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‘Economic property rights’ as ‘nonsense upon stilts’: a comment on Hodgson

  • DANIEL H. COLE (a1)

Hodgson's (2015) critique of extra-legal ‘property rights’ – in this case, so-called ‘economic property rights’ – is right on target. This Comment contributes two further points to his critique. First, the notion of ‘economic property rights’ is based on what Gilbert Ryle (1949) referred to as a ‘category mistake’, conflating physical possession, which is a brute fact about the world, with the right or entitlement to possession, which is a social or institutional fact that cannot exist in the absence of some social contract, convention, covenant, or agreement. The very notion of a non-institutional ‘right’ is oxymoronic. Second, the fact that property is an institutional fact does not mean it must exist with the structure of a ‘state’ (as Bentham suggested). Rather, institutions like ‘property rights’ only require some community, however large or small, operating with what Searle (1995; 2005) calls collective intentionality and collective acceptance, according to shared ‘rules of recognition’ (Hart, 1997).

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D. W. Allen (2014), ‘The Coase Theorem: Coherent, Logical, and not Disproved’, Journal of Institutional Economics, 11 (2): 379390.

D. H. Cole and P. Z. Grossman (2002), ‘The Meaning of Property Rights: Law Versus economics?’, Land Economics, 78 (3): 317330.

G. M. Hodgson (2015), ‘Much of the “Economics of Property Rights” Devalues Property and Legal Rights’, Journal of Institutional Economics, published online. doi:10.1017/S1744137414000630.

W. N. Hohfeld (1913), ‘Some Fundamental Legal Conceptions As Applied in Judicial Reasoning’, Yale Law Journal, 23 (1): 1659.

E. Ostrom (1990), Governing the Commons: The Evolution of Institutions for Collective Action, Cambridge: Cambridge University Press.

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Journal of Institutional Economics
  • ISSN: 1744-1374
  • EISSN: 1744-1382
  • URL: /core/journals/journal-of-institutional-economics
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