These lectures are about private property and the Rule of Law. But, instead of starting with abstract definitions of these terms, I want to begin with a case.

It’s a 1992 decision of the Supreme Court of the United States, Lucas v. South Carolina Coastal Council. Like many American property cases, it concerns the application of what we call the “Takings Clause” of the Fifth Amendment. These lectures are not about American constitutional law and I won’t ask you to venture very far into the morass that constitutes American Takings Clause jurisprudence. It is a mess and, if only you knew how much of a mess, you would thank me for steering us away from this aspect of litigation. But the facts in Lucas v. South Carolina Coastal Council are going to be very helpful for our discussion of ownership and its relation to the Rule of Law.

The Hamlyn Trust owes its existence today to the will of the late Miss EmmaWarburton Hamlyn of Torquay, who died in 1941 at the age of eighty. She camefrom an old and well-known Devon family. Her father, William Bussell Hamlyn,practiced in Torquay as a solicitor and Justice of the Peace for many years, andit seems likely that Miss Hamlyn founded the trust in his memory. Emma Hamlynwas a woman of strong character, intelligent, and cultured, well-versed inliterature, music, and art, and a lover of her country. She traveled extensivelyin Europe and Egypt, and apparently took considerable interest in the law andethnology of the countries and cultures that she visited. An account of MissHamlyn by Professor Chantal Stebbings of the University of Exeter may be found,under the title “The Hamlyn Legacy”, in volume 42 of the publishedlectures.

Miss Hamlyn bequeathed the residue of her estate on trust in terms which it seemswere her own. The wording was thought to be vague, and the will was taken to theChancery Division of the High Court, which in November 1948 approved a Schemefor the administration of the trust. Paragraph 3 of the Scheme, which followsMiss Hamlyn’s own wording, is as follows:

Some people think that the Rule of Law is a purely formal/procedural ideal, neutral as between different kinds of law, provided that the law to whatever ends it is directed satisfies formal constraints of generality, prospectivity, clarity, etc., and is applied in a procedurally fair and respectable manner.

Others, however, believe in a substantive dimension for the Rule of Law and, of these, there are some who believe that there is a special affinity between the Rule of Law and the vindication and support of private property rights. Those who take this view believe that the Rule of Law looks with a jaundiced eye, rather than a neutral eye, on legislation of the kind we are considering – the conservation statute, for example, that was at stake in Lucas v. South Carolina Coastal Council in 1992. It is part of the mission of the Rule of Law, on this account, to support private property; so, to that extent, the Rule of Law provides a basis for criticizing legislative intervention. In Chapter 1, I associated something approaching this position with theorists like Richard Epstein, F. A. Hayek, and John Locke.

Preface

I incurred many debts in the writing and delivery of the 2011 Hamlyn Lectures and in preparing them for publication. My greatest debts are to my audiences in Oxford, Coventry, and London, who listened patiently and responded with helpful and insightful questions. I am particularly grateful to Kim Economides for the initial invitation, Avrom Sherr for making many of the arrangements, and Finola O’Sullivan for being a patient editor at Cambridge University Press for such a dilatory author.

Timothy Endicott organized and chaired the first lecture at Oxford; Julio Faundez did the same at the University of Warwick for the second lecture, and Sir Stephen Sedley chaired the third lecture in London. New York University’s D’Agostino Fund for Faculty Research helped support the rewriting of the lectures in Summer 2011. Carol Sanger helped me inestimably throughout the process, as always, with her support, insight, and love.

The first lecture in this series used the facts of an American case, Lucas v. South Carolina Coastal Council, to pose a question about the possibility of a special relation between private property and the ideal we call the Rule of Law. The case concerned a property developer, who bought ocean-front real estate intending to develop it as residential property for resale. Unfortunately (or fortunately, depending on your point of view), his plans were thwarted by new environmental regulations intended to protect the coastline from erosion. The developer sued under the Takings Clause of the US Constitution, on the ground that the regulations deprived his property of all or almost all of its value, and his argument was accepted by a majority in the Supreme Court of the United States.

I said that I was not interested in arguing about American constitutional law, but that I wanted to use the facts of Lucas v. South Carolina Coastal Council to raise a question about the relation between private property and the Rule of Law. Is the property developer’s complaint one that can be made in the name of the Rule of Law? Can he proceed with it on the assumption that the Rule of Law should protect his property against this sort of regulation? Or is the ideal of the Rule of Law neutral in this matter, given that there is law on both sides of the equation – law inasmuch as Mr. Lucas’s property rights are legal rights but law also inasmuch as the restriction on development that he faces represents the application of a properly enacted statute?