David Sugarman 230 there were no more than six persons who understood the laws of real propertyd^ Notwithstanding such evidence, the Commissioners declared what was an article of faith among lawyers and their landed clients: that England’s land laws except in comparatively unimportant particulars, appears to come almost as near to perfection as can be expected in any human institutions.”'*^ It has become a cliché of almost all the work on lawand modernitv that capitalismrequired more clearly defined rights of property, notably, absolute private property; and that from a relatively early period, the common law was transformed to meet this need. Elsewhere I have argued that the notion of absolute private property was more limited and uncertain in law and practice in the seventeenth, eighteenth and nineteenth centuries than is usually recognised.5° In fact, the historical and anthropological record illuminates the incredible variety of property regimes. Both at its core, and in its technical detail and practice, private property was not one notion but many different notions masked by the concept of absolute domination. In part, this is to recognise the indeterminacy of concepts such as “absolute private property” and “freedom of contract”.These notions were not as stable and as constant as many economic and social historians have assumed. In truth, they were open to a welter of different meanings - all of which accentuated the irrational (in the Weberian sense) character of English law. Areas of law important to business and industry (at least in theory), such as that governing partnerships and companies, were notoriously complex and ambiguous throughout the eighteenth and most of the nineteenth century, that is, throughout most of Britain’s Industrial Revolution.-'’- “As late as 1919 Marshall - with an unrivalled knowledge of institutional arrangements - could write that until not very long ago the representative firmin most industries and trades was a private partnership ... Indeed, throughout most of the nineteenth century, the fundamental business unit was the individual proprietorship or partnership”.53 Yet on many central issues the law of partnership was pro- ■*** See, B. English and J. Saville, Strict Settlement: A Guide for Historians (Hull: University of Hull Press, 1983), p. 10. Ibid., p. 105. See D. Sugarman, “Law, Economy and the State in England, 1750-1914”, op. cit., pp. 223-30; D. Sugarman and G. Rubin, op cit, pp 23—12. 31 R. W. Gordon, “Critical Legal Histories”, Stanford LawReview, 36, 1984, pp. 57-125, especiallv at pp. 75-87. See, also, much of the historical work emerging out of the American Critical Legal Studies Movement. For example, R. Vandevelde, “The New Property of the l9th Century”, Buffalo Law Review, 29, 1980, pp. 325-67; J. Nockleby, “Tortious Interference with Contractual Relations in the !9th Century”, Harvard law Review, 93, 1980, pp. 510-50; and F. Olsen, “The Family and the Market”, Harvard Law Review, 96, 1983, pp. 1497-1578. This paragraph and the following paragraph first appeared in D. Sugarman and G. Rubin, op cit., pp. 5-6. -‘’5 p. L. Payne, British Entrepreneurship in the 19th Century (London: Macmillan, 1974), p. 17. The reference to Marshall is, A. Marshall, Industry and Trade, (London: Macmillan, 1923), p. 314.
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