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The Sanctity of Property Rights in American History

1 The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. Society makes property. Economic systems are defined by what they allow to become property, and the extent of property varies enormously. Some allow property claims to fixed objects, such as land and trees, sometimes including the ephemeral, such as wildlife or flowing water. Some extend property to include ideas (patents); a few include human beings themselves as chattel slaves. Societies also differ in the intensive rights they accord property holders, the bundle of state-enforced privileges attaching responsibility for the impact actions have on others. Intensive rights prevent us from assessing law as involving 'more' or 'less' protection to property because each use of property affects the property of others. Property has intensive dimensions because it involves reciprocal relationships among people; my intensive right to use property diminishes your right to be free of intrusion. For example, giving one the right to dump wastes into the air and water detracts from the rights of neighbors to clean air and water on their property; withholding rights to pollute reduces intensive property rights but protects the property of others. A society can allow the intensive exploitation of a property owner's land and water even if it damages neighboring property. Or it may privilege neighbors by restricting actions that affect others. This makes property law distributional. Where property owners have intensive rights to pollute, it reduces neighbors' real income by the loss of clean air and water or by the cost of paying the polluter to refrain from polluting. Without intensive privileges, polluters are poorer because they must mitigate their pollution or must buy rights to pollute from neighbors. Few dispute that property law has important effects on income distribution, but some choose to emphasize arguments over efficiency. In a pioneering article, Ronald Coase (1960) argued that regardless of the allocation of property rights, any clear demarcation will lead to the same efficient social outcome, the same mix of production of goods and services. Whether polluters must buy the right to pollute from their neighbors or neighbors must pay polluters to …