Article   |   Volume 160, Issue 7

The Property Strategy

By
Thomas W. Merrill

June 2012










My objective in this Article is to offer a description of property as an institution for organizing the use of resources in society. There are several strategies for deciding how valued things will be used, and by whom. “Might makes right” is one approach: we can let a strongman decide these questions. Bureaucratic governance is another: we can create a hierarchical organization and adopt rules and procedures for allocating resources. Group consensus is a third: questions about resource use can be resolved through meetings and discussion among those most closely involved. The claim advanced here is that property is a distinctive strategy for determining how resources will be used and by whom. It is worth trying to figure out what differentiates it from other strategies for performing this function.

All organized human societies use the property strategy to one degree or another. Preliterate societies, with the possible exception of the most primitive hunter-gatherers, follow the property strategy with respect to certain resources, like tools, baskets, and crops. The most resolute communist states, such as Stalinist Russia or North Korea, give individuals unique rights to control certain resources, such as clothing and toothbrushes. Even within small and informally organized social groups like households, a version of the property strategy typically prevails with respect to certain objects such as toys, books, articles of clothing, and even bedrooms. My effort here is to unearth the common denominator that characterizes formal and informal uses of property in a wide range of social settings as a means of organizing the use of resources.

Once we have uncovered the common denominator of the property strategy in its different manifestations over time and place, certain implications follow for the law of property. Property law is highly complex, and all of its details cannot be reduced to the elemental features of the property strategy. Nevertheless, the law of property builds upon and grows out of the property strategy. The features of the property strategy can be seen as the base of a pyramid, the upper reaches of which are occupied by highly refined and often arcane doctrines, such as the law of future interests, common-interest communities, patent and copyright law, and asset securitization. Rather than seeking to understand the institution of property by generalizing from one or more of these refined legal doctrines, I submit that a better approach is to consider what makes property work in its most elemental applications. We can then better understand the reasons for, and limits on, the property strategy that we find in the law of property.

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