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6 THE JOURNAL OF LIBERTARIAN STUDIES Winter recognition. Fuller concluded that this rule implies absolute authority, which cannot be withdrawn even when that authority is abused.27 Fuller's interpreta- tion of Hart's rule of recognition is tempered considerably for our purposes. As Hayek explained, law may be gradually articulated by the endeavors of arbitration of similar persons called in to settle disputes but who have no power of command over the actions on which they have to adjudicate. The questions which they will have to decide will not be whether the parties have abused anybody's will, but whether their actions have canformed to expectations which other parties had reasonably formed because they correspond to the practices on which the everyday condud of the members of the gmup was based. The significance of customs here is that they give rise to expectations that guide people's actions, and what will be regarded as binding will therefore be those practices that everybody counts on being observed and which thereby condition the suc- cess of most activitie~.'~ This view of authority also characterizes Fuller's concept of law. He wrote, "there is no doubt that a legal system derives its ultimate support from a sense of its being 'right'. . . . this sense, deriving as it does from tacit expectations and acceptances. . . . "29 With the view of law and authority suggested above in mind, let us now turn to an examination of the concept of g~vernment.'~ 11. The Concept of Government The concept of government may be even more difficult to define than the concept of law. One might defme government to mean the enterprise of or mechanisms for law enforcement, in which case the legal positivist argument would simply be inverted: If there is law, there is government. But that is certainly not the popular perception of government, nor is it the view held by the legal positivists (or most economists, for that matter). After all, Hart indicated that a society could exist without government institutions.]' It has been suggested that one way to distinguish a governmental from a nongovernmental social arrangement is that government induces cooperation through coercion, while privately arranged cooperation is achieved through persuasion. The line between cooperation and persuasion is not a clear one, however. The fact is that any property rights system is ultimately backed by a threat of force and violence.12 This is clearly the case in the primitive systems discussed below. Property rights systems require enforcement, and they cannot be enforced if there are no incentives to accept their authority. The relative level of coercion certainly is a factor to consider in defining government, but it is not the only factor. Another suggested distinction between government and nongovernment is that a private agreement to transfer property requires unanimous consent of all parties involved, while less than unanimity (e.g., a majority vote, a majority vote of
1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMITIVE SOCIETIES 7 elected representatives, or the decision of a king or dictator) is required for a transfer when a government is involved. This argument is related to the coercionlpersuasion definition, of course, and it is not completely satisfactory for similar reasons. For example, we shall see that while voluntary contractual agreements provided the basis for some primitive legal systems (also for some medieval systems, such as those in Iceland3) and Ireland3*), kinship provided the basis for still others. People do not necessarily unanimously agree to be in or contribute to production by their families, however, and it is not clear that leaving a primitive kinship group was easily or safely (and clearly not costlessly) accomplished. Because the coercion and lack of unanimity definitions of government are not completely satisfactory, a definition of government is adopted here that emphasizes the institutions that perform the functions of law production and enforcementthat is, the institutions that legislate, execute, and adjudicate. In particular, government exists when these institutions are professionalized in such a way that (1) the primary source of income for some or all of the individuals who perform the legal functions is derived from those functions, and (2) some or all of the individuals involved in the production and enforcement of laws are "bureaucrats" in the sense that their coercive powers are directly derived through some system other than unanimous agreement of the parties affected by their actions (e.g., by royal appointment or appointment by an executive who has either been nonunanimously elected or risen to authority through force). The institutional characteristics of modern nation-states and their monarchal predecessors thus imply the existence of g~vernment.~' This view of government implies that many of the characteristics of modern market economies evolved while government was e~olving.'~Simultaneous evolution does not imply that state government and its laws are necessary for the evolution of commercial law, however, and we shall see that they are not necessary for the establishment of private property and individual rights.)' 111. Primary and Secondary Rules Among the Yurok Indians and Their Northern California Neighbors Walter Goldsmidt, after studying the Yurok, Hupa, and Karok Indians and some of their Northern California neighbors, reported ". . . a culture which reflects in surprising degree certain structural and ethical characteristics of emergent capitalistic Eur~pe.")~ In this Indian society, property was universally held in individual private ownership. Socially, these Indians were organized in households and villages. There were no class or other inalienable group affiliations, and no vested authoritarian position-that is no state-like government with coercive power. Private property rights were sharply defmed. Title considerations, for example, included (1) separation of title to different types of products; (2) ownership rights
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