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.


Law and Economics | Property Law and Real Estate | Public Law and Legal Theory

Date of this Version

April 2009