Eric T. Freyfogle. The Land We Share: Private Property and the Common Good. Washington:
Island Press/Shearwater Books, 2003. 304 pp. $25.00 (cloth), ISBN 978-1-55963-890-6.
Reviewed by Robert Rakoff (Hampshire College)
Published on H-Environment (August, 2005)
Private Property and the Environment: Friends or Foes?
recognition can lead to a wider understanding that property owners have an obligation to protect the ecological
health and integrity of their holdings.
With property claims at the center of many recent environmental disputes, we are fortunate to have available
Eric Freyfogle’s latest volume for Island Books. Freyfogle
draws on his background in environmental law and legal
history to construct a smart and accessible analysis of the
changing meaning of private property in American history and to offer a somewhat optimistic vision of a more
ecologically sensitive property regime.
With this background established, Freyfogle takes
on the libertarian arguments of conservative advocates
of property rights. He shows not only that they are
wrong about the historical and philosophical relationship
of property rights and the state, but also that their trust
in the market to resolve environmental disputes is misguided, since the public’s legitimate interest in the uses
of private property is ignored. Building on the notion
that ownership entails responsibility to others, Freyfogle
argues that it is wrong to pay owners to do the environmentally right thing, like preserving habitat for endangered species or conserving soil, since it is already part
of their obligations as owners. In similar fashion, Freyfogle notes that regulation is necessary to overcome the
fragmentation of private ownership, that there is no absolute right to develop one’s property, and that on the
ground there is a continuum, rather than a sharp split,
between private and public ownership rights.
Freyfogle’s argument is three-fold: that private property rights, never static, have undergone dramatic change
over the course of 200-plus years of legislation and litigation; that property owners have never been free to do
whatever they liked with their property, since private
rights co-exist with the rights of other owners and the
public at large; and that private owners’ rights are (and
should be) matched by their responsibility to promote
the public interest, which today includes a responsibility to promote what Aldo Leopold called “land health.”
Freyfogle develops these points by reviewing the Lockean roots of Anglo-American property law and offering a brief history of leading court cases that staked out
new interpretations of property during the expansion
and consolidation of industrial capitalism. His goal is
to demonstrate that just as the legal and cultural understanding of property changed to support and legitimize
economic development, so those meanings can change
now to better encompass the public’s growing interest
in protection of land and water. As evidence, Freyfogle
points to several state court decisions that seem to recognize that property law must apply differently to ecologically different parcels of land. He argues that this legal
This is stirring, hopeful stuff. Perhaps too hopeful. Freyfogle seems to believe that sympathetic judges
and legislators will respond to increasing public interest
in environmental protection by designing and enforcing
new limits on the power of private owners of land, water, subsurface minerals, and other pieces of the natural world. Freyfogle frequently cites Leopold’s insistence
on the importance of “land health,” but he fails to heed
Leopold’s skepticism that such cultural and moral change
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would develop anytime soon. What’s missing in Freyfogle’s account is a more realistic assessment of the need
for more far-reaching political change as a prerequisite
for the development of a more environmentally sensitive property regime. This is something that conservatives understand all too well, as their long-term project
of packing the nation’s courts with property rights advocates demonstrates. If Freyfogle’s book can serve as a
guide for environmental activists and concerned citizens,
perhaps we will see legislation and judicial decisions begin to swing toward greater protection of a wider public
interest. But we also will need a clearer acceptance of the
necessity for a more robust state role (as in most Euro-
pean nations, in which limits on owners’ rights are much
more legitimate) before we are likely to see a more effective political movement supporting the public’s interest
in private property.
This book deserves an extensive audience. As in his
previous books for Island Press (The New Agrarianism,
2001; Bounded People, Boundless Lands, 1998), Freyfogle
combines thorough scholarship with lively writing and
a clear, forceful argument. It should find wide use in
classes on the history and politics of property and land
use, and it should be read by all citizens who struggle for
sustainable land and water policies.
If there is additional discussion of this review, you may access it through the network, at:
https://networks.h-net.org/h-environment
Citation: Robert Rakoff. Review of Freyfogle, Eric T., The Land We Share: Private Property and the Common Good.
H-Environment, H-Net Reviews. August, 2005.
URL: http://www.h-net.org/reviews/showrev.php?id=10844
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