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The current approach to the study of property cannot distinguish the causes of human action from the consequences of human action. It also cordons off morality thereby opening a hole in how property rights work. The scientific difficulty is that our analysis must constantly shift between the individual, their local community, and the larger polity in which both are embedded, in order to explain simultaneously different levels of consequences with different kinds of causes. The difficulty is made worse when we construct mental models without the human mind. My framework leaves the human mind in. Since Armen Alchian and Harold Demsetz, the study of property rights has had a decidedly external stance: the institution imposes itself on the individual from the outside. The problem of property rights, however, also calls for inquiry from the inside out of human agency, because in the study of property, ideas are primary.
To counter the dominant anthropocentric and synergistic framing of the relationship between environmental protection and human rights, this chapter focuses on the conflicting dimension of this relation. It maps the main types of conflicts induced from a case-law analysis of regional human rights courts. Conflicts between nature conservation policies (through the creation of protected areas) and the rights of indigenous peoples or cultural minorities living on such lands have been deplored for long, as also instantiated through the numerous cases decided by the Inter-American and African human rights Courts and Commissions. Less has been said, however, about conflicts between animal welfare concerns and cultural or religious freedoms of certain communities; conflicts between landscape preservation policies and land ownership, including by vulnerable groups such as Roma people; and conflicts between energy policies and the rights to adequate living conditions and to property. Strasbourg and Luxembourg judges are increasingly occupied with such issues. This innovative typology of normative conflicts between environmental protection laws and human rights offers new empirical, theoretical and doctrinal insights to understand the nature and the extent of the conflicting dimension of the relationship between environmental protection and human rights.
Protecting individual rights is a core feature of democratic constitutionalism. The centralization of the means of coercion gave rise to the Hobbesian dilemma, the fear that this enormous power might be abused unless it be effectively controlled. In addition to dividing power among different branches of government or sharing it between the federation and its units, constitutions have fortified individual rights with judicial review and enforcement mechanisms against the executive branch to rein in state power.
Proposing a collective right to effective self-government sits oddly with a vision that pitches free individuals against an all-powerful state. Such a right can, however, be justified on two interrelated grounds. First, in the absence of effective protection by a state, individual civil and political rights remain empty declarations. Stateless people, Hannah Arendt has taught us, are the most vulnerable; they have no legal rights and no way of seeking protection as a matter of right.
Bart Wilson argues that property is based on custom, not rights. Wilson (2022) further argues for the primacy of property over property rights. Wilson's research, including the recent book, The Property Species: Mine, Yours, and the Human Mind (2020), is a significant and arguably pathbreaking contribution to the vast literature on property and property rights. It also falls into the trap of economic arguments that unnecessarily devalue legal rights. I ague that we can all agree that ideas about property are always important to understanding property rights but that property rights still rule. This is in part because those who have property typically care most about property rights. I also argue that Wilson's concept of property is too focused on private ownership, rather than shared ownership or even government ownership of property. I suggest that considering the idea of sharing and other legitimate forms of property ownership alongside private ownership would generalize Wilson's constructivist theory of property and improve our ability to explain the diversity of property rights.
Forty years ago, the Supreme Court created a new doctrine to protect property rights, called regulatory takings. That doctrine is an answer in search of a problem. The well-established law of eminent domain had developed over a century ago relatively clear guidance on how to distinguish between government actions that took someone’s property, thus requiring compensation, and government actions that merely regulated property and did not require compensation. Ignoring the long tradition in eminent domain, the Court has created an entirely new, completely incoherent, and fundamentally flawed constitutional jurisprudence that hampers the ability of governments to address the critical threats of climate change. But even within the Court’s incoherent regulatory takings doctrine, there are lessons for state and local governments on how to better prepare for disaster resilience and address the inequitable effects of climate change. This chapter explores the constitutional limitations on governments in their efforts to regulate to protect against climate disasters and identifies possible strategies for responding to climate events within the parameters of the Court’s incomprehensible property jurisprudence.
The first chapter of the book introduces readers to the salience of land as a window into how political authority is constructed and negotiated in modern states. It previews the book’s central argument and situates it within scholarship on historical institutions, state building, and state–society relations. In addition, Chapter 1 presents the central cases and mixed methods empirical approach.
Chapter 2 provides an overview of the contemporary context of customary authority and control over land rights in Africa, while situating Zambia and Senegal within broader regional trends. It shows that institutional pluralism in land rights at the local level is widespread and provides necessary background on a key mechanism driving incremental shifts in the control over land: piecemeal land titling. The chapter traces the titling process in Zambia and Senegal, including how customary authorities use unofficial and official channels to exert agency. In addition, Chapter 2 introduces two alternative explanations for the uneven expansion of state control over land. It explains why we need new frameworks that examine the agency of citizens and customary authorities, and the ways in which institutions shape their responses to titling.
This book explores how customary institutions, citizens, and chiefs impact the expansion of state control over land, determining how state capacity grows and why it is spatially uneven. It shows that, by influencing how chiefs and citizens weigh competing incentives in their decisions, customary institutions can divert the outcomes intended by state policy or predicted by market forces. Local power dynamics and the agency of members of customary institutions are thus critical to understanding both the resilience of customary land tenure regimes and the continuing influence of customary institutions in citizens’ lives. Chapter 8 concludes the book by examining the broader implications of these findings for the contemporary role of customary institutions as intermediaries between citizen and state; the political determinants of property rights; and land titling policies.
A property right, the standard view maintains, is a proper subset of the most complete and comprehensive set of incidents for full ownership of a thing. The subsidiary assumption is that the pieces that are property rights compose the whole that is ownership or property, i.e., that property rights explain property. In reversing the standard view I argue that (1) a custom of intelligent and meaningful human action explains property and that (2) as a custom, property is a historical process of selecting actions conditional on the context. My task is to explain how a physical world of human bodies with minds that feel, think, know, and want gives rise to a custom of property with meaning and purpose. Property is primary because ideas are primary.
The chapter surveys the major institutions and values of English law in the era of the first British settlement in New South Wales. The legal order of 18th-century England displayed great complexity and technicality, the result of an extended process of historical growth and adaptation by which new institutions and doctrines were grafted on to existing structures and procedures. Two important points of unity and direction existed. The common law, a system of legal custom developed over centuries by the practices of the royal courts and associated with the historic customs and liberties of the community. And parliamentary statute, which became in the century a frequent and reliable instrument of legal change and governance, shaping matters of criminal justice, commerce and domestic economy, local government and global empire. A major theme of recent scholarship is the myriad and often incremental ways in which statute altered, influenced and weakened England’s complex legal inheritance, as Parliament determined which of English liberties and legal practices would survive or flourish in the localities and in the empire.
Land Politics examines the struggle to control land in Africa through the lens of land titling in Zambia and Senegal. Contrary to standard wisdom portraying titling as an inevitable product of economic development, Lauren Honig traces its distinctly political logic and shows how informality is maintained by local actors. The book's analysis focuses on chiefs, customary institutions, and citizens, revealing that the strength of these institutions and an individual's position within them impact the expansion of state authority over land rights. Honig explores common subnational patterns within the two very different countries to highlight the important effects of local institutions, not the state's capacity or priorities alone, on state building outcomes. Drawing on evidence from national land titling records, qualitative case studies, interviews, and surveys, this book contributes new insights into the persistence of institutional legacies and the political determinants of property rights.
It is generally agreed in social scientific scholarship that federal institutions promote efficiency and economic growth in the modern world. This chapter asks whether the same case can be made for antiquity. Political scientists and economists recognize three major mechanisms by which federal institutions promote economic growth: decentralized fiscal decision-making that incentivizes the adoption of policies enhancing local economies; high redistributive capacity that can direct resources where they are most needed; and reliance on local revenues that encourages local governments to invest in public goods that enhance market activity. Although there is some evidence to suggest that these each of these institutional arrangements existed in antiquity, it is argued that there is simply not enough evidence to demonstrate that they did, in fact, lead to economic growth in the ways that the modern theory of fiscal federalism predicts. The chapter then explores several different ways in which federal institutions may have led to economic growth in the case of Greek antiquity – regional property rights and the pooling of complementary resources, shared currency, and enhanced diplomatic power – while cautioning that there is no evidence to prove that there was a causal link between any of these practices and actual economic growth.
Over the last twenty years, New Institutional Economics (NIE) has been a highly influential model in the study of the Greek and Roman economy. Although both its assumptions and methods are controversial, NIE approaches have changed the agenda of ancient economic history. The overall goal of neo-institutional economic history is to explain economic development, and notably growth, in line with a much-quoted phrase by the Nobel-prize winning economist Douglass North, that it is the task of economic history to explain the structure and performance of economies through time. NIE approaches and methods have therefore stimulated quite specific research directions in ancient economic history. This chapter suggests that NIE offers a fruitful conceptual matrix for asking new questions – with or without the answers necessarily staying within the NIE model. By contrast, the aim of the NIE method to predict and quantify outcomes, and the broader implications of the approach, are far more difficult to accept and defend. Particularly problematic is its commitment to certain kinds of growth as the desirable outcome of economic development, together with the assumption of the universal benefits of that growth, with its end point and golden standard explicitly or implicitly based on successful economies of the modern West.
The market in ancient Greece should be understood as a specific institutional construct, that of the city-state, which allowed its citizens to exercise private property rights guaranteed by law. By extension, free foreigners were also acknowledged these rights, which however extended to the private ownership of human beings (slavery). The city-state also created the conditions for an unusually high division of labour. Each city was a market space of its own, with its own rules and logic, which could include the control over sales margins and even sometimes the establishment of maximum prices for some perishable fresh goods. The network of hundreds of Greek city-states also created the conditions for the development of an original form of international market.
Since the late nineteenth century, some scholars have emphasized the free character of the traditional Chinese economy, while others have regarded it as a feudal or Asiatic one that prevented the development of a market economy. The question of property rights and factor markets, which are the themes of this chapter, is closely related to this subject. The first section of this chapter will give a brief survey of the institutions governing the markets for land, labor, and capital from the perspective of law and policy. In the second section, several concrete illustrations will be presented to describe the functioning of factor markets in the Song–Qing economy. In the last section, an outline of the short-, middle-, and long-term changes that occurred in factor markets will be described.
China's rise as the world's second-largest economy surely is the most dramatic development in the global economy since the year 2000. But China's prominence in the global economy is hardly new. Since 500 BCE, a dynamic market economy and the establishment of an enduring imperial state fostered precocious economic growth. Yet Chinese society and government featured distinctive institutions that generated unique patterns of economic development. The six chapters of Part I of this volume trace the forms of livelihood, organization of production and exchange, the role of the state in economic development, the evolution of market institutions, and the emergence of trans-Eurasian trade from antiquity to 1000 CE. Part II, in twelve thematic chapters, spans the late imperial period from 1000 to 1800 and surveys diverse fields of economic history, including environment, demography, rural and urban development, factor markets, law, money, finance, philosophy, political economy, foreign trade, human capital, and living standards.
Determination and redetermination are critical components of a unitization agreement. The negotiation and renegotiation of the share allocation system enable parties to update the agreement as new information or technology appears. Several accepted methods of redetermination have developed in the oil and gas context, but none currently exist for aquifers. Some examples do appear to approach direct and indirect methods of aquifer redetermination. Examples of direct methods would involve the proven availability of groundwater or available rights to storage within the aquifer. Examples of indirect methods include allocations determined by modeling of geologic conditions, pooled reductions in groundwater extraction, or refinements in a management plan that allocates extraction rates.
An important field of the political economy literature examines the mechanism of property rights commitments in authoritarian regimes where formal political constraints are absent. While many of the existing studies focus on how domestic autocratic institutions shape the formation of property rights regimes, this paper takes an open-economy approach and examines the compound effect of global economic integration and intergovernmental organizations (IGOs) on property rights protection in authoritarian regimes. We propose that the domestic presence of foreign factors of production is positively associated with more credible property rights commitments in authoritarian economies. Moreover, this association is moderated by authoritarian regimes' participation in institutionalized IGOs, which enhance the organizational capacity of these foreign owners of production factors. Through the transnational networks of production integration, international institutions indirectly alter the domestic distribution of bargaining power between the authoritarian government and private economic actors, rendering the commitment to property rights protection more credible. An analysis of a panel dataset consisting of 105 authoritarian regimes yields preliminary evidence supporting our proposition.
Elinor Ostrom pointed out significance of rule structures, and the need for institutional diversity in addressing commons problems. This is particularly true in relation to the governance of large-scale commons resources and one global commons that requires attention is the economic system. We share the institutional arrangements that generate economic benefits but neither the wealth generated by the system, nor the negative impacts, are shared equally. The result is an economic system focused on the privatisation of shared resources that generates inequalities around the globe. This paper explores the economic system as a ‘co-created’ commons. The paper brings together two broad strands of literature on commons: one arising from the public trust doctrine, and the other based on the economic characteristics of a good or service in terms of its access (‘excludability’) and consumption (‘subtractability’). The paper links these concepts with more recent work on ‘productive commons’, where shared resources are generated through collaborative activity, and ideas from evolutionary economics, which explore the economic system as a process and structure of rules, rather than as a series of transactions based on the allocation of property rights. Evidence is provided to support the argument that commons are an integral element of the economic system, and as a result account for some of its efficiencies and, where rule structures fail, for negative impacts on socio-economic and ecological systems.
The equity issue economists spend most of their time on is the current distribution of income and whether that distribution is becoming more unequal through time. Mainstream economists strongly disagree about these matters. Some want substantial increases in income tax for the highest earners; others think substantial increases would hurt economic growth in the medium to long term as lower after-tax income makes potential innovators more risk-averse while other high-paid workers decide to retire earlier. It is striking that almost no economists bring up a right to the fruits of one’s labor and fair compensation for one’s innovative ideas. Jefferson, on the left, Hamilton, on the right, and all the principal founders in between were strong believers in property rights. All the arguments about fairness, economic growth, and deserts are considered at length.
Economists agree about some equity matters. For example, they think the general public does not understand the actual incidence of taxes. Taxing unemployment insurance sounds regressive, but with our progressive income tax it actually hurts most those with above-average income. Raising business taxes sounds progressive, but labor and consumers pay a substantial part of this tax.