The origins of private property rights: states or customary organizations?

Abstract

Abstract. Political theories of property rights are less optimistic than self-governance perspectives regarding the ability of non-state organizations to supply private property institutions. Despite offering different answers to the question of where property rights come from, these diverse perspectives share a concern with organizational capacity, constraints, and legitimacy as explanations why organizations are able to supply private property rights. We use these shared concerns as a point of departure to investigate formal and informal private property rights in rural Afghanistan. We find that informal private property rights are more effective than formal private property rights because customary organizations fare better than the state on the dimensions of capacity, constraints, and legitimacy. More generally, these 'political' features of formal and informal organizations explain why self-governance works, as well as provide insight into the challenges confronting efforts in fragile states to establish formal private property institutions. IntroductionOne of the fundamental questions of institutional economics is where private property rights come from. A long tradition of the literature in both the 'old' and 'new' institutional economics views the state as the main source of private property rights. Commons (1924), in one of the early works that came to define the old institutional economics, located the origins of private property rights in legal decisions of judges. Along similar lines, Bromley (2006) suggests that the concept of a private property 'right' only makes sense when individuals can call on a state to enforce it. There is also a sizable new institutional economics literature that conceptualizes of the state as the fundamental source of private property rights (North and Weingast, 1989;Olson, 1993;Riker and Sened, 1991;Riker and Weimer, 1993). These political theories of property rights expect that informal private property rights will be inferior to state-backed private property rights (Hodgson, 2009). 1 *

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“…They may be classified according to the degree of exclusivity and excludability, differentiating open-access, common, public, communal and private rights (Ostrom, 2015). They may be classified according to their social basis, distinguishing traditional or customary from modern legal rights (Murtazashvili & Murtazashvili, 2016). Or, they may be classified according to the bundle of specific rights included within a particular concept of property, such as rights of access, use, destruction, transfer, trade, lease or sale.…”

“…Of particular relevance to this study are the ways in which rights may be defined or reallocated through political interactions between governments, private citizens or corporations, and individuals with customary rights, including those held in common. The degree to which such changes have occurred through political contests, and the consequences for the various stakeholders concerned, have been examined over an extended period, for many different industry sectors and geographical regions (Ahn, Balafoutas, Batsaikhan, Campos-Ortiz, Putterman, & Sutter, 2016;Buckley, 1994;Grainger & Costello, 2016;Murtazashvili & Murtazashvili, 2016;Ostrom, 2015;Sikor et al, 2017;Slaev, 2016;Webster, Wu, Zhang, & Sarkar, 2016). These analyses note, for example, that there are many instances where locally-recognised historical rights may be changed or coopted as they are incorporated into national-recognised systems, often with deliberate or unintentional economic redistribution effects.…”

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“…Além de dar cumprimento às resoluções de modo ágil e transparente. Essas instituições podem ser estatais (regras legais e cortes oficiais) ou não (regras costumeiras e mecanismos sociais de enforcement) (MURTAZASHVILI, I;MURTAZASHVILI, J., 2015, p. 105-109).…”

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