Inalienability and The Theory of Property Rights

Abstract

Inalienability is the stepchild of law and economics. Too often, economists note the existence of restrictions on transferability, ownership, and use, only to dismiss them as obviously inefficient on market trades. Even Guido Calabresi and Douglas Melamed, who give inalienability explicit status in their theory of entitlements, treat it as an analytic stepchild to be justified by appeals to paternalism and moralism. On inspection, however, inalienability turns out to be a very complex concept, and one whose legitimate uses can be clarified through economic analysis combined with a sensitivity to noneconomic ideasmost notably ideals ofcitizenship and distributive justice. Inalienability can be defined as any restriction on the transferability, ownership, or use ofan entitlement. So defined, inalienability is pervasive in modern, developed societies, in developing nations, and in the historical past. The variety and ubiquity of these restrictions suggest that a fuller analysis would help us better understand the role of private property in economic and social life. This Article begins such an analysis by first categorizing the possible types of restrictions, and then developing rationales that may justify some of these constraints on private ownership.