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The Property Right Paradigm

Armen A. Aichian, Harold Demsetz

The Journal of Economic History

Volume 33, Issue 1

The Tasks of Economic History

March 1973, 16-27.

Index

Introduction

The Structure of Rights

The Social Consequences of the Structure of Rights

The Development of Property Rights Structures

Bibliographical Appendix

Introduction

ECONOMICS

textbooks

invariably

describe

the

important

economic

choices

that

all

societies must make by the following three questions:

What goods are to be produced?

How

are these goods to be produced?

Who is to get what is produced?

This way of stating social

choice

problems

is

misleading.

Economic

organizations

necessarily

do

resolve

these

issues

in

one

fashion

or

another,

but

even

the

most

centralized

societies

do

not

and

cannot

specify

the

answer to these questions in advance and in detail.

It is more useful and nearer to the truth to

view a social system as relying on techniques, rules, or customs to resolve conflicts that arise in

the use of scarce resources rather than imagining that societies specify the particular uses to which

resources will be put.

Since

the

same

resource

cannot

simultaneously

be

used

to

satisfy

competing

demands,

conflicts of interest will be resolved one way or the other.

The arrangements for doing this run

the full gamut of human experience and include war, strikes, elections, religious authority, legal

arbitration,

exchange,

and

gambling.

Each

society

employs

a

mix

of

such

devices,

and

the

difference

between

social

organizations

consists

largely

in

the

emphasis

they

give

to

particular

methods for resolving the social problems associated with resource scarcity.

Capitalism relies heavily on markets and private property rights to resolve conflicts over the

use

of

scarce

resources.

These

fundamental

characteristics

of

an

idealized

capitalistic

system

have

been

taken

for

granted

by

most

mainstream

economists

even

though

the

discipline

of

economics

developed

contemporaneously

with

Western

style

capitalism.

It

is

unfortunate

that

the study of the underpinnings of capitalism has been left by default to its critics on the left.

But recent years have witnessed increasing attention to the subject of property rights and to

the beginning of a somewhat different approach to the analysis of social problems that find their

source in

Grateful

acknowledgement

for

aid

is

made

to

the

E.

Lilly

Endowment

Inc.

grant

to

the

Economics Department, U.C.L.A. for research on behavioral effects of different property rights.

16

scarcity.

Three questions are suggested by this growing literature: (1) What is the structure

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of property rights in a society at some point of time? (2) What consequences for social interaction

flow from a particular structure of property rights? and, (3) How has this property right structure

come into being?

Economic historians can contribute very

much to overcoming our ignorance

about the answers to these questions, and our purpose here is to facilitate historical research on

these problems by clarifying somewhat the content of these questions.

THE STRUCTURE OF RIGHTS

In common speech, we frequently speak of someone owning this land, that house, or these

bonds.

This

conversational

style

undoubtedly

is

economical

from

the

viewpoint

of

quick

communication, but it masks the variety and complexity of the ownership relationship.

What is

owned

are

rights

to

use

resources,

including

one?s

body

and

mind,

and

these

rights

are

always

circumscribed, often by the prohibition of certain actions.

To “own land” usually means to have

the right to till (or not to till) the soil, to mine the soil, to offer those rights for sale, etc., but not to

have the right to throw soil at a passerby, to use it to change the course of a stream, or to force

someone to buy it.

What are owned are socially recognized rights of action.

The strength with which rights are owned can be defined by the extent to which an owner?s

decision about how a resource will be used actually determines the use.

If the probability is “1”

that

an

owner?s

choice

of

how

a

particular

right

should

be

exercised

actually

dominates

the

decision

process

that

governs

actual

use,

then

that

owner

can

be

said

to

own

absolutely

the

particular right under consideration.

For example, a person may have an absolute right to pick

apples off a tree, but not to prune the tree.

The

domain

of

demarcated

uses

of

a

resource

can

be

partitioned

among

several

people.

More

than

one

party

can

claim

some

ownership

interest

in

the

same

resource.

One

party

may

own the right to till the land, while another, perhaps the state, may own an easement to traverse or

otherwise use the land for specific purposes.

It is not the resource itself which is owned; it is a

bundle, or a portion, of rights to use a resource that is owned.

In its original meaning, property

referred solely to a right, title, or interest, and resources could not be identified as property any

more than they could be identified as right, title, or interest.

17

Distinct from the partitioning of the domain of uses to which a resource may be put is the

decision process that may be relied upon to determine that use:

The exercise of a particular right

may depend on a decision process in which many individuals share, such as in the use of majority

voting.

The right to vote may be exercised individually, but it is the pattern of votes by many

individuals that determines the way in which a right to use a resource will be exercised.

There are two important questions that can be asked about the structure of property rights in a

society.

The first asks which property rights exist.

There may exist a particular right of use in a

society that did not exist earlier or that does not exist in other societies.

For example, early in the

history of radio, users of frequencies did not own the right to prevent members of the community

from broadcasting on these same radio frequencies.

Any person who wished to could broadcast

on any frequency, and that is still true today for certain bands of radio frequencies.

The right to

offer

heroin

for

sale

on

the open

market

does

not

exist

in

the

United

States

although

it

may

in

other countries.

The right to advocate particular political doctrines exists in greater degree in the

United

States

than

in

Russia.

(It

should

be

noted

that

the

right

to

advocate

is

a

right

to

use

resources, for no advocacy could take place without the use of a place and other facilities.)

The

second

question

calls

attention

to

the

fact

that

the

identity

of

right

owners

may

vary.

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Perhaps the most important ownership distinction is between state (public) ownership and private

ownership.

An

easement

right

may

be

owned

by

the

state

or

by

an

individual.

The

right

to

deliver first class mail is owned by the state, whereas the right to board troops without permission

is

not.

Needless

to

say,

the

classification

of

social

systems

according

to

the

degree

of

centralization

of

control

is

closely

related

to

the

degree

to

which

property

rights

are

owned

exclusively by the state.

There is some ambiguity in the notion of state or private ownership of a resource, because the

bundle of property rights associated with a resource is divisible.

There can and does exist much

confusion

about

whether

a

resource

or

“property”

is

state

or

privately

owned.

Some

rights

to

some uses of the resource may be state owned and others privately owned.

While it is true that

the degree of private control is increased when additional rights of use become privately owned, it

is somewhat arbitrary to pass judgment on when the conversion to private control can be said to

change the ownership of the

18

bundle of rights from public to private.

The classification of owners can be carried beyond

the important state and private dichotomy.

Corporate, school, and church owners of property are

also

of

interest.

The

structure

of

rights

can

have

important

consequences

for

the

allocation

of

resources, some of which we now illustrate.

THE SOCIAL CONSEQUENCES OF THE STRUCTURE OF RIGHTS

The significance of which rights exist can be appreciated by contrasting situations in which

there is and is not a right to exclude.

We s

hall use the phrase “communal rights” to describe a

bundle of rights which includes the right to use a scarce resource but fails to include the right of an

“absentee owner” to exclude others from using the resource.

Operationally this means that the

use of a scarce resource is determined on a first-come, first-serve basis and persists for as long as a

person continues to use the resource.

The use of a city sidewalk or a “public” road is communal,

and the rights to till or hunt the land have been subjected to this form of ownership frequently.

Often communal ownership is technically associated with state ownership, as in the case of public

parks, wherein the state technically has the capability of excluding persons from using its property.

If this right is exercised by the state frequently, as it is on military reservations, then the property

right is more properly identified as state owned, but if the right to exclude is seldom exercised by

the state, as in public parks or thoroughfares, then as a practical matter the users of the resource

will treat it as communal.

Communal rights mean that the working arrangement for the use of a

resource

is

such

that

neither

the

state

nor

individual

citizens

can

exclude

others

from

using

the

resource except by prior and continuing use of the resource.

The first driver to enter the public

road has a right of use that continues for as long as he uses the road.

A second driver can follow

the first but cannot displace or exclude him.

The difficulty with a communal right is that it is not conducive to the accurate measurement

of

the

cost

that

will

be

associated

with

any

person?s

use

of

the

resource.

Persons

who

own

communal

rights

will

tend

to

exercise

these

rights

in

ways

that

ignore

the

full

consequences

of

their actions.

For example, one of the costs of hunting animals, if they are not superabundant, is

the resulting depletion in the subsequent stock of animals.

This cost will be taken into account

only if it is in someone?s interest to do so.

This interest is provide

d

19

if someone can lay claim to or benefit from the increase in the stock of animals that results

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from a curtailment in his hunting activities.

Under a communal right system anyone who refrains

from hunting does so not to his benefit but to the benefit of others who will continue to exercise

their communal right to hunt.

Each person, therefore, will tend to hunt the land too intensively

and deplete the stock of animals too rapidly.

Often the exercise of communal rights forces persons to behave in ways that are thought to be

immoral.

In 1970, the newspapers carried stories of the barbaric and cruel annual slaughter of

baby seals on the ice floes off Prince Edward Island in the Gulf of St. Lawrence.

The Canadian

government permitted no more than 50,000 animals to be taken, so hunters worked with speed to

make

their

kills

before

the

legal

maximum

was

reached.

They

swarmed

over

ice

floes

and

crushed the babies? skulls with heavy clubs.

Government offices received many protests that the

seals were inhumanely clubbed (by humans) and often skinned alive.

The minister of fisheries

warned the hunters of the strong pressure he was under to ban the hunt and that he would do so

unless the killing methods were humane in 1970.

Clearly, it is not the hunters who are to blame

but the regulations governing seal hunting that impose a communal right to hunt on hunters until

50,000

baby

seals

have

been

taken.

The

first

50,000 animals

are

offered

free

on

a

first-come,

first-serve

basis,

a

rationing

system

that

is

bound

to

encourage

rapid

hunting

techniques

and

to

make a condition for success the degree to which the hunter can be ruthless.

The problems posed by communal rights are abundantly clear when we analyze the causes of

pollution.

Since the state has invited its citizens to treat lakes and waterways as if they are free

goods, that is, since the state generally has failed to exclude persons from exercising communal

rights in the use of these resources, many of these resources have been overutilized to the point

where pollution poses a severe threat to the productivity of the resource.

An attenuation in the bundle of rights that disallows exchange at market clearing prices will

also alter the allocation of resources.

The interests pursued by men are both varied and many.

If a price ceiling or price floor prevents owners from catering to their desires for greater wealth,

they will yield more to the pursuit of other goals.

For example, effective rent control encourages

owners of apartments to lease them to childless adults who are less likely to damage their

20

living

quarters.

Effective

rent

control

also

prompts

landlords

to

lease

their

apartments

to

persons

possessing

personal

characteristics

that

landlords

favor.

In

a

Chicago

newspaper,

the

percentage of apartment for rent advertisements specifying that the apartment was for rent only on

a

“restricted”

basis

or

only

if

the

renter

purchased

the

furniture

rose

from

a

pro

-war

low

of

10

percent

to

a

wartime

high

of

90

percent

during

the

period

of

World

War

II

when

rent

control

effectively

created

queues

of

prospective

renters.

Attenuations

in

the

right

to

offer

for

sale

or

purchase

at

market

clearing

prices

can

be

expected

to

give

greater

advantages

to

those

who

possess more appealing racial or personal attributes.

The

reallocation

of

resources

associated

with

the

absence

of

a

right

to

exclude

and

the

inability

to

exchange

at

market

clearing

prices

is

attributable

to

the

increase

in

the

cost

of

transacting brought about by these modifications in the property right bundle.

A price fixing law

raises

the

cost

of

allocating

resources

vis-á

-vis

the

price

mechanism

and,

therefore,

forces

transactors

to

place

greater

reliance

on

non- price

allocation

methods.

This

is

obvious;

but

not

equally obvious is the role played by transaction cost when the right to exclude is absent.

Consider

the

problem

of

congestion

during

certain

hours

in

the

use

of

freeways.

No

one

exercises the right to exclude drivers from using freeways during these hours.

The right to drive