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11 Journal of Institutional Economics 725 (2015)


Hodgson's (2015) critique of extra-legal 'property rights' - in this case, so-called 'economic property rights' - is right on target. This Comment contributes two further points to his critique. First, the notion of 'economic property rights' is based on what Gilbert Ryle (1949) referred to as a 'category mistake', conflating physical possession, which is a brute fact about the world, with the right or entitlement to possession, which is a social or institutional fact that cannot exist in the absence of some social contract, convention, covenant, or agreement. The very notion of a non-institutional 'right' is oxymoronic. Second, the fact that property is an institutional fact does not mean it must exist with the structure of a 'state' (as Bentham suggested). Rather, institutions like 'property rights' only require some community, however large or small, operating with what Searle (1995; 2005) calls collective intentionality and collective acceptance, according to shared 'rules of recognition' (Hart, 1997).