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Property Rights in the Market, 1 Journal of Legal and Political Sociology 10 (1943)


ALMOST under our eyes a system of property is in the making. It emerges as all such usages do out of a series of expediencies. Claims ace asserted without the law or even against its command, If for a time they endure without serious challenge, they come to be accepted by the parties immediately concerned and to be enforced by the group's ·discipline. In due course, through one device or another, they win the recognition of the state which puts its own police power behind them. The institution comes into being without the question of its establishment even being formally raised. The latest among such works of anonymous authorship is the pattern of property eights in the market.

The rise is the more notable because "we the people'' have highly resolved that the institution should never be. We have, in a long chapter of legal history, attempted to outlaw all such privileges before they could be asserted. In our cultural background lies much experience with the corporation which has asserted dominion over an exclusive area in the economy. And, whatever the form-the guild, the worshipful company, the patent of monopoly, the expression of the King's pleasure-we have looked upon it and found it bad. The common law long ago proclaimed the right of every man to the trade of his choice. The general power of utter letters of monopoly was abolished when the royal prerogative was abated into orderly government. The Constitution of the United States takes it for granted that the Congress can confer no exclusive rights; its only specified exception is in respect to writings and discoveries-and then for "limited times" only. And our antitrust acts, translating ancient right into public policy, outlaw all contracts, combinations, and conspiracies which seek to impede the domestic freedom of trade. Even when the legislature decrees exceptions, as for farmers and laborers, its avowed intent is to do no more than strengthen an inferior bargaining position. It is careful to specify that the indulgence is not to be carried so far as "substantially to lessen competition" or to induce monopoly.

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