What follows is, I hope, a tribute both to Friedrich Hayek, for whom this lecture series is named, and Richard Epstein, who was kind enough to invite me to give the lecture. Hayek has long been an inspiration for his insights about the advantages of decentralized decision making and the importance of information in understanding design of institutions. Both are recurring themes in my own work. Richard was my teacher at the University of Chicago Law School and has been a guiding light ever since. His works on nuisance law, takings, and the public trust doctrine, among others, have had a decisive influence on my thinking about property. Most relevant to today's lecture, his essay entitled Possession as the Root of Title1 was the first piece of scholarship that got me thinking about the importance of possession, many years ago.
The lecture is divided into three roughly equal parts. The first part addresses natural rights, and how the explosion of knowledge currently taking place in genetics, neuroscience, and evolutionary biology may affect our thinking about natural rights. The second part addresses possession, and asks whether perceptions of possession and respect for possession established by others may be universal features of human nature, conditioned if not determined by our shared genetic endowment. The third part asks what implications this view of possession may have for property rights. I conclude with a thought about the much mooted question whether it is possible to speak of a natural right to property.
Thomas W. Merrill,
Posession as a Natural Right,
N.Y.U. J.L. & Liberty
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/343