23 Pages Posted: 8 Apr 2009 Last revised: 19 Nov 2009
Date Written: November 18, 2009
Legal scholars have never settled on a satisfactory account of the evolution of property rights. The touchstone for virtually all discussion, Harold Demsetz's Toward a Theory of Property Rights, has a number of well-known (and not so well-known) shortcomings, perhaps because it was never intended to be taken as an evolutionary explanation in the first place. There is, in principle at least, a pretty straightforward fix for the sort of evolutionary approach pursued by followers of Demsetz, but even then that approach - call it the conventional approach - fails to account for very early property rights, right at the genesis. The early developments are better explained by a very different approach based on evolutionary game theory. The game theoretic approach can account for a basic system of property rights rooted in possession; it cannot, however, account for complex property systems. To explain the latter requires the conventional approach. Hence, the two approaches combined suggest a satisfactory account of the origins and development of property rights systems.
Keywords: Harold Demsetz, property rights, evolutionarily stable strategy (ESS)
JEL Classification: K00, K11
Suggested Citation: Suggested Citation
Krier, James E., Evolutionary Theory and the Origin of Property Rights (November 18, 2009). Cornell Law Review, Vol. 95, p. 139, 2009; U of Michigan Law & Economics, Olin Working Paper No. 09-006; U of Michigan Public Law Working Paper No. 147. Available at SSRN: https://ssrn.com/abstract=1374980