Where do property rights come from, anyway?

Author: R. S. Radford

Property rights have become so weighted down with political baggage these days, the term often serves as little more than an ideological buzzword. If you’re a fan of conservative talk radio shows, you’re for ’em. If you think manipulative propaganda films about global warming should win Oscars and Peace Prizes, you’re agin ’em. If you’re the Supreme Court, you grudgingly recognize their existence, but limit them to about the same level of constitutional protection as, say, swamp gas.

But what accounts for the existence of property rights in the first place? This is more than an idle query. If, as the Left would have it, property rights are created by the State, then all claims to property ultimately devolve to grants of governmental privilege, arguably revocable at will. In contrast, if property rights originated prior to government, which was created in large part to guarantee and protect those rights, then it is reasonable to view private property as a bulwark against overweening State power.

Michigan Professor James Krier has been doing some interesting theoretical work on this question, which is worth at least a quick read. His paper, "Evolutionary Theory and the Origin of Property Rights," published a few months ago in the Cornell Law Review, can be read here.

Krier outlines the two leading "evolutionary" theories of property rights, and argues for a hybrid institution, which traces back in its essential form to Neolithic times. When modern States emerged, more sophisticated types of property came into being, but the earliest origins of property are still felt in the weight the law gives to the rights of possession and exclusion.