Property Rights, State of Nature Theory, and Environmental Protection
Questions about property rights, their origin, and their measure have been at the forefront of serious political discourse since ancient times. Classical writers usually approached the topic from an immutable and enduring state of nature theory. This theory asks: should all people en masse be just placed down on earth, what principles should decide the proper configuration of property rights? This initial inquiry addresses the distribution between those rights which are held in common and those which, although unowned in the state of nature, are subject to individual ownership. This question always poses challenges because either extreme solution—all one, none of the other—is likely to lead to serious allocative errors. A mixed system is likely to produce the optimal results, but only if the lines are drawn in the correct position. It is first necessary to ex-plain, for example, why rivers should be governed by regimes of common rights while land should be privatized. With respect to common property, there are no rules of priority, for all individuals have equal access to the common resource no matter when they arrive to the commons. With respect to private property, however, the rules on acquisition—“prior in time is higher in right”—adopt a strict temporal priority that explains which individuals are entitled to what property. This maxim assumes that exclusion is the applicable legal norm and joint-ownership is created solely by agreement, and not by government fiat.
