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Emerging from the Hobbesian jungle: Might takes and makes rights


  • Bruce Benson


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. Copyright George Mason University 1994

Suggested Citation

  • Bruce Benson, 1994. "Emerging from the Hobbesian jungle: Might takes and makes rights," Constitutional Political Economy, Springer, vol. 5(2), pages 129-158, March.
  • Handle: RePEc:kap:copoec:v:5:y:1994:i:2:p:129-158 DOI: 10.1007/BF02393144

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    References listed on IDEAS

    1. Viktor Vanberg & Wolfgang Kerber, 1994. "Institutional competition among jurisdictions: An evolutionary approach," Constitutional Political Economy, Springer, vol. 5(2), pages 193-219, March.
    2. Gordon Tullock, 1985. "Adam Smith and the Prisoners' Dilemma," The Quarterly Journal of Economics, Oxford University Press, vol. 100(Supplemen), pages 1073-1081.
    3. anonymous, 1982. "Overseas exchange transactions," Reserve Bank of New Zealand Bulletin, Reserve Bank of New Zealand, vol. 45, march.
    4. Umbeck, John, 1981. "Might Makes Rights: A Theory of the Formation and Initial Distribution of Property Rights," Economic Inquiry, Western Economic Association International, vol. 19(1), pages 38-59, January.
    5. Bruce Benson, 1992. "Customary law as a social contract: International commercial law," Constitutional Political Economy, Springer, vol. 3(1), pages 1-27, December.
    6. Benson Bruce L., 1992. "The Development Of Criminal Law Ans Its Enforcement: Public Interest Or Political Transfers?," Journal des Economistes et des Etudes Humaines, De Gruyter, vol. 3(1), pages 1-30, March.
    7. Benson, Bruce L, 1994. "Are Public Goods Really Common Pools? Considerations of the Evolution of Policing and Highways in England," Economic Inquiry, Western Economic Association International, vol. 32(2), pages 249-271, April.
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    Cited by:

    1. Ejan Mackaay, 1997. "The Emergence of Constitutional Rights," Constitutional Political Economy, Springer, vol. 8(1), pages 15-36, March.

    More about this item


    K40; D23; D7;

    JEL classification:

    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
    • D23 - Microeconomics - - Production and Organizations - - - Organizational Behavior; Transaction Costs; Property Rights
    • D7 - Microeconomics - - Analysis of Collective Decision-Making


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