Property Rights and Property Wrongs

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Property Rights and Property Wrongs Author(s): Anthony Scott Source: The Canadian Journal of Economics / Revue canadienne d'Economique, Vol. 16, No. 4 (Nov., 1983), pp. 555-573 Published by: Blackwell Publishing on behalf of the Canadian Economics Association Stable URL: Accessed: 04/09/2009 09:55
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Propertyrights and propertywrongs

of Abstract.This paper is about an economic approachto the modificationof characteristics bundles of real propeity rights. Some writershave claimed thatthis modification,or standard reform, is a function for governmentpolicy. Governmentshave creatednew tenures,both in waves of land enclosure and in the disposal of public lands. But their innovationshave not always survived. Otherwritersassertthatforms of real propertyrightevolve 'spontaneously,' as do othereconomic institutions. But these writershave proposedno process of selection or model on the actorsin evolution. In this paperI suggest how imposing a supply-and-demand of common-law property-litigation proceduresfacilitates an understanding one evolutionary process. But these proceduresare clearly deficient and have called for help from government in creating, say, new water rights. Propriete:droits et torts. Cet articlepresenteune approacheconomiqueaux problemesposes par la modificationdu caracterede constellations standardsde droits de proprietefonciere. Certainsexperts ont suggere que de telles modificationsou reformes etaient fonction de la politiquegouvernementale.Des gouvernementsont cr66de nouvelles formes de tenureen des temps ouil'on vivait de vastes experiences de cloturage(enclosures)ou d'alienationde terres publiquesau secteurpriv6. Mais ces innovationsn'ont pas necessairementsurv6cu.D'autres experts affirment que les formes du droit de propriete fonciere emergent 'spontanement' comme c'est le cas pour les autresinstitutions6conomiques. Mais ces demiers ne suggerent pas de sp6cificationdu processus de selection et d'6volutionde ces droits. Dans ce memoire, l'auteursuggere un modele d'offre et de demande appliqueaux acteursdans les procedures un de litiges autourde la proprieteen droitcoutumier.Voila qui aider'acomprendre processus d'evolution. Ces proceduress'averent clairementd6ficienteset il faut faire appel 'al'aide des gouvemementspour cr6erpar exemple de nouveaux droits maritimes. May I begin by saying how pleased I was to be asked to speak before the members of our Association in a series designed to commemorate Harold Innis - a man whose
The Innis MemorialLecturedelivered to the CanadianEconomics Association, Vancouver, June 1983. The lecture is a progress reporton an extensive project. At other stages I have worked in collaborationwith Peter H. Pearse, Michael Crommelin,Albert Breton, Vernon Smith, Andrew Thompson, RichardCampbell, and James Johnson. Recently I have benefitedfrom suggestions from MukeshEswaran,Tracy Lewis, Nigel Bankes, BarryBarton,RobertAllen, Kevin Todd, and several referees and graduatestudents. This meagre feast ill displays the generosity of their contributions.
CanadianJournalof Economics / Revue canadienned'Economique, XVI, no. 4 November / novembre 1983. Printedin Canada/ Impriineau Canada

0008-4085 / 83 / 0000-0555 $01.50 ? 1983 CanadianEconomics Association

556 / Anthony Scott work has provided stimulus to my predecessorsas to myself. May I say too how pleased I was to be invited to this platformby our president-elect,AndreRaynauld, with whom I have been working on committees and councils, it appears,for almost thirtyyears;and to have as chairmantonight, Roger Dehem, known almost as long. Let me startwith a few words aboutmy title, which may have seemed to some of you too catchy to be serious. I admit it was offered to Andre Raynauldbefore my theme was fully worked out. On working it out, however, I feel it was quite It appropriate. takes up in public-choicefashion a questionthatI firstaddressedin my 1953 book on Conservation:what happenswhen a naturalresourcedeposit and the unit of ownership do not coincide? Aspects of this question have since then been centralto much of naturalresourceeconomics in the formof the puzzle abouthow to managecommon-property resources, such as fisheriesand the environment.As you may know, several economists have suggested thatthe answerto this puzzle is to be found in inventingnew forms of propertyrights, each conveying an entitlementto a limited catch, or to a quota of pollution. Createdby government,they would be like ordinaryprivaterights to real estate. But what does 'ordinary'mean? for It occurredto me thattonightmight providea good opportunity puttingbefore property you some of what I have recently been learningaboutordinaryor standard rights.I have been studyingthem, becauseI have belatedlyrealizedthatwe oughtnot to repeatthe sins of Britisheconomists of nearlytwo hundred yearsago. In those days political economists freely offered advice on how land should be held and what the relations of landlord to tenant ought to be. They offered this advice not only for colonies, India, and Britain,but also for France, Ireland,Canada,several Australian but China.Most of them offered it with greatauthority with little desireto understand the historicalrelationbetween the developmentof a system of land holding and the unfoldingof the social system. Consequently,they helped to throwclassical political economy into populardisrepute,especially as regardsplaces like Quebec and India, where the British colonial governmenttook too seriously economists' advice about implementing'reformed'land tenure. Insteadof repeatingsuch follies, it behooves economistsinventingsystems of new how ordinaryold standard rightshave evolved. I hope this paper rightsto understand will suggest to othersthe value of rigorousresearchinto the background the present of system of rights in land and resourcesbefore we go much furtherin amendingit. The paper divides broadly into four main parts. In the first part I shall resume rights, brieflywhatwe should agreeaboutproperty,propertyrights, andrealproperty in orderto define what I mean by a system of standardreal propertyrights. In the second I shall bring in government, discussing its variousroles in amendingprivate rights. But then in the third and main part I shall usher government out again, discussing instead ideas about how the common law has spontaneously, and real propertyrights. In this part independentlyof government,creatednew standard and the fourth I then suggest to economists some criteriafor judging whether our of understanding the economics of spontaneouscreationof real propertyrights is in good order,andwhetherwe know enough aboutit to judge whetherwe are 'wrong'or

Property rights and propertywrongs / 557 rightwhen we use public policy to supplantthe common law with new kindsof rights in naturalresources.

Economists interested in the unrolling of the system of propertyrights can have recourse to four literatures.First, the anthropologicalliterature,writtenby people who have already forgotten more than most economists will ever know, not only aboutdiffering ideas of privatepropertybut also aboutthe particular rights in which each society's propertysystem is embodied. But the anthropological approachitself has not made much of a mark on those economists who have borrowedanthropological observations. Second, the contractarianliterature, stemming from John Locke, about the philosophy of the state. Using hypothetical histories of men in a state of nature, without governmentor propertyrights, its authorshave arguedthat economic men would have designed new rules, new rights, andnew political institutions.They even suggest how a particularsystem of rights to land and resources might have been invented. But they have little to offer to those of us who wonderhow such original inventedrights have developed subsequently. Third, the legal literatureon property.We can trace the actuallegal institutions backthroughthe courts. This historyshows thatownershipandleaseholdtenurestem from the time of the Norman conquest or earlier. When William rewarded his lieutenants,he put into place a complex of ways of holding land at all feudal levels. The casebookson propertylaw show how the rightshe distributed have been reshaped throughthe centuriesby parliamentand by the courts. Although these three literatures deal with different questions, they are not necessarily in conflict. In their various ways they have providedraw materialfor a fourthliterature,thatby property-rights economists. I shalldiscuss it later;hereI need only mention those whose writings about land and resource rights shows a close familiaritywith the otherthreekinds of writing. The classical economists, Smith and Ricardo,obviously were much at home with legal concepts. Theirmodem followers reveal similar influences. Rawls and Buchananare mostly steeped in contractarian literature.Coase, Hayek, Posner, Alchian, Demsetz, McManus, North, Libecap, Umbeck, and Borcherding have in various ways based themselves on all three chronicles: anthropological, contractarian,and legal. Another group of modern economists has thoughtmuch aboutpropertyrights, as the work of Scott Gordonon the contractarians may suggest. I refer to writerslike Gordonon fisheries and John Dales on waterpollution. Understanding these otherliteratures,they have advocated a new inventionof privatepropertyrights, to take the place of bureaucratic resource managers. I turnnow from literatures definitions.A property to rightis one unitin a systemof property.For brevity, I will say nothing aboutthe system of rights in ideas, such as copyright law. Neither will I touch on the system of personal property rights

558 / Anthony Scott governing the ownership of movable goods such as automobiles. Instead I will on concentrate whatthe commonlaw calls realproperty rights, a holder'srelationship to a parcel of land. So far as land and natural resources are concerned, the holder's rights are has fragmented into a series of characteristics.One characteristic to do with time:the holder'srightstateswhen he may use the parcel. Forexample, a leaseholdertypically has rights to full use of a parcel for only one period and none thereafter.Thus the lawyersays the tenanthas today anentitlementto the landthis year;while the landlord has today an entitlementto the same land a year hence. In this way the characteristics of these two kindsof tenurefragmentrightsover a parcel. Othercharacteristics real of propertyrightsspecify what use a tenantmay make of a parcel. Forexample, he may have one of various rights to remove trees, to consume runningwater or to erect a building. One result is that a modem real propertyright has characteristicsthat fragmententitlementto one parcelin at least threedimensions:over time, over space, and over multiple uses. Lawyers, recognizing this fragmentationamong tenure characteristics,say that each person owns a 'bundleof rights' that sets out where, when and how he can use his parcel. This is a useful terminology.Eachbundleto some degreegovernswhether the right is recognized by others and so entitles him to some exclusivity in his use of the parcel. Of course, there is an almost infinite number of mathematical combinationsof termsor characteristics can be bundledup into one person'sright that to a particular resource. But ourcourtsdo notrecognize all of these as exclusive rights automaticallyenforceable against third parties. Instead, the courts have tended to shake down the possible combinations into standard bundles of rights: freehold bundles tenure;leaseholdtenure;profittenureandeasements.These ancientstandard have been added to in one way or anotherby recognizing ratherspecial standard rights:riparian rightsto waters;the publicrightto fishing;licences; andcondominium and stratatitles to buildings. Some of these bundles of rights seem just to have evolved as our monetaryor language systems have evolved. Others seem to have been created by act of parliament.Thereare similarbundlesof rightsin otherlegal systems, particularly the continentalsystem, which has reached North America throughFrance, Spain, and Scotland. All standardbundles are, in varying degrees, exclusive, enforceable, divisible, andtransferable; in aggregatethey makeup our system of rights. Some and economists say thatthe system should be completelyexclusive, divisible, and so on, and also that it should cover every parcel of land thatcould even entera market.But such 'unattenuated'perfection has not been reached. There exists a system of standard bundlesof real propertyinterests,but it exhibits conflict aboutthe questions as to when, where, how, and for whom a parcel may be used, and who may use it.

In this part I begin a discussion about how the system of standardtenures has emerged.I begin with government'srole. Economistsin the studyof regulation,or in

Property rights and propertywrongs / 559 public finance, seem to assume that real propertyholding is just one of the items on any government'spolicy agenda.While governmentpolicy is not my subjecttonight, I pause here to remind you which land tenure questions the public sector has been concernedwith. on In the firstplace, there is a vast economic literature land reform. Some of this of has an allocationalinterest, and some is concernedmostly with redistribution the is rightsto or the rents from land. The list of participants very long. Ricardo,Henry George, RobertTorrens, Gibbon Wakefield, Stephen Cheung, and GunnarMyrdal are names of economists drawn from the list that may remind you of the many controversiesaboutlandpolicy. Closely allied with them is a more specializedgroup of authors,mostly American, who have studiedthe process by which a government can commandeerland; attainderand excess condemnationand expropriationand compulsoryacquisitionandso on, shadingoff into modernlandbanksandzoning and benefit-cost decisions on permissible land uses. My classificatory remarkon the whole first group of writersdeals only with one assumptionpervadingits literature. These economists as a group do not doubt that government'spolicy making, when permitted, could affect our system of land use and land holding. For various allocational reasons they are divided on what land policy should be, but they implicitly agree that a land-tenure policy is feasible and can be effectively maintained. Of far more importanceto economists than such interventionsinto private land law, however, has been a second form of government action concerning real property:governments' own massive exits from land ownership. The nineteenthcenturydisposal into private hands of the entire Americanpublic domain from the Ohio to the Pacific was surely the most breath-takingof these events. And the alienationof Canadianlands in all the colonies and the North-westTerritorieswas almost as dramatic.Both because raising revenue was not their chief objective and becausethe areasfor disposal were so vast, the governmentsdevised specialdisposal policies. These policies were expected to result in new types of privatetenure. The best-knownexamplewas the pre-emptionsystemfor handingover landto new settlers. By the time it was put in place in western Canada,this system resultedin 1. the separationof surface farm land use from other uses of the same land; 2. the reservationof certainforests, and waterresources;and 3. the adoption of standardizedparcel sizes, rectangulargrids, political district layouts, and road patterns. To judge by the parliamentary with this handingout of the debates, those entrusted public lands felt that their decisions really mattered.Modernscholarshave reflected this early sincerityaboutthe disposal of the westernlands;I have in mind historians like BenjaminH. Hibbardand ChesterMartinand economists like L.C. Gray, W.A. Mackintosh, and of course Harold Innis. These people were for the most part disappointed;for the new disposal arrangementsdid not last. Homesteading, for example, did create a new generation of free and equal land owners in freehold tenure. But not for long. The parcels were sold, divided, combined, mortgaged, leased, and abandoned,with scant concern about the original vision. Eighty years

560 / Anthony Scott laterthe westernladderof land tenureis little differentfromthatin European regions long undertraditionalcommon-law propertysystems. The disillusion in the land-disposalbureaux,and of theirhistorians,illustratesfor me a largertheme having to do with our entireorganizedsocial system. As we found with Newfoundlandin 1949, ourpolitical constitutioncan be formallyamendedmost is easily when a new territory addedto the old. The revisionof the realproperty rights system can be seen as though it, too, were partof our 'constitution'of thatproperty tell settlementthat contractarians us is implicit in the original social compact. As a constitutionit has both an original form or division and a procedurefor amending itself. Like a political constitutionit yields only stubbornlyto attemptsto change it by acts of day-to-day policy. For example, even when the Canadiangovernmentwas providedwith the safety valve of millions of westernacres of newly seized lands, it could not freely change the complex real system by which personsdealt in parcelsof resourcesand held them, in varyingbundles, exclusive of the rest of society. natural For this reason I feel justified in directing your attentionfrom governmentin the searchfor some other agency that has moulded our real propertyrights system.

In this part I follow my denial that governmentpolicy has been an economically important definerof standard real propertyrightsby arguingthatthereis a process at work outside the governmentsector. My argument has been made before, in two quite different forms. The first argument is that government is not needed, because a contractarianprocess is potentiallyat work to createand recreateexclusive, enforceablepropertyrights. The second is that government is not needed, because propertyrights, like all social institutions, simply evolve. I shall describe both argumentsbut will eventually discardthem as explanationsof the emergence of modem propertyrights. The first argumentis extremely interesting, but so unique as to cause it to be regardedas a special case. It is special to the mining industry.It is thatmininglaws that is to say, laws about acquiringaccess to land for discovery and exploitationhave in the past been developed by a contractarian process. People who make this argumentfirst refer in a general way to John Locke's parable about men coming togetherin a state of anarchyto establish their rights to land. They then refer to the extraordinary,documented instances where miners have set up special courts to govern how mineral claims are to be signalled, registered, and enforced. These occasions usually took place at times or in places where the usual civil powers were ineffective or at a loss because of theirlack of familiaritywith the propertyproblems createdby a mineralstrike. How this situationwas handledin medievalEnglandhas been studied by those using old documents concerned with the coal mines in the Forestof Dean in the west Midlands:special courtsandspecialofficerswere set up by the miners, themselves, with the king's consent to supplant the feudal laws.

Property rights and propertywrongs / 561 Somewhatsimilarevents took place 400 yearslaterin the Klondikegold fields andare mentionedby HaroldInnis. events took place in the Californiagold rush The best-documentedcontractarian andwere reported the historianJohnHowardShinnandhave recentlybeen studied by by the economist JohnUmbeck. There, in the absenceof eitherAmericanor Spanish First, law, the '49ers in camp aftercamp agreedon two types of legal arrangements. when gold was plentiful and labourwas scarce, the miners in each camp contracted togetheras a form of sole ownershipco-operativeto sharethe work andthe gold. But later, when the rush was on, 'miners' meetings' would convene, to instructminers how to marktheir individualclaims, restrictthe size of the claims by size and by a work requirement, and agree to help each miner enforce his claim against claim-jumpers.In the absence of a civil authority,it would have been possible for the minersto opt for violence to hold as large a parcel as they liked and to protectit by force. But violence was avoided. John Umbeck (1981b) found that in California, with no system of mining law and with no organizedgovernment,'the emergenceof contractoccurrednot once but500 times. Andthe lengthof an explicit property-rights time in which this took place was not centuries but days.' Nevertheless, this event was not repeatedelsewhere. In the FraserRiver gold rush, as in contractarian Nevada and in Australia, the Californiasystem was influentialin how governments set up new mining laws. But there was never again a series of spontaneoussocial contracts.This is true, too, of the setting up of western water law. The miners and system. ranchersinsisted on a new permitsystem differentfrom the Englishriparian they used established But they did not implementthe new system by a social contract; legislative procedures. Before summarizing the argument based on the possibility of a contractarian amendmentof real propertybundles, let me outline the second argument.It tells us thatgovernmentpolicy is not essential in the reformof real propertyrights, because reformsof their characteristics simply emerge as the economy needs them. This, for example, is the apparent position of the economic historianDouglass North. He, with co-authors,has been engaged in rewritingthe economic historyof westernnationsto of bringout the importanceof the adaptation institutions.For example, technological change in agriculturewas a mere scientific possibility until the land enclosuresmade it feasible. North's position on the process is a complex one. While he believes that new exclusive, transferable, and enforceable rights have been essential for economic progress, he is not very interestedin their invention. Invention of new bundles of rights has simply taken place, because governmentor the private sector thought it useful. He implies that it was intentional, and he approvesof the intent. IInthis respect North differs from his ally in these matters,F.A. Hayek. Hayek makesthe positive claim thatintentionhas nothingto do with evolution. Insteadthere has been a hidden hand at work by which social forces have by trial and error identified and set up new institutions. Thus the system of propertyrights, like the system of language and of money has 'spontaneously'emergedor evolved. Like the orderof society as a whole, institutionswithin society have arisen, not by design 'but

562 / Anthony Scott by the prevailingof the more effective institutionsin a process of competition.Like culture, institutionscan be thought of as a traditionof learnedrules the conduct of which has never been 'invented' and whose functions those persons involved usually have not understood. They do not stem from a social contractor Rawlsian process, for those imply rationalchoice and intent. According to Hayek, new institutions are developed by persons for private reasons, and are adopted generally because of their evident efficacy. Here the refreshment be gained from Hayek's recourseto the idea of spontaneousevolution to comes to a suddenend. His explanatorysuggestionthatthe institutionshave evolved by private experimentation and general acceptance of the best seems to me impossible. If an institutionwere a private good, a suppliercould experimentwith new qualities, anddemanderscould decide whetheror not to buy it. But not when it is a public good, requiringconsent. In the case of property,it dependsas well on thatcharacteristic bundlesof rights of thatwe have referredto as 'enforceability'againstthirdparties, and transferability. The installationof a characteristic enforceabilityrequiressome mechanismlike a like social contract or government imposition. The reason, we know, is that new institutions as introduced by individuals have distributionalconsequences. Their diffusion as proposed may benefit some but will hurtothers. Thus privateviolence, public coercion, or compensation is needed. If there is coercion, government is needed. Thus any extension of Hayek's idea of institutions to the institution of standardenforceable real propertyrights as parts of a spontaneoussocial order is useless, as long as it relies on an analogywith the impersonalmarketto explainhow it comes about. Let me summarizethus far. In the previouspartsI assertedthe fact thatneitherthe legislaturenorthe public dispositionof landhas been the chief sourceof the system of real propertyrights in the common law. Some other explanationis necessary. I am aboutto offer it. But firstI have mentionedtwo kindsof explanationalreadyon offer. The first was that the social contractmechanismis not a parablebut actuallycan be observed.The creationof miningclaims in Californiais cited as evidence. I rejectthis suggestionbecause this mechanismmay indeedhave workedbut is so rarelyobserved as to be worth neglecting. The second was that institutionslike propertydevelop spontaneouslyby individualexperimentation trial and error.I have rejectedthis and idea, too, because a propertysystem cannot emerge by individualinnovation. An evolutionary process must be identified. I feel it is more importantto this understand process thanto follow North, Hayek, andAlchianin sayingthatsome process 'must' exist. My idea about a procedurehas been describedin anotherpaper, so I can be very brief about it here (Scott, 1984). There are four elements in it. These elements apply to the explanation of changes in standardcommon law tenures, not to any or parliamentary authoritarian process. of First, we take from the common law the idea thatjudges workingin a hierarchy courts create a body of precedentthat defines and redefinesthe characteristics a of tenure. The rights of the holder of a minerallease, for example, have been standard

Property rights and propertywrongs / 563 adaptedfrom the earliercommon-law profit-'a-prendre decisions in common-law by courts. Second, we treatthe legal process as a market,in which supplyanddemandforces are at work. Third, we assume that litigantsare on the demandside. They are impelledto seek releasefroma bindingconstraint,becausethey disagreewith anotherpersonaboutits meaning. If the stakes in the dispute are small, the partiesjust settle. But if they are large, the parties go to court. Thus an ancient standardtenuremay, when there are new resource technologies or demands, become the subject of litigation when the stakesrise high enough. The lower the costs of litigationthe more attemptsresource of users will make to escape from old interpretations standardtenures. That is, the of of demandfor new interpretations characteristics tenuresis elastic with respectto litigationcosts, and it shifts in response to an increase in the stakes. Fourth, the supply of new interpretationsis in the hands of the courts. The argumenthere is a little strained,so I will simply summarizeit. The supply depends uponthe rateof decision making. Argumentsby Posner, Rubin, Priest, Libecap, and other writers suggest to me that new characteristicswill be accepted if the rate of litigation seeking them increases. It can be shown that the supply of decisions dependson the labourmarketfrom which judges are drawn. The supply, therefore, will be elastic with respect to litigationcosts and shift in response to political action in setting up new courts. These four elements may suffice to indicatethatwe may use our understanding of the marketplaceto understandhow the courts replace the legislaturein developing new interpretationsof standard property rights. I start with profit-maximizing propertyusers. When technology, final demand, or transportation change, more of those who use naturalresources increase their demand for property. Because of diminishingreturnson old parcelsandsites, andbecauseof exhaustionof old deposits and timber stands, these users move on to new locations and new types of natural resources and into new legal jurisdictions. These events lead to conflicts between individualswho have different understandings about what can be done undergiven local standard resourcerights, and these conflicts lead to attemptsto get aroundthe obstacles by a numberof recourses, one of which is litigation. In a jurisdiction in which natural resources have in this manner come into intensifieduse or demand, the numberof disagreementsreferredto the courts will increase,andthis will appearas a shift in demandfor changes in the characteristics of standard naturalresourcetenures.The supply of re-interpretations the characterisof tics of tenureswill be more passive. It will depend, of course, on who thejudges are and on their neutrality. Apart from these considerations, a shift in demand will eventually increase the amount supplied. That is, the time-rate of change in the characteristics of standard common-law tenures will respond to increases in resource-users'profitopportunities. This 'process,' I suggest, is more attractivethan Hayek's metaphysicalanalogy with the open market's hidden hand. It explains how, even though a real property of institutionis a public good, an interpretation it can be provided by individual

564 / Anthony Scott action. Otherpeople are free riderson the decision. There is a certainspontaneityin the process; for no one need have an intentionto change the definitionof a standard tenure.But the process needs the mechanismof the common-lawprocedure makeit to work.

In this finalsection I enquirewhetherthe supply-and-demand processworks. Whatdo I meanby 'work'? Several answershave been suggested. All of themareindicatedby the word 'reform.' In the history of British agriculture,for example, the gradual alterationof land tenure from feudalism to modem leasehold and freeholdtenureis referredto as land reform. The same word is used in developing countrieswhen land from a few large holdings into many smallerpeasantholdings. is redistributed First, then, the litigation process does provide a non-legislative source of true flexibilityin the definitionof real property rights. This is particularly with respect to the bundle of rights lawyers call a profit-'a-prendre. was originally an It embodimentof the collective rightsof villagers in a feudal manorto grazeanimalsor cut fuel in adjoiningwaste lands. Whatthe common-lawprocess has achievedis the reform of that ancient profit-'a-prendre its wide use today in the form of to common-law grants from individualowners to individualtenantsfor grazing, logs, minerals,oil, water, and so forth. At the same time the common law has refinedand clarifiedthe bundlesof rightswith respectto trespass,for example, or the pollutionof wateror the otherforms of nuisance. In general, we may concludethata process is at work. A second questionis whetherwe would expect thatprocessto workin the direction of efficiency. Hayek and North assertthatit does. A readingof the legal-economics real efficiency literature suggests how inefficientrules abouta standard property right might get weeded out (Posner 1972, 440). Suppose that initially the bundle of rights is consideredto be well definedin that whateverinefficiencies thereare have not been recentlyworththe cost of litigationto of escape from them. Suppose, too, that there are two possible interpretations a bundleand that the first is less efficient than the second. It may, for example, carry with it less certaintyor requirehigher enforcementcosts or transactions costs for all parties, including third parties. How does this interpretationget weeded out, accordingto Posner, Priest, and Rubin? The answer suggested has to do with relaxing the resistance of a court to re-examining seriously a property right interpretationthat has become already established. The key is that if the first, inefficient interpretation becomes more onerous, the potential pay-off to a litigant from a possible re-examinationof the tenurebecomes higher. Let us assumethatsome changein technologydoes makethe inefficientinterpretation morecostly to live with. Thentherewill be an increasein the frequencywith which resourceusers who arehurtby the firstinterpretation go to will courtfor relief. In each case the facts will be slightly different. Eventually,in some case, the facts will be such that the court will agree to re-examine the first

Property rights and property wrongs / 565 and interpretation in this or a later case will with some probabilityfind against it. is However, the second interpretation less likely to be re-examined, whenever it is current. Thus the first interpretationwill tend to disappear and the second will survive. The process, it is claimed, works in the directionof increasedefficiency. If this suggestion aboutweeding-out is somewhatunsatisfactory,it is partlybecause it has been transplantedby me from a legal literaturedealing with rules regarding of of settlementof accident and insurancecases to the interpretation characteristics bundles. Posner suggests that the outcome should be the same in both real property applications,but he has not yet convinced everyone. However, I have heard a variantof this suggestion that may make the original will unnecessary.It is thatthe inefficient interpretation be rejected, not when a court confronteach otherin a case agreesto re-examineit, but when the two interpretations thatis underappealto a courtsuperiorto eitherof those wherethe two interpretations have, respectively, been accepted. Then the big guns aimed by litigants at the less efficient interpretation may prevail, and the most efficient propertyright become standard. Economists can see many flaws in any such efficiency theory, even before the evidence is examined. First, the wealth of the litigants may be unequal. If so, the wealthierparty - the one with easier access to capital, or the least risk averse - can afford to throw more into his case than the poorer party, in disregardof which outcomepromisesthe largertotal pay-off. Actually, this conditionshouldnot tend to bias outcomes, unless the litigants were consumers; to be more precise, if the of advantages the more efficientrule were non-commercial.Forexample, in a surface rightscase a householderwho had a lot to gain fromkeepingpleasantamenitiesmight be barredfrom access to capital sources, lacking his mining adversary'sopportunity to profit from digging up the landscape. The same point is illustrated, with an opposite outcome, by eighteenth- and nineteenth-centurycountry-estates cases involving forests. In these cases the squire's pay-off from litigationfrequentlytook the form of social status, such as the display of ownership of huntingrights. This non-commercial goal was pursued relentlessly in the face of sometimes larger pay-offs from other uses of the land. A second flaw is that there may not be 'pure competition' among the thus leading to a biased outcome. For example, insurancecompanies interpretations, or oil companies faced with litigation may see that their long-run interestin other cases requiresthat they band together and prevent certainkinds of findings. Other potentiallitigants, however, will have only a one-shot interestand will tend to settle without regard to the long-run consequences of a judgment or precedentfor their group. A third source of bias can exist in the judicial procedureto be followed. For example, persons with only a small amountto gain from a new definitionof rights not rules or the nmay be able to appearin court, because the common-lawprocedural judges may hold that these persons have no 'standing.' These flaws in the theory that efficient outcomes will tend to emerge from real propertycases can be serious. Taken together they should not be consideredmere

566 / Anthony Scott exceptions to the theory that common-law procedurestend towards more efficient of interpretation rights in naturalresources. They tend, in my opinion, to put the generalizationitself into serious theoreticalquestionandlead one to wonderwhether Hayek, North, and Posner can be right. When I look at the real world of naturalresources, these theoreticaldoubts are confirmed. Bundles of real propertyrights in resources are not always continually being redefined so as to make their holding or transfermore effective, let alone efficient. The process seems to work both ways. The best examples for the Posner theoryoccur in urbanandfarmland andmineralland. Tenuresin agricultural land are reasonably efficient, in that landholderscan do many things under common law withouthigh transactions costs. The same is trueof separated mineralrights, both for mines and for oil and gas wells. However, I observe that for other naturalresourcesthere is much to be desired. Exclusive rights to timber are very primitive, and, even if you wanted to acquire standingtrees but nothingelse, it would be best to buy the land outright.Better still, simply buy the company thatowns the land on which the trees standandbecome the underlyinglandlordyourself. For still otherresourcesthe common law process can hardlybe said to have done anythingbut reduced the efficiency of the resourceuse. I offer four examples. 1. Oil pools are unitized today, not with the help of the common law, but under provincialstatutesthat have supplantedcommon-lawrules. 2. In Canada there is no good common-law bundle applying to the use or managementof ground water resources. The common law applying to ground water is grotesquely adapted from that applying to hunting wild animals, and whereverwateris scarce, the law is in the process of being supplanted statutes by and regulations. 3. Even worse are the common law rules applyingto fishing andto waterresources. Both are complicated. Fishing rights have been repeatedlytested in the English courts, and the common-law procedurehas led the use of fisheries into a cul de sac. Thereit waits to be rescuedby governmentregulationof fish management and harvesting. 4. The same is true for inland water supplies. Over 100 years ago it was found that the allocation of water or water quality by the system of tying riparianrights to adjoiningparcelsof landwas totally impracticable. the commonlaw could not But evolve a new rule. The minersand ranchershad a go, but it seemed impossibleto adapt common-law rights. Eventually governments intervenedto superimpose two entirely new systems of water allocation. Both approachesproduce water rightsthatarepreferableto anythingthatcould have been workedout by evolution in the common law. I conclude this section by agreeingthatthereis in the common law a set of forces thatcould incrementallyimprove the efficiency of common-lawbundlesof rightsto resources.However, the theory is too ambitious.It does not lead to confidentlyheld conclusions that all will evolve for the best. When one turnsfrom the theory to the ways in which the resourcesare actuallyheld undercommon law, one finds much to

Propertyrights and propertywrongs / 567 complainabout.The spontaneousevolutionof which HayekandPosnertalkhas often been disastrous. The cases, shot with distributionaland non-competitiveelements, have gone the wrong way. Anyway, it was perhapsimpossible to believe they could ever go the right way. To do so the small incremental reinterpretationsof common-law rights would have had to reverse completely the underlying legal concept. A common right of fishing, for example, would have to evolve into a transferable,exclusive, private right of fish management. Could an incremental of process ever, throughlitigation over minorcharacteristics rights, reachthis polar opposite?

And so I come back to my catchy title. I have been tracingthe connectionbetweenthe philosophicalidea of 'property'in general and the tangible bundlesof rights to real propertythat all of us could own. The philosophers'theory of propertyis all about distribution,and so are the lawyers' concerns aboutreal propertyrights. of But in our law thereis an understanding a process by which realpropertyrights evolve. It may not tend towards efficiency in their characteristics,but they do get adaptedfor betteror worse, for right or for wrong, into new definitionsof standard rights. My conclusion is thatwe arefaced with a seriousproblemin decidingon the scope of interventionin this system. Those who desire the benefitsof a marketsystem will declare that propertyrights should be reliable and permanent,independentof the means governmentand changedonly by division andtransfer.But to be 'permanent' they may unduly constrain as yet unknown technologies and land uses. In a sense the presentcombinedor compromisesystem works well; underit the common law is left to revise the definition of standardreal property rights, aided by discreet, legislative redefinitionswhen the courts cannot take a large enoughjump to enable resourceuses to be combined efficiently. But legislative interventionscan be unsuccessful, too, andlegislative intervention as is in dangerof becomingtoo flexible. Oftenintroduced pureclass legislation, to aid This mightnot be so a particular political goal or group, it is inevitablyredistributive. bad, if the legislaturehad the power of William the Conquerorto make its imposed property rightsstick once andfor all. But it has not suchpower. I havepointedout that manygovernmentideas of privatetenurefor the formerpublic domainhave not taken as hold but have relapsedto standardcommon-lawdefinitions. Furthermore, we see every day, propertyusers - observing thatthe legislaturehas been willing to change standard private land law - can go lobbying to induce it to change it again. In our of world of shifting, rent-seeking coalitions, no interpretation a real bundle can to become established. Resourceusers insteadwill need daily to consultHansard see how their landed rights have fared overnight. But as I have just argued, I feel it is equally wrong to follow Posner, North, or Hayek. Posner and North seem to share Hayek's faith that an evolutionaryprocess could replace legislative responsibilityfor propertyinstitutions.Sometimesintent is

568 / Anthony Scott as needed, intent as interpreted a matterof public choice in the legislature.We must not simply have recourse in deciding that in the matter of real propertyinterests governmentis always wrong and rights are always right. Canwe then discerna rule of thumbfor policy makersto guide themto thatdegree of intervention,to, as the Irishmansaid, 'treadthe straitand narrowpath between rightandwrong'? I thinkI can suggest one. Tentatively,I would stateit as follows: if resourceslead resourceusersto behave in you thinkexisting rightsto land andnatural theirrights. It is truethatnew a wastefulor violent fashion, try to repairor reconstruct costs, andyou will have to thinkabout realrightssystems may have high transactions these. And it is truethatyou cannotset up such a system withoutmakinga permanent distributional judgment, similarto thatmadeby Williamwhen he gave to his officers certain rights to all of England. But alternative remedies will have their own transactionscosts and distributionalconsequences. If you can be satisfiedon these two problems, you can proceed. If you avoid regulationandgive your new system of you of rightscharacteristics excludibility, enforceabilityand transferability will find thatit will take its place in the general system of real propertybundles. Its top-level efficiency may not be demonstrable,but it will work. If you are lucky, your system, like the common-law system generally, will have within it a procedurefor further and gradualevolution in the face of conflictsthatis impersonalandunderstandable by the system of precedents may prevent future conflicts. For when there is conflict between two aggrieved land users, the common law has a paradoxicalvirtue. When litigationis possible, two wrongs do make a right.

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