In a world in which land is frequently taken for the building of railways, roads, and airfields, the principle of its compulsory purchase for the public need (“eminent domain” in North American parlance) commands general social and political acceptance. In this little gem of a book, Susan Reynolds argues that such expropriation has been a feature of European law and custom for as far back as one can see. It has no obvious origins and was more or less taken for granted. Why people should accept it was rarely discussed before the seventeenth century.

Legal historians, says Reynolds, have been wrong to imagine that expropriation is essentially a modern phenomenon. It was clearly there as a principle in Roman Law (though curiously absent from the Theodosian Code). It was, according to the conventional view, in effect suppressed for much of the medieval period when seigneurs had property rights in all land and could take it at will. Only when towns began to acquire freedom, “government” replaced the caprice of the seigneur, and Roman Law was revived did the principle of compulsory purchase, as opposed to simple expropriation, come back. Thereafter it was given intellectual articulation and became an essential part of property law mediated through the modern state. Reynolds counters this view by showing that it is based upon some very old and wrong assumptions about the nature of property rights in the middle ages. The seigneur with property rights in all land is a myth. If historians have not seen that compensation was paid across the whole medieval period, this is because they have not looked for it. Reynolds looks, and finds traces in England, France, Germany, Italy, and Spain. She then brings individual rights into the picture and discusses the work of Hugo Grotius (De Iure Belli et Pacis, 1625). Grotius (from whom the term “eminent domain” derived) is a watershed figure for Reynolds in that he put expropriation into a chain of reasoning in which individual property rights were subject to the community, which had itself been formed to protect property. What interests Reynolds now, post-Grotius, is that the practice of expropriation continued without reference to this emergent frame of political thought. Nor was much attention given to the growing stress on individual rights in North America, where, despite the enshrining of the individual's rights, no one seriously questioned the state's right to expropriate (with compensation) for the common good. The apparent contradiction is, according to Reynolds, ultimately baffling. She cannot actually mean this, however, because the whole argument of the book is that Europeans had always accepted that land had to be given up for the common good when needed, just as communities had always expected that justice should be done by giving the expropriated a fair price for their land.

Those familiar with Susan Reynolds's work will recognize the basis of her arguments, namely, that medieval society was not organized around the personal bonds between lords and vassals; that property is never “absolute” but consists of bundles of rights and arrangements; that rulers always had an obligation to protect their subjects and their rights (“doing justice”); that invocation of community was not an early modern development; that community or solidarity was normally hierarchical and that the development of rights by and within a community should not be seen as a driving towards democracy or equality; that one should not confuse the reasoning of academic law with how people generally thought about law and custom; and finally, that before one shares an assumption it is incumbent upon one to look at the evidence for it. Given the existence (at all times) of solidarities/communities that could judge and control individuals' choices, it is not surprising that people yielded to the idea that they should sell to the community when necessary. And given that conceptions of justice involved upholding (some, but by no means all) individuals' rights through the custom of the community, it is equally clear why it was thought that such people should be compensated with a “just” price determined by community worthies. The weakest part of this argument is the evidence. It is actually rather hard to find any for the period before 1100 CE, and this compensation consisted mainly of remunerating people when their land was taken for the building of churches or fortifications. Reynolds argues from the silence: expropriation was so common, and so much accepted, that it went without record. This is a short book. A few more pages addressing the medieval lacunae would have been welcome. Why, for example, were people apparently less concerned with expropriation than they were about the possible injustices of distraint, about which they were highly nervous? But to ask for more is to signal just how stimulating and thought provoking this extended essay is.