Property rights rule: comments on Bart Wilson's ‘The primacy of property; Or, the subordination of property rights’

Abstract

AbstractBart Wilson argues that property is based on custom, not rights. Wilson (2022) further argues for the primacy of property over property rights. Wilson's research, including the recent book, The Property Species: Mine, Yours, and the Human Mind (2020), is a significant and arguably pathbreaking contribution to the vast literature on property and property rights. It also falls into the trap of economic arguments that unnecessarily devalue legal rights. I ague that we can all agree that ideas about property are always important to understanding property rights but that property rights still rule. This is in part because those who have property typically care most about property rights. I also argue that Wilson's concept of property is too focused on private ownership, rather than shared ownership or even government ownership of property. I suggest that considering the idea of sharing and other legitimate forms of property ownership alongside private ownership would generalize Wilson's constructivist theory of property and improve our ability to explain the diversity of property rights.