财产法的含义——当法律与经济交汇时.pdf

©2000 Daniel H. Cole and Peter Z. Grossman
Draft April 19, 2000
The Meaning of Property “Rights:” Law vs. Economics?
Daniel H. Cole
M. Dale Palmer Professor of Law
Indiana University School of Law at Indianapolis
and
Peter Z. Grossman*
Efroymson Associate Professor of Economics
Butler University
I. Introduction
There are few, if any, concepts in economics more fundamental than “property rights.” Most
elementary economics texts make the point, often early in the book, that a system of property rights
“forms the basis for all market exchange”1 and that the allocation of property rights in society affects the
efficiency of resource use. More generally, assumptions of well-defined property rights underlie all
theoretical and empirical research about functioning markets. The literature further assumes that when
rights are not clearly defined market failures result. The meaning of property rights is, thus, fundamental
to the language of economics.
Given the importance of property “rights” in economics, it might be expected that there would
* The authors are grateful to Nick akopoulos and Richard Ross for their ments
and suggestions on a draft of this article.
1 This quote is from Tregarthen and Rittenberg (2000, ), but similar statements on the central
role of property rights are found in most introductory texts.
1
be some consensus in economic theory about what property “rights” are. But no such consensus
appears to exist. In fact, property “rights” are defined variously and inconsistently in the economics
literature. Moreover, the definitions offered by economists sometimes are distinctly at odds with the
conventional understandings of legal scholars and the legal profession. Beyond semantics, different
conceptions of property “rights” can lead to differences in analysis and to confusions in cross-
disciplinary scholarship. Loose talk about property “rights” in the economics literature may even
contribute to a belief, h