Enforcement of Private Property Rights in Primitive Societies: Law without Government

If law exists only where there are state-backed courts and codes, then every primitive society was lawless. Indeed, one widely held definition or "theory" of law is that "the rule of law simply means the 'existence of public order.' It means organized government, operating through the various instruments and channels of legal command. In this this,all modem societies live under the rule of law [but primitive societies did not]." This definition of law characterizes the legal positivist school of legal theorists and dominates the economics profession. Even strongly market- oriented economists typically note that the market can function effectively only within a system of well-defined and enforced private property rights and that government is therefore needed to establish and enforce these "rules of the game." Any economist who would even question that law and order are necessary functions of government is likely to be considered a ridiculous, uninformed radical by most of the rest of the profession.

Volume 9, Number 1 (1989)