Emerging from the Hobbesian jungle: Might takes and makes rights

The conflict over scarce resources in the Hobbesian jungle may be avoided if rules of obligation delineating property rights develop along with institutions of governance. One possibility is a “duress contract” as the strongest individual threatens others who agree to enslavement. Thus, “might takes rights.” Alternatively, individuals with similar capacities for violence may enter a “consent contract” establishing rules of obligation and then voluntarily participating in governance. They will not agree to a rights assignment that produces less wealth than they expect through violence, however, so “might makes rights.” A might-takes-and-makes-rights analysis is outlined to explain the continuum of legal institutions and property rights allocations that can evolve between these two extremes of duress and consent. Increasingly finely delineated private property rights tend to evolve under institutions produced by consent contracts, while common pool problems tend to arise near the duress contract end of the spectrum. This paper draws from a larger project on “The Evolution of Law” which has been supported by the Earhart Foundation. Discussions with and comments by Randy Holcombe, Kevin Reffit, and two anonymous referees led to significant improvements in the development and presentation of the arguments, as did discussant comments on a related paper made by Douglas Ginsburg and participants in the Friedrich August von Hayek Symposium on “Competition Among Institutions” in Freiburg, Germany, June 1–4, 1994, sponsored by the International Institute at George Mason University and the Walter Eucken Institute, Freiburg.