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Law in Contemporary Society
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Law as a Social Force: Capitalism's Destruction of Lockean Views on Property-- By AndrewHerink - 10 Feb 2008 Cohen argues that law is a social force. Indeed, I posit, legal arguments are social forces. Below, I trace the development of labor justifications of property rights and show that the growth of capitalism changed the language judges use.The Early Era (pre-1850)Early Anglo-American CasesIn pre-industrial Anglo-American law, judges employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant had fired a gun, scattering birds that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds for he had caught the birds “in the use of that employment of his freehold, his art, and skill.” Plaintiff’s individual labor created the property right. In Pierson v. Post (1805), the court used a similar argument to determine hunters’ rights of original acquisition. Title to wild animals was given to those who, “by their industry and labour, have used such means of apprehending them.”Persistence through early capitalism, and the rise of the competing viewsSubsub 1Subsub 2Section II: A Change in Property ViewsSubsection A: Turn of the century cases (INS v. AP, Presto Lite Co v. Davis, Cablevision)Subsection B: A total phasing out of the labor --> property argument (Midler case, p 231)You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line: # * Set ALLOWTOPICVIEW = TWikiAdminGroup, AndrewHerink Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
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