Private Law Theory

Abstract:
This article explores two propositions in the literature on rules of possession. The first is that rules of first possession may form the basis for “spontaneous order”. The article argues that this Hayekian proposition must take into account the relationship between property and authority, including the potential for social disorder when competition for possession combines with competition for public authority. The second is that simple rules of possession provide a baseline response to the problem of social order because of the information costs of property in a large audience context. The article argues that this proposition must take into account correlations between interpretive complexity in rules of possession and the reproduction of authority and social order in circumstances of threatened social disorder. The analysis highlights the significance of authority and enforcement for the design of rules of possession and their relationship with social order.

Daniel Fitzpatrick and Susana Barnes, Rules of Possession Revisited: Property and the Problem of Social Order. Law and Social Inquiry, Volume 39, Issue 1, 127–151, Winter 2014.

First posted 2014-07-02 05:01:09