The structure of rights in the context of private property (original) (raw)
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The notion of property rights has undergone fundamental change recently as a result of the commodification of natural resources such as water and biota. All property rights result in the conferral of three qualities or capacities, namely a management power, and ability to receive income or benefits, and an ability to sell or alienate the interest.
The changing role of property rights: an introduction
Edward Elgar Publishing eBooks, 2023
This book aims to present some fundamental analyses and discussions of significant contemporary developments and trends in property law, including the concept of property rights, the role of property law and property rights in society, and the values they enhance. The aim is not to provide a complete and comprehensive analysis of all issues related to property rights (which would be impossible), but to highlight some significant trends and developments. The main focus will be on the mechanisms that create the influence of property law and property rights on social and economic development and vice versa, and the continuing development and adaptation of property rights to technological development and new social and economic needs. One aspect of this is to reveal the sometimes unexpected or barely visible influence of new property rights on social and economic development. All societies need to have arrangements for dividing or allocating scarce resources between persons, the State or other public bodies. Modern archaeology has uncovered that different property systems have existed far beyond written history and that earlier theories that property rights emerged with agriculture are not correct. The model chosen for the arrangement of ownership and property rights to economic values or resources with an existence independent of human beings is a fundamental constitutive element of society that significantly influences economic, social and ecological development. In principle, there are three basic models for the management of economic resources: solidarity within a tribe; the command structure of a feudal society or a socialist State; or a private property system that leaves to individuals much of the competence to make decisions over economic resources. 1 Throughout history and between different societies, there have been all kinds of variants and hybrids of these systems. As the content of property rights and the way property is distributed in a society profoundly impact people's behaviour 1
Intrinsic limitations of property rights
Journal of Business Ethics, 1995
° Many people take for granted an absolute conception of property rights. According to this conception, if I own a piece of property I have a moral right, to do with it as I please, irrespective of the needs of others. This paper articulates an argument against this conception of propert 5' rights. First, it shows that there are many possible conceptions of property rights, and that there are significant differences among the models of ownership which have prevailed in different societies. Then, it argues that there are decisive grounds to refuse to grant that property owners have a moral right to exercise absolute control over their property, and that ownership implies not only rights but also duties and limits.
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This paper discusses the concept of "property" rights in an interdisciplinary perspective (Law and Economics) in order to compose an analytical conceptual framework to issues related to appropriability involved in public goods (PG) and common pool resources (CPR) analysis. Firstly, we discuss the differences between legal and economic concepts of property rights, trying to integrate economic and legal analytical elements: a right is an opportunity for current or future uses of an asset that is guaranteed by legal system (an enforceable power to maintain the control over economic opportunities). Although economists may not be concerned if some opportunity is guaranteed (or not) by law, nor whether its entitlement is made by means of property or by some other kind of right, these differences also matter for economic analysis. To deal with this question, we need to open the "black box" of the so called "property" rights: a) identifying and analyzing the di...
The Origins, Nature, and Content of the Right to Property: Five Economic Solitudes
The thesis of this article is that the now extensive contemporary literature on the economics of property rights has generated more heat than light. Economists have invoked at least five distinct theories of ownership or property rights in their work. Unfortunately, authors frequently fail to acknowledge the existence of competing theories of property rights that stand as conceptual rivals to the theory that they, often implicitly, invoke. Nowhere is this problem more evident than in the literature on regulatory takings, a literature that has a justifiable reputation for its inconsistent conclusions. Other fields in which theories of property rights play an important role include intellectual property, the economics of contracts, competition analysis and policy, externalities, and the economics of information. This article compares and evaluates five competing theories of property rights that have been advanced and used by economists: classical liberalism, utilitarianism, legal positivism, pragmatism, and modern libertarianism. These theories present divergent accounts of the origin and the nature of ownership claims. They also conceptualize the evolution of ownership institutions as well as ownership patterns quite differently. There are also important differences in incentives that exist under institutional regimes based on each theory.
Ownership and Obligations: The Human Flourishing Theory of Property
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The thesis of this brief paper is straightforward, although not uncontroversial: The moral foundation of property, both as a concept and as an institution, is human flourishing. In the remainder of my remarks I will explain what I mean by human flourishing, as I use the term, and I will distinguish human flourishing from welfare as that term is commonly used today by economists and legal analysts. I will then briefly illustrate the approach through an example. Private property ordinarily triggers notions of individual rights, not social obligations. After all, the core function of private property, at least according to conventional lore, is to insulate individuals from the demands of society both in its organised political form and its nonpolitical collective form. Of course, the common law has long recognised limits on the exercise of property rights, limits that grow out of the needs of others in cases of conflicting land uses. The obvious example is the common law of nuisance, which courts developed using the ancient maxim sic utere tuo ut alienum non laedas ("use your land in such a way as not to injure the land of others") as their guiding principle. But such limits on property rights are considered the exception, not the rule, the periphery rather than the core. 2 The core image of property rights, in the minds of many people, is that the owner has a right to exclude others and owes no further obligation to them. 3 On this view trespass is the paradigmatic cause of action in the law of property. Hence if another intentionally commits trespass upon my land after I have refused permission to pass across it, the trespasser is properly liable for punitive damages even though only trivial damage was done to my property. 4 That image is highly misleading. The right to exclude itself, thought by many to be the most important twig in the so-called bundle of rights, 5 is subject to many exceptions, both at common law and by virtue of statutory or constitutional provisions. For example, the common 1 A. Robert Noll Professor of Law, Cornell University. This paper was originally delivered as a lecture at the University of Hong Kong Faculty of Law. I am grateful to the Faculty for the invitation and especially to Professor Guanghua Yu for making the arrangements and for his hospitality. 2 This is essentially the thesis of Henry E. Smith, "Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law" (2009) 94 Cornell Law Review 959. Indeed Smith uses the very imagery of core and periphery.
This paper studies the origins of one of the most basic of property rights, namely, the right of an individual or an organization to the fruits of its labour. My objective is to address the questions of why, when and how this property right can emerge and be made secure. I develop a model of the strategic interaction between two players in the state-of-nature, which is an environment characterized by the absence of any laws and institutions (including property rights and the state). My analysis explores, in particular, the roles of the players' fighting and productive skills on the emergence and security (or otherwise) of this property right. 2004 Elsevier Inc. All rights reserved. JEL classification: C72; C78; D23; D30; D74; O12; P14
Land and Law: Reciprocal Rights and Duties in Private Property
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La an nd d a an nd d L La aw w: : R Re ec ci ip pr ro oc ca al l R Ri ig gh ht ts s a an nd d D Du ut ti ie es s i in n P Pr ri iv va at te e P Pr ro op pe er rt ty y M Ma ar ri ia a d de e F Fá át ti im ma a F Fe er rr re ei ir ro o D De ez ze em mb br ro o d de e 2