= Right versus Wrong :) ou como os ataques à propriedade têm caras (e teorias) insuspeitas
"...In any case: I believe the similarity between the Austrian and the Chicago view of law and economics to be merely superficial. In reality, both intellectual traditions are fundamentally opposed to each other. It is a common but serious error to think of the Chicago school as a defender of property rights. In fact, Coase and his followers are the most dangerous enemies of property rights. I know, this may sound unbelievable to some people. Thus let me explain, using one of Coase's examples from his famous article on "Social Cost."
A railroad runs beside a farm. The engine emits sparks, damaging the farmer's crop. What is to be done? From the Austrian (and the classic as well as the commonsensical) viewpoint, what needs to be answered is who established property first, the farmer or the railroad? If the farmer was there first, he could force the railroad to stop emitting sparks or demand compensation. On the other hand, if the railroad was there first, then it may continue emitting sparks and the farmer would have to pay the railroad to be spark-free.
Coase's and Posner's answer is entirely different. According to them, it is a mistake to think of the farmer and the railroad as either 'right' or 'wrong' (liable), as 'aggressor' or 'victim.' Let me quote Coase from the very beginning of his famous article. There he says "the question is commonly thought of as one in which A inflicts harm on B and what has to be decided is, How should we restrain A? But this is wrong. We are dealing with a problem of a reciprocal nature. To avoid the harm to B would be to inflict harm on A. The real question that has to be decided is, Should A be allowed to harm B or should B be allowed to harm A? The problem is to avoid the more serious harm." Or put differently, the problem is to maximize the value of production or 'wealth.' According to Posner, whatever increases social wealth is just and whatever doesn't is unjust. The task of the law-courts, then, is to assign property rights (and liability) to contesting parties in such a way that 'wealth' is maximized.
Applied to our case this means: if the cost of preventing sparks is less than the crop loss, then the court should side with the farmer and hold the railroad liable. Otherwise, if the cost of preventing sparks is higher than the loss in crops, then the court should side with the railroad and hold the farmer liable. But more importantly, this means also that property rights (and liability) are no longer something stable, constant and fixed but instead become 'variables.' Courts assign property rights depending on market data. And if these data change, courts may re-assign such rights. That is, different circumstances may lead to a re-distribution of property titles. No one can ever be sure of his property. Legal uncertainty is made permanent.
This seems neither just nor economical. In particular, this 'variable' way of assigning property rights will certainly not lead to long-run wealth maximization.
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