Alfred L. Brophy
This chapter discusses the role of historical analysis in property law. The history of property has been used to offer support for property rights. Their long history makes the distribution of property look normal, indeed natural and something that cannot or should not be challenged. However, historically in the U.S there have been competing visions of property. From the Progressive era onward especially, the history of property has been used to show the unequal distribution of property and to offer an alternative vision that expands the rights of non-owners of property. In the late twentieth and early twenty-first century, the history of opposition to feudalism and protection of the rights of non-owners was used to protect the rights of non-owners. Thus, the history of property has been a tool of judges and legislators to support property rights and it has also been, less frequently, a tool of critique.
This chapter gives an overview of the state of the art in legal historical scholarship on the neoscholastic analysis of property, torts, and contracts in the sixteenth and seventeenth centuries. Neoscholastics, especially followers of the so-called ‘School of Salamanca’, have been credited with laying the foundations of a principled, systematic approach to the law of property and obligations. Concrete examples illustrating the wealth of the primary source material on these topics will be drawn mainly from Leonardus Lessius’s tractate De iustitia et iure, first published in Louvain in 1605. He is generally recognized to be one of the most important representatives of neoscholastic legal thought. Standing between the medieval ius commune and the Protestant natural law tradition, neoscholastics such as Lessius played a major role in shaping modern private law doctrines.