assume that doing away with this limitation on state power is good?

    Where is the evidence that it “reduces poverty” or whatever?

    And what has that got to do with JUSTICE (justice in individual cases – which is what a legal system should be about).

    If one comes upon a burned house, with tattered banners, and the people of the house lying dead with their broken weapons still in their hands – it is one’s duty to seek JUSTICE against whoever did this.

    Even if the person who ordered it was the King (or Prime Minister) themselves.

    And even if they say (in defence of their robbery and murder) “I did it to reduce poverty”.

    This is not true – as such actions will not reduce poverty (not in the long term), and it would not matter if such robbery and murder would reduce poverty.

    As such a general objective is not what a legal system is about.

    A legal system should be about JUSTICE in individual cases.

    The burnt bodies of the murdered (laying in their destroyed house) cry out for justice – even if they were strangers, and the land must be restored to their relatives – again even if one does not know these strangers.

    And if Roman Law says otherwise (with its unlimted rulers) then to Hell with Roman Law.

    After all what is the difference between “government agents” doing the above and Viking raiders doing it? Some formal documents?

    And what is the difference between late Roman Law (with its idea that the rulers or rulers can do anything they like) and the law of the Muslims or other “Oriental Despotism”.

    “Reduce poverty” – simply not true.

    How often has their been “land reform” in most Latin American countries?

    Too often to count – again and again new regimes come into power and “redistribute” land (and other things) in the name of “reducing poverty”.

    This does not happen in evil “feudal” England and Wales, or most of the States of America, or Canada or…….

    Even if “less poverty” is the test of a legal system (which it is NOT) which has done better at keeping poverty down?

    The evil Common Law “feudal” world – or the noble Roman Law world?

    And has the idea that statutes trump Common Law (which has slipped into English legal thinking – and, later, American legal thinking) really been a good idea?

    Or were evil “feudal” Chief Justice Sir Edward Coke (Doctor Bonham’s case) and Chief Justice Sir John Holt (of that “feudal revolt” that 1688 really was) not correct after all.

  • GlenDorran

    Every Paul Marks quote reminds me how little I know of history and how much I want to learn.

    Unfortunately I have limited time, and just as I get to the stage of ordering some books on a subject, Mr Marks writes a new post which opens up a whole host of new subjects to learn about.

    Thank you Paul for your comments, but curse you – my Amazon wish list is now beyond management (and my resources)!

  • Mr Ed

    Following on from Paul, the main legislation for England and Wales was the Law of Property Act 1925, the main ‘codifying’ statute of English and Welsh land law. Scots law is quite distinct.

    I recall one of my lecturers reminiscing about his law degree. He spent the first year at University grappling with English land law from the start of time memorial, and had managed to grasp all the complexities and thought that he had it cracked by the end of his first year. His second year started to his horror with his being told ‘All that you learned last year was swept away in 1925′.

  • Mr Ed


    The young Paul is actually on Youtube. 🙂

  • I suspect he is using ‘feudal’ to mean that you really cannot ‘own’ land other than in the sense of occupying it in fief from a state (your own feudal lord in turn holding it in fief from the crown: the state), rather than freehold. i.e. the state to which the LVT people wish us to return, which is why I refer to them as being where fascism and feudalism intersect.

  • Laird

    I think Perry is correct. In any event, de Soto’s central thesis is that countries without legally defensible property rights tend to be very poor. He isn’t talking about “justice” per se; his concern is purely economic.

  • Veryretired

    Well, I was going to write some kind of comment, but, geez Paul, it will take me a few days just to digest what you already posted. The depth and complexity of your understanding of these issues is a marvel to behold. My sincere respects.

  • See the Wikipedia article on the statute Quia Emptores: http://en.wikipedia.org/wiki/Quia_Emptores. Lots of useful stuff there on the transition from feudalism to (slightly) more modern land ownership.

  • Paul Marks

    Paul’s head is swelling with conceit.

    But there is a serious problem with Latin America (many of them – but let us stick with land), but it is the opposite of the one commonly presented – even by de Soto.

    It is not that poor people “can not get title to their land”.

    It is that poor people keep getting title (over and over again) to the land of OTHER PEOPLE. The “rich” or (boo-hiss) “big business”.

    Every Tinpot Revolutionary tries to win popularity by either “distributing land to the peasants” or to peasant “communities” (which is even worse).

    What is the point in engaging long term investment in a large scale estate – when you are going to lose the land (to “the poor”) anyway.

    Even in the days of the ancient Kings of Castile (the big bit of what is now Spain) there was a problem.

    The Kings declared that landowners could not remove tenants from their estates – as long as they paid the customary rent and farmed in the customary manner.

    In short – landowners could not improve their estates, could not introduce new methods of farming.

    And without the profits from new methods of farming, no real industrial growth was possible.

    It is often forgotten that the real source of capital for the British industrial revolution was NOT the Empire – it was domestic farming profits.

    “Spanish practices” (government backed guild restrictions in the towns and the castrating of the major land holders) strangled Spain.

    One can not build anything worth a damn if one does not really control it.

    Even “Teddy” Roosevelt (of all people) understood that “Spanish law” held back Latin America.

    And it is not because it gives too few rights to the poor.

    It gives the poor “rights” that the Common Law would be baffled by.

    The Common Law has no “just price” or “fair wage” (or “fair rent”) other than what the parties have voluntarily agreed.

    And as for an estate owner not being allowed to change his estate (even though their is covenant upon it – just forbidden by arbitrary government regulations), the Common Law does not understand such things either.

  • Emily

    You must be kidding Paul. How any libertarian can look at Brazil in particular & not think the problem has long been insecure title with large landowners helping themselves to small holders land is just not reading the right sources. De Soto is very right about this. Do you have any idea how corrupt things usually are in South America? The leftie shits have a way to catch up, although Venezuela is making great strides unfortunately.

  • Nick (Self-Sovereignty) Gray

    Emily, does Latin America still expropriate land? Brazil might be different, but Cuba practiced ‘social’ justice, and got no-where. Peronism practiced popularism, and Argentina went backwards. Perhaps Brazil’s government is too weak to uphold property rights, but other governments are too strong.