Land We Share: Private Property and the Common Good, The

Environmental History, Jul 2004 by Brooks, Karl

The Land We Share: Private Property and the Common Good. By Eric T. Freyfogle. Washington, D.C.: Island Press, 2003. 336 pp. Notes, bibliography, index. $25.00.

Lawyers, like historians, use the past to account for how things got the way they are. Yet while both disciplines marshal evidence to support arguments, lawyers begin at the end of their story, by making a point and then arranging facts to press their case. Keep this disciplinary distinction in mind when reading Eric T. Freyfogle's The Land We Share: Private Property and the Common Good, which uses well-chosen illustrations from the American past to argue the proposition that "private property rights are justified and limited by their ability to promote the common good" (p. 229). He denounces as ahistoric the popular political claim that owners have enjoyed, since time immemorial, the unencumbered right to do as they wish, public regulation be damned. Property instead is "a flexible institution," its American (and English) history reflecting "significant changes in what land-owners have been allowed to do" by the community (pp. 99, 7).

This legal history explores perhaps the single strongest idea driving human intervention into natural processes: property ownership, with its attendant rights to accumulate, exclude, and transfer even unto death. Wisely, Freyfogle avoids re-telling American environmental history, though he makes generously plain his debt to its leading practitioners, Donald Worster, Samuel Hays, and William Cronon foremost. His book tackles core problems beloved by law teachers: Where did private property come from? How has society used the concept over time? By what means have the American people expressed and altered ideas of ownership? All the usual critical thinkers appear-Rousseau, Locke, Marx, Thoreau, even Henry George-but Freyfogle's favorite historical sources-Wendell Berry and Aldo Leopold-reveal his conviction that "the community, or ecological, vision of private property ... protects lands and communities while encouraging lasting ties between people and places" (pp. 37-38).

The Land We Share uses well-known (at least to lawyers and legal historians) judicial decisions to trace property law's decline. During the nineteenth century, especially after the Civil War, the republican emphasis on regulating land-use to serve the public good (salus populi suprema est lex) fragmented under capitalist pressure. Judges reinterpreted the unwritten common law of property to encourage industry, calculated community good in strict dollar terms, and finally entitled owners to compensation when public-safety regulations diminished their market values. Of this judicial consecration of property "rights" Freyfogle is scornful, but he notes the paradoxical emergence, just as private power reached flood tide, of community zoning and its prompt vindication by the U.S. Supreme Court in 1926. This new form of public restraint would inspire far-reaching curbs on individual exploitation of nature, especially after scientific knowledge and shifting public values began tying environmental objectives to zoning tools after the 1960s.

Fine-grained and cleanly written, The Land We Share displays the law-teacher's tendency to use courts too much to explain legal history. Despite his plea that "the public" take more seriously its civic obligation to put property in its rightful place-as the community's servant-Freyfogle stints in his discussions of those federal and state statutes, and local ordinances, that best express public preferences.

Karl Brooks, assistant professor of history and environmental studies at the University of Kansas, practiced law for a dozen years in Idaho after receiving his J.D. from Harvard Law School His first book, (University of Washington, in press) explores the postwar controversy between power dams and migratory fish in the American Northwest and his second will be a study of the emergence of American environmental law after World War II.