Property Without Law? You Must be Joking!

Which came first, private property or the law? Or, to ask the question another way, do humans recognize property rights even when there is no explicit legal protection of those rights?

The answer appears to be that property preceeds law, that humans acknowledge the right to private property before they write down legal codes to protect it. In other words, law emerges from cultural norms, not the other way round.

The case study in question comes from the business of comedy, where there is no established law concerning the copyright or ownership of jokes. Why do comedians continue to write jokes if they can't own them? The reason is that comedians have worked out a set of cultural norms that take the place of written law.

Read a synopsis of the study here.

The important conclusion is that law is not the primary force shaping human relationships, and thereby, human societies. Simply passing a law, without first considering the existing informal arrangements that are in place and working will have very little effect on subsequent behavior. That is why centuries of laws against prostitution, alcohol, adultery, drugs, and particular forms of worship have largely been ineffective.

Law, alone, cannot make man better. That is a crushing blow to both social progressives and social conservatives, both of whom want to use the law to remake human behavior and human society in their own image.