The Evolution of Property Rights: A Synthetic Overview

Abstract

Treatises of Government (1690) (Cambridge University Press, rev. ed 1963, Mentor Paperback); William Blackstone, 2 Commentaries on the Law of England (1765-1769). All of these appear in any number of editions produced by various publishers over the years, and so far as I know there is no standard edition to be cited. This presents no problem in the case of Blackstone, because virtually every edition has star pages, and I cite to these. As to Hobbes and Locke, I cite by page to the editions I used but add, for the sake of those without access to the particular volumes, parenthetical citations to chapters in the case of Hobbes, and to sections in the case of Locke. This is convenient enough because the chapters in Hobbes and the sections in Locke are usually short. I take the same approach in the case of Hume, who figures later. Hobbes, supra note 2, at 81-84 (ch. 13). 3 Locke, supra note 2, at 328-29 (§ 27). See also id. at 330 (§ 28) ("it is the taking of any 4 part of what is common, and removing it out of the state nature leaves it in, which begins the property. .. ."). Locke's view is reflected in the rule of capture familiar to modern property law, according to which wild animals in their natural condition belong to the first person to kill them, capture them in hand, trap them, or mortally wound them. See, e.g., Pierson v. Post, 3 Cai. R. 175,-2-I. COOP A. The Argument The roots of COOP can be traced back several hundred years, to Thomas Hobbes, John Locke, and William Blackstone. For our purposes, a very 2 condensed distillate of their views will suffice. Each of them imagined an original situation of open access to a common stock of resources, no ownership, and no civil government (the state of nature). Hobbes figured that any commoner taking a thing out of the common stock would thereafter treat it as has own, but would have to stand ready to defend his possessions against grabbing by intruders. Commoners might try to enhance the security of their holdings by making contracts among themselves, promising not to interfere with the possessions of others so long as others promised the same in return, but self-help was the only means of restraining promisors from reneging. Hence, Hobbes concluded, life would be marked by ongoing battles. Locke agreed. His labor theory dictated 3 that anything taken from the commons rightly belonged to the taker, provided there was enough and as good for everyone else, but conceded that commoners 4 4

Collective action in China’s recent collective forestry property rights reform

“…Our research question concerned the extent to which the 'Hongtian model' represents a new approach to the distribution of common property rights that facilitates what Krier (2008) has described as the convergence of new conventions of behaviour towards that property. As the case study illustrates, there is evidence that this has indeed happened.…”

“…This was particularly apparent in Hongtian Village, where the villagers were willing to meet regularly to discuss and agree changes. As Krier (2008) has suggested, this process of gradual change allows even fundamental transformations -such as the overlay of individual rights on common pool resources -to happen in a performative way in which practice and experience underpins people's expectations about the potential benefits of change. There are limits to this, of course, related to the extent to which the process leads to improvements; Krier (2008) does observe that convergence of pro-community behaviours of the type seen in Hongtian Village generally only occur in the transformation of simple systems in cases of abundance.…”

“…(Ostrom et al, 1999: p.281) While being specific to forest policy in China, this research question has a wider application in considering how new forms of community-based collective action may be able to offer a bridge between state control and market innovation. Of particular significance here is the challenge that this case offers for conventional approaches to co-operative collective action, which are based on an assumption that, over time, the commons will be replaced by private property rights (Thompson, 1991;Ostrom et al, 1999;Krier, 2008). While this may have been the dominant outcome in many previous attempts to improve the efficiency of property rights, both Krier (2008) and Ostrom et al (1999) have argued that it is equally possible for new legal conventions to emerge from individual and community actions -that rights in property can take multiple forms that may combine the commonality of the old system with new individualized conventions that facilitate more efficient resource use.…”

“…Of particular significance here is the challenge that this case offers for conventional approaches to co-operative collective action, which are based on an assumption that, over time, the commons will be replaced by private property rights (Thompson, 1991;Ostrom et al, 1999;Krier, 2008). While this may have been the dominant outcome in many previous attempts to improve the efficiency of property rights, both Krier (2008) and Ostrom et al (1999) have argued that it is equally possible for new legal conventions to emerge from individual and community actions -that rights in property can take multiple forms that may combine the commonality of the old system with new individualized conventions that facilitate more efficient resource use. For Krier (2008), such approaches are based on an expectation that these legal conventions will be recognized, such that the expectation gives rise to particular forms of (social and management) practice, which further underpin the expectations.…”

“…While this may have been the dominant outcome in many previous attempts to improve the efficiency of property rights, both Krier (2008) and Ostrom et al (1999) have argued that it is equally possible for new legal conventions to emerge from individual and community actions -that rights in property can take multiple forms that may combine the commonality of the old system with new individualized conventions that facilitate more efficient resource use. For Krier (2008), such approaches are based on an expectation that these legal conventions will be recognized, such that the expectation gives rise to particular forms of (social and management) practice, which further underpin the expectations. This implies a level of stability and gradual change that avoids the denial of common claims but allows individual initiative to be insinuated into new forms of social practice and governance.…”