Commonality and Noneconomic Interaction

The dependence of efficient trade upon a delineation and identification of individual rights is revealed most clearly in the case of fully partitionable "private" goods. It should be evident that the requirements for mutually accepted definitions of structure need not be so restricted. Consider facilities that may, due to either technological necessity or social decision, be accessible to all members of the relevant group. Mutual agreement on the behavioral limits with respect to the use of such property is, at base, no different from mutual agreement on the boundary lines for strictly private holdings. My recognition that the fruit salesman owns the watermelons is not, in concept, different from my recognition that both he and I have rights to walk along the village street, rights that both of us honor and respect, and which neither of us calls into dispute. We both utilize the common-access facility, and we do so without overt conflict only because of our mutual recognition and acceptance of these rights. If a particular road or street should be "Private"; if one of us should hold legal title to the facility which embodies rights to exclude, the other would normally respect a "No Trespassing'' sign if one appears. This despite the possibility that, descriptively, the road or street facility might be identical in the two settings. Conflict emerges, or may emerge, not from any specific assignment of individual rights, but from disagreement over and uncertainty about just what the legally enforceable assignment is.

The same principle applies to many aspects of human behavior that are not normally classified as "economic" and that are not explicitly treated as exchange relationships. The reconciliation of individuals' desires to "do their own things'' with the fact that they live together in society is accomplished largely by mutual agreement on spheres of allowable or tolerated activity. "Equal freedom,'' as a norm or rule for social intercourse, has little or no meaning until and unless individuals are first identified in terms of acknowledged limits to behavior. The acceptance of such limits is so familiar to us all, pervading wide reaches of routine behavior as well as our attitudes toward the behavior of others, that we rarely think of the structure of individual "rights" that is underneath. Our attention is turned to definition of rights only when the tolerated limits are exceeded, when previously accepted boundaries are crossed. Only at this stage do we begin to consider drawing the limits more carefully, possibly calling on enforcement agents, or thinking about recourse to personal means of redress or defense.

The set of manners, the customary modes for personal behavior, which reflects the mutual acceptance of limits, will of course vary somewhat from culture to culture, but it is relatively easy to think of examples in any setting. I do not start my power mower early on Sunday morning, and my neighbor does not play stereo music loudly after eleven at night. Both of us recognize the possibly harmful effects on the other, and we refrain from imposing costs in this manner, even at some personal sacrifice. If one of us violates this set of "live and let live'' rules, the other is prompted to take specific action in redress. If my neighbor operates his stereo loudly in the wee hours, and does this repeatedly, I should be prompted to try deliberately to annoy him with my lawn mower, to get the police to enforce the antinoise or antinuisance ordinance, or, if one does not exist, to try to get the town council to enact such an ordinance. If all else fails, I might then resort to direct physical action against the neighbor's property or person.

It is in this context that some of the behavioral changes of the 1960s raise fundamental and disturbing issues for social stability. As noted, individuals have lived, one with another, under implicit behavioral rules that were respected by all, or nearly all, persons in community. But one of the instruments employed by the participants in the counterculture involved the explicit flaunting of traditional codes of conduct, the direct and open disregard for what had previously been considered to be acceptable standards for elementary "good manners.'' This placed stresses on the ordered anarchy that still describes much of ordinary social life in our society, stresses which were evidenced by calls for "law and order,'' for formalization and enforcement of rules that were previously nonexistent.

Social stability requires agreement on and enforcement of a structure of individual rights, whether these rights be over the disposition of privately partitionable goods, over the usage of common facilities, or over ordinary patterns of interpersonal behavior, and whether the enforcement be externally imposed or internally monitored. A possible source of ambiguity should be mentioned here. Mutual agreement, backed up if necessary by effective enforcement, is a necessary condition for social interchange. But this agreement may embody any one of an almost infinite variety of actual distributions and/or imputations of rights among persons, constrained by any one of an equally large number of possible sets of rules for personal behavior. Neither the specific distribution of rights among separate persons nor the general characteristic of the rights structure itself is relevant directly to the issue of mutual agreement, certainty in definition, and enforcement.3 Physical facilities may be variously partitioned among individuals, as units of "private property.'' Or, alternatively, such facilities maybe organized under rules that dictate common usage by large groups of persons, including the whole membership of the community. If the limits to individual behavior are well defined, voluntary social interaction can proceed in an orderly fashion under any structure. Interpersonal dealings can take place under any agreed-on assignment. Only at a second, and quite different, level of discourse do problems arise about the relative desirability of specific distributions of rights and/or about the relative efficiencies of different structures. The tendency or proclivity to inject either equity or efficiency norms, or both, too early has plagued the discussion of property rights throughout the ages.

It is, of course, possible to evaluate alternative distributions on personally chosen criteria of "justice" or "equity." More positively, it may be possible to array alternative structures of rights by criteria of economic efficiency. The owners of cattle and sheep on a grazing range may either (1) hold rights to the common pasture or (2) hold individually fenced-off parcels of land. The second arrangement may, on examination and analysis, prove to be more efficient than the first in some standard efficiency sense, but the relative inef

3. This is emphasized clearly by David Hume; see A Treatise of Human Nature, ed. L. A. Selby-Bigge (Oxford: Clarendon Press, 1960), pp. 502-3. Hume's whole discussion concerning the origins of property rights and the advantages of such rights for social stability is similar in many respects to that which is developed in this book.

Hegel's basic conception of property is also similar to that developed here. See Shlomo Avineri, Hegel's Theory of the Modern State (Cambridge: Cambridge University Press, 1972), pp. 88f.

ficiency generated under the common-ownership arrangement is not at all comparable and indeed is different in kind from that which might emerge when mutuality of agreement on rights disappears, when there is uncertainty as to just what structure of rights will be legally enforced. The range wars in the American West in the late 1880s arose because of such uncertainties as these, and not because the structure in existence was grossly inefficient in the orthodox sense or was demonstrably "unjust" by other criteria.4

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