Tuesday, February 9, 2010
One of my current projects (on which I am collaborating with Lance McMillian, my colleague at John Marshall) concerns how the television series Deadwood portrays ideas about property through a popular culture medium. For readers who may not know, Deadwood ran on HBO for three seasons during 2004-2006. In a nutshell, the series follows the fictional saga of what is now Deadwood, South Dakota from its inception as a lawless mining camp to its evolution as a bona fide town complete with budding government and social institutions. As series creator David Milch has explained, the show is about "the development of law and order, or, specifically, how does order develop without law." Because the community of Deadwood is founded on the gold that rests in the nearby hills, the assignment and protection of gold claims serves as a central focus in this evolution from anarchy to established legal order. Thus, the show has a lot to say about property and its relationship to human society.
In this post, I'd like to concentrate on what Deadwood suggests about the age-old debate concerning the origins of property -- i.e., is property a natural right that pre-exists civil government, or is it a creature of positive law made necessary to regulate social relationships? The series seems to come down on the side of the naturalists and represents, albeit imperfectly, a sort of Lockean viewpoint. Although civil government exists all around it, the camp of Deadwood is in something of a state of nature. Bare wilderness only a short time before the viewer joins the series, the camp remains outside the jurisdiction of any recognized U.S. government. It has arisen from the mud, as a result of the nearby gold, on land that legally belongs to the Sioux. It has no mayor, no council, no sheriff, or any other trappings of an organized state.
Nonetheless, there is property in Deadwood. Despite the absence of law, there is an organic recognition of claims to the gold and the surrounding land on which the camp sits. The de facto leader of the camp is a saloon and brothel keeper whose "ownership" of a significant portion of the camp seems to be acknowledged by everyone else, implicitly because he was among the first settlers to forge the camp out of the "nothing" that was there before. In one episode, he actually makes this labor-based view of property more explicit, complaining about the undeserving newcomers and comparing them to the deserving elders that fashioned the camp with their sweat and blood. Newcomers approach him to lease and buy lots in the camp, and their negotiations reflect a fairly sophisticated view of property rights (touching upon such things as servitudes and rights of first refusal), all without deeds, recording statutes, or formal enforcement mechanisms.
In Deadwood, we see a fictional representation of how Lockean labor theory might work. There is no law and there is no government, but there is property, created by the labor of those who got their "first." As the series progresses, however, we begin to see another Lockean concept at work. Although there is property in Deadwood, the lack of formal protections makes rights in that property somewhat unstable, leading the residents of the camp to focus on how their property and way of life might be better secured. Their search for security will be addressed in another post.
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