Property, entailments and how we think of ownership

Chatsworth Estate, Peak District. Image credit: Helen De Cruz

Note: an earlier version of this piece was published on Medium, I think it makes sense to publish it here too as the issues surrounding property underlie a lot of our current problems.

The early medieval conception of property

We commonly think of owning something as owning it outright. You can do with it as you see fit, destroy it if you want (fortunately, there are some limitations, e.g., for pets). But it used to be very different. Prior to the late middle ages in Europe, property had a moral dimension that it has lost today. If we look at medieval England (see also this paper by Bradley Bryan) prior to around 1100 in England, all land was held by the overlord, tenures were granted to tenants, but not as estates. The grant signified the moral obligations the lord had to the tenant and his family, and likewise the tenant’s obligations to the lord. You could not just sell it off as a tenant, it was not yours to do as you saw fit. You were the land’s steward and managed it on behalf of the overlord, future generations, and all who lived on it.

However, there was an evolution of the concept of property to no longer mean something you managed as a life-long tenant, but something you could own “outright” to do with as you see fit in the early modern period. John Locke (through Hobbes) is one of the main founders of the modern concept of property. Locke linked property to the fundamental right to self-preservation. According to Locke, labor power is the means of individuating the common into individual possessions to be used for preservation. So, when you’re controlling your labor as a means of self-preservation, mixing it with your environment, you are then said to own the entire value of the thing. Locke argued that one’s labor increased the value of a thing. It converted unusable wild, untamed nature, into a usable thing. (Locke infamously thought the common land used by Native people in the Americas was useless, and could be taken by settlers as long as enough was left for others to take.)

Entailment in Regency England

Here’s where Jane Austen comes in! If you’ve read Pride and Prejudice (1813) or saw one of its many adaptations you will have noticed that one of the central elements to the story is entailment of the estate of Longbourn away from the daughters Bennet to Mr Collins (a distant relation). Because Mr Bennet failed to have a son, and Longbourn cannot go to the daughters, the wife and children could be destitute if Mr Bennet dies. Hence, the importance for the daughters to find suitable spouses.

Entailment is a fascinating legal structure that underwent a lot of evolution in the Regency era. English society was moving away in that period from the idea of property as stewardship by a life-long tenant to someone who owns the estate outright. As Ellie Dashwood explains in this in-depth video (linked below), entailment is a remnant of the older stewardship conception of property that got corroded in the later middle ages. A property was entailed in part to protect it against the tenant (“owner”) doing with it as he pleased.

So entailment protected–in a sense–the estate from the (life-long) tenant. The tenant could live in it and have the fruits of it (such as the yields of the agricultural lands). But he could not, for instance, sell it off, or realize after a night of gambling and ill judgments that he gambled it away to friends. Although often some of the land was not included in the entail and could be mortgaged or sold, he could not sell off or mortgage the entire estate. The tenant was the caretaker of the estate, which would be inherited by a clear line of inheritance to a future caretaker. I don’t want to romanticize the past–there was a lot of injustice against common people–but one thing the entail also guaranteed was some continuity for the people (farmers, craftspeople) who lived on the estate, against a sudden shift in ownership and different management. You could not kick out the farmers on the estate on a whim.

These protections were better than nothing or what we have now, where users of the estate are essentially unprotected in certain respects. However, in the Regency area, the concept of property was shifting (due to capitalism and colonialism) into a concept of owning something outright. One consequence of this, or rather, how this new idea of property was put in law was that entails were curtailed. You could still entail, but no more than living generation + 1, so eventually a generation in the near future would own outright. Entails into perpetuity could no longer be created.

To see how this worked, say the entailment of the estate is created at generation of Mr T. Mr T’s son is a little boy, so he can make an entail that it goes to his son (always in masculine line) + the as yet unborn grandson. But then, the entail would end and the grandson of Mr. T would hold the estate outright. So eventually you get outright ownership unless the entail is renewed (note, for nuance, it’s possible to sell off parts of the estate not contained in the entail, but the core of the property would be protected).

We can see thus that in Pride and Prejudice there’s a big change of how to think of entailment and property, and how (arguably) some people (maybe Austen herself, certainly Mrs Bennet) found the older idea of entailment as stewardship of the property unjust. And certainly, entailments were sexist and could create difficulties. But they did protect the property and the people who lived on it.

Collapsing the distinction between property and wealth

Nowadays, as Hannah Arendt notes, we experience a collapse of the Roman distinction between property and wealth. During the 19th-20th century, the conception of property shifted to one where the value of a property lies in its exchange value. This shift is so deep it has not only altered our conception of property, but also of owners. Owners no longer have the rich set of moral obligations but are atomistic transaction makers. They are rational agents who manipulate the world and buy and sell objects, which are alienable (removable from the previous owner and entirely transferrable to the new owner). As Annette B Weiner (1992) explains in her classic and famous ethnography Inalienable possessions, this notion is not cross-culturally universal. It is a recent innovation in the west, and plenty of cultures have different ownership ideas including the one where possessions are inalienable.

Is the modern thin, atomistic, conception of property an intuitive and straightforward way to think of ownership? This does not seem to be the case. Even now, the current users of Twitter/X feel like the owner has some moral obligations to them qua users. But, the modern concept of property as outright does not have this. It’s just not part of this concept. An owner can do as he sees fit. Or does he?

Our modern conception of property as this thin transactional thing is in tension with a richer, more morally-laden understanding of property that we commonly employ in some other contexts. We get the sense that with the amount of power our current billionaires wield comes certain moral obligations. However, although we seem to be reverting to an ancien régime level of wealth inequality, we do not have anything like noblesse oblige.