Stephen Clowney, ‘Rule of Flesh and Bone: The Dark Side of Informal Property Rights’

In more recent years the belief that private citizens can structure their economic and social affairs at least as efficiently and effectively as a central authority has gained broad acceptance from commentators and scholars across the political and ideological spectrum. Nowhere has this idea gained more enthusiastic acceptance than in the arena of property law. In particular, commentators have asserted that the use of private control mechanisms in the area of property rights not only produces more secure tenure in those rights, but also generates rules that are cheaper to administer, more efficient, more predictable, more just, and more welfare-maximizing for group members than those promulgated and enforced by central authorities.

In this Article, Professor Clowney sets out to qualify this rosy view of private ordering. He focuses on three canonical examples of successful private ordering regimes: the societies established by gold rush miners, lobster fishermen, and cattle ranchers. Examining each in turn, he shows that each has been plagued by staggering amounts of bloodshed and property destruction. Much of this violence and mayhem has been ignored or unreported in scholarly accounts and commentary on these private ordering regimes. As such, Clowney argues, our understanding of the true virtues and costs of such private ordering has been greatly skewed.

Professor Clowney then attempts to answer the important question of whether violence used by a central authority to impose norms and order society is more or less costly than the violence that attends private ordering. After examining a wide range of literature from across disciplines he concludes that the violence in informal property schemes is more costly, as it generates widespread human rights abuses, imposes psychic costs on innocents, disrupts the efficiency of labor markets, and impedes technological innovation.

Stephen Clowney, Rule of Flesh and Bone: The Dark Side of Informal Property Rights, 2015 University of Illinois Law Review 59.

First posted 2015-01-24 08:42:15

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