Entitlements to Things in a Complex World

Abstract

This paper applies the tools of property rights economics and complex systems theory to the structure of the legal and economic property entitlements over time. Both conventional legal theories and most institutional economic approaches treat property as a collection of separable entitlements that reflect the attributes of resources in an additive fashion. This paper will argue that the role of thinghood and related concepts in property law help manage the costs of complexity while at the same time providing a flexible and dynamic platform for both impersonal and personal interactions. As an institution, this platform provided by property law could not be replicated by contracting. A theory of property based on complexity costs helps explain and justify recent developments in property law that respond to technological change. The advent of drone overflights, hydraulic fracturing, new intangibles supported blockchain, and the like all present challenges to existing property concepts. Seeing property law as a complex adaptive system with emerging properties at the system level can explain how the law can thread the needle between excessive rigidity associated with formalism and the indeterminacy that realists and their successors see as omnipresent in the legal system. Thinghood is not arbitrary or totally exogenous but is partially emergent out of the underlying structure of interactions between valued attributes.