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Property Law in Jane Austen's Pride and Prejudice:

I recently based part of my Property final exam on Jane Austen's Pride and Prejudice. Generations of English lit professors have spilled barrels of ink over this book; but, as far as I know, most of them haven't placed much emphasis on the fact that the plot hinges on a point of property law.

The reason why it is so important for Mr. and Mrs. Bennet's five daughters to find wealthy husbands is that they cannot inherit their father's estate, since it is subject to the fee tail - a now archaic form of property estate that was required to pass through the male line. As a result, upon Mr. Bennet's death, his land (which forms the overwhelming majority of his wealth) will go to his nearest male relation, the despicable Mr. Collins. In the early nineteenth century, few women could acquire significant wealth other than by inheriting it or marrying into it; thus the Bennets' predicament. As Austen explains in Chapter 7:

Mr. Bennet's property consisted almost entirely in an estate of two thousand a year, which, unfortunately for his daughters, was entailed, in default of heirs male, on a distant relation; and their mother's fortune, though ample for her situation in life, could but ill supply the deficiency of his.

This plot device is far from the only property-related issue in Pride and Prejudice. It is striking that nearly all the villains in the story (Lady Catherine de Bourgh, Mrs. Bennet, Mr. Collins, and others), are motivated in large part by a desire to acquire valuable landholdings for themselves or their children. In another part of the story, Austen censures big landowners for looking down on merchants who make their living through trade rather than from income derived from their landholdings. Similar negative views of big landowners appear in several of Austen's other novels, especially Mansfield Park and Persuasion. On the other hand, Austen wasn't completely negative in her attitude towards the landed gentry. The good qualities of one of the key positive characters in Pride and Prejudice are first revealed through the care he bestows on his estate and its tenants.

I'm not going to argue that an understanding of property law is essential to your appreciation of Jane Austen and her work. But it can certainly help! Indeed, property law is probably second only to criminal law as a legal influence on great literature. Yet another reason to study Property (not that we need any more:))! You don't see too many great novels that feature legal issues in corporate law or civil procedure.

UPDATE: I should note, for those who have expressed concern about this issue, that the final exam in question is over, and that in any event knowing that the characters are drawn from Pride and Prejudice would not help anyone answer the questions I based on them; the property issues in the question are not the same as those in the actual novel (unfortunately for the students, the ones on the exam are more complicated:)).

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Property Law in Russian Literature:

University of Alberta property professor Russ Brown partly agrees with my post pointing out the prominence of property law in classic literature. He notes that property issues do indeed a play an important role in many classic English novels, but suggests that that is not true of classic Russian literature.

Russ is probably right to suppose that property-related themes are less prominent in Russian than in English-language literature. However, they are far from absent. Nikolai Gogol's classic work Dead Souls hinges on a point of property law to an even greater extent than Jane Austen's Pride and Prejudice.

Chichikov, the main character, is seeking to marry a wealthy heiress (an interesting parallel to Jane Austen's characters, many of whom are women who need to marry wealthy men). In order to achieve his goal, Chichikov has to prove that he himself is wealthy enough to aspire to the lady's hand. Nineteenth century Russian gentry measured their wealth in large part by the number of serfs ("souls") they owned. Lacking the funds to purchase a sufficient number of living serfs, Chichikov hatches a plan to purchase dead ones (the "dead souls" of the title) who, under Russian law, were still carried on their owners' books until the next census after their demise. The owners have an incentive to sell to Chichikov because the dead serfs were actually tax liabilities for as long as they remained on the books! Several parts of the story explore Russian attitudes to property (including of course the ownership of serfs themselves, which Gogol at that time opposed). Dead Souls is usually regarded as the first great Russian novel, and property law (along with tax law) played a key role in it.

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Law in Fantasy Literature:

Lawprof Dave Hoffman has an interesting interview with fantasy writer Patrick Rothfuss on the portrayal of law in the fantasy genre.

Rothfuss makes the interesting point that there is nothing antithetical between having a functioning legal system and a society that believes in and uses magic. After all, ancient and medieval legal systems functioned in a society where most people took the idea of magic seriously and believed in the existence of demons, witches, monsters, and so on. The real reasons why civil law doesn't play a big role in fantasy literature area combination of 1) the relative ignorance of most fantasy writers about law and legal systems, 2) the fact that legal disputes are usually not a good way to advance a fantasy plot (as Rothfuss implicitly points out), and 3) the strong demand of much of the fan base for "action"-oriented plots that feature lots of violence and sorcery. However, as Hoffman and Rothfuss discuss, that may be changing with the rise of more "realistic" fantasy literature in recent years; "realistic" not in the sense that the authors' imaginary worlds conform to the laws of science as we know them, but in the sense that the story is set in a more fully developed and internally consistent society. This has already led to a more realistic and sophisticated treatment of political systems by fantasy writers. The same development might also impact the portrayal of legal systems.

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Calabresi-Melamed and Bernard Malamud:

With the possible exception of attending committee meetings, grading final exams is the most boring part of a professor's job; that - plus recovering from ankle surgery- is what I have been doing the last few days. Tis definitely the season to be jolly.

Every once in a while, however, the monotony is broken by a hilarious exam blooper. In my Property class, I always cover the Calabresi-Melamed framework which distinguishes property rules, liability rules and inalienability rules.

This year, the students seem to have grasped it well. However, I did read one exam that repeatedly referred to "the Bernard Melamud" theory. What (other than my inadequate teaching, of course) could have led the student to make this mistake? I eventually figured out that he or she must have confused Calabresi and Melamed with novelist Bernard Malamud. Malamud did write some books where legal issues feature prominently; his most famous novel, The Fixer, is a fictionalized account of the trial of Mendel Beilis, a famous anti-Semitic "blood libel" case in czarist Russia. Unfortunately, however, Malamud - unlike Jane Austen - didn't focus much on property law and wasn't much of a law and economics scholar.

It's a minor mistake by the student and one that I didn't penalize much; but humorous nonetheless.

UPDATE: As commenter JonathanM points out, Malamud did in fact write a property law-related novel, The Tenants. Perhaps the student had read this book recently, applied a Calabresi-Melamed analysis to to the plot and began to conflate their theory with Malamud!

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