Monday, February 22, 2010

Property Theory and HBO's Deadwood (part 3)

In previous posts, I discussed some of the Lockean ideas about property reflected in HBO's television series Deadwood.  In this post, I'd like to focus on what the show suggests about the tensions that arise when property rights acquired in a state of nature meet the regulatory force of positive law.

If the first season of Deadwood helps demonstrate, however imperfectly, Lockean ideas about property and the social compact, then the second season suggests what might happen when the social compact actually begins to take shape.  As I mentioned in my second post in this series, uncertainty about the future prompts Deadwood to seek out some type of formal government to better secure its rights.  Although this decision initially has an air of insincerity about it, there seems to be an understanding on the part of both those inside and outside the camp that some type of government must come.  Deadwood’s residents reluctantly acquiesce to this realization as the best hope for securing their property and, with it, their freedom.  Those outside of Deadwood, however – those on whom the promise of stability and government ultimately depend – have different understandings.

The second season of the show revolves in large part around the actions of two newcomers to the camp -- a representative of the Dakota territory and a geologist employed by notorious gold tycoon, George Hearst.  In many ways, these two characters and the actions they take can be viewed as representing a more positivist outlook than is revealed by Deadwood’s leaders.  Where the initial residents look back to days when the first few settlers fashioned the camp out of the surrounding wilderness, these newcomers see the camp’s future as a part of the Dakota Territory and the United States, with all of the social implications that such a relationship entails.  As Season Two unfolds, the viewer learns that both men are corrupt exploiters of the first order, and it is clear that getting the camp’s gold into their hands (or the hands of those whose bidding they do) is of primary importance.  But this shouldn’t completely overshadow the larger reality.  Once legitimated, Deadwood will serve several important social functions, from a strategic military outpost to a burgeoning center of “civilization” in the heart of Indian country.  And the gold, too, will serve important functions, bolstering the financial stability and influence of the territory, serving as a catalyst for investment and economic activity, and providing the means by which the camp might indeed be transformed into a town.  For these outsiders, the gold in Deadwood ultimately means progress.  Thus, with the prospect of law still in nascent form, the gold to which the camp owes its existence is evolving from a thing acquired by the hard work of autonomous individuals to a complex engine of social change and transformation.  In short, property becomes less about the relationship of a person to a thing than about social relationships between a person and other people.

For this transformation to take place, however, the property rights in the gold must be susceptible to redefinition so as to accommodate the new order.  In this regard, the territorial representative posts a public notice in the camp containing classic doublespeak:  in one sentence, it indicates that the preexisting gold claims will be presumed valid, while in the next sentence, it says that presumption is subject to qualification by the territorial officials.  Although it seems to acknowledge Deadwood’s preexisting property regime, the notice really suggests that any rights acquired under that regime are subject to alteration by the territorial government.  Property, in this view, is not some indissoluble right of the natural order.  Rather, echoing a positivist viewpoint, the notice implies that property is a construction of the law that is designed to meet specific societal contexts.  As those contexts change, so too does property.  Property is, in other words, a bundle of legal rights, the existence and definition of which depend on how the law is structured and restructured over time.  In this view, as the unruly mining camp of Deadwood transforms into a civilized member of the Dakota Territory, it is only to be expected that the rights and relationships that make up the bundle will undergo some transformation as well.

To some degree, this seems to be a natural outworking of Locke’s social compact.  Once individuals consent to unite in political society, they necessarily must be viewed as surrendering some of the privileges and freedoms they enjoyed apart from that society.  Locke himself noted that once an individual consents to government, he also submits his person and possessions to the positive legislation adopted by that government.  “[I]t would be a direct contradiction,” Locke wrote, “for anyone to enter into society with others for the securing and regulating of property; and yet to suppose his land, whose property is to be regulated by the laws of the society, should be exempt from the jurisdiction of that government, to which he himself, the proprietor of the land, is subject.”   To escape the evils presented by the state of nature, one must give up some of the freedoms of the state of nature; to do otherwise would be a denial of the social compact itself.  Applied to our story, if Deadwood wants the benefits of territorial membership, then it must live by the rules the territory promulgates, including those regulating property.

The independent residents of Deadwood naturally chafe at this idea, and their discomfort is only made worse by the machinations of the two newcomers, who use the law not only to regulate the prior relationships but to turn them completely on their heads.  The threat posed by the notice creates panic and further instability in the camp, facts that the geologist exploits to work a redistribution of the gold claims for his employer, Hearst, at a fraction of what they would be worth in a more settled market.  And as the gold steadily changes hands, the balance of power in Deadwood starts shifting.  More on that, and what the show suggests about the relationship between property and power, in the next post.

Mike Kent

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Thanks for getting me to watch "Deadwood." Are you going to address the decision to publish Bullock's letter in "Unauthorized Cinnamon?" I'm referring to the conversation after that decision to publish is made in which Swearengen muses to Langrishe, "I sit mystified I was moved to endorse it," and Langrishe replies "Mystified, Al, at proclaiming a law beyond law to a man who's beyond law himself? Its publication invoking a decency whose scrutiny applies to him as to all his fellows? I call that strategy cunningly sophisticated, befitting and becoming the man who sits before me!" I found that episode truly thought provoking.

Posted by: David Larsson | Feb 22, 2010 8:17:32 AM

Thanks for the interesting and helpful comment, David. The publication of the letter certainly is a defining moment in Season Three, and my co-author and I have included it in our working draft of the larger paper (of which these posts are something of a precursor). I'm not sure we've yet worked through all of the implications, but the conversation you mention certainly helps put the decision to publish the letter into perspective. Thanks again.

Posted by: Mike Kent | Feb 22, 2010 11:54:47 AM

That statement floored me. I stopped it, turned on the subtitles, rewound, and played maybe half a dozen times. I am a dirt lawyer with high mileage, and I have, indeed, seen situations through the years(rare though they may be) in which a similar "invocation of decency" has broken an impasse between parties who otherwise seem to have an equal, seemingly irreconcilable "passion for the color." I've most often seen this accomplished through self-deprecating humor: e.g., "I can have a sense of humor about *this* ... if you can have a sense of humor about *that.*" I had never before thought of that as an appeal to "a law beyond law," but I now think that perhaps it is.

Posted by: David Larsson | Feb 22, 2010 4:36:24 PM

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