The Online Library of Liberty

A project of Liberty Fund, Inc.

• Editorial Staff
• Associate Editors
• Editorial
• Bibliographical Essay: Kingsley Widmer, Utopia and Liberty: Some Contemporary Issues Within Their Intellectual Traditions
• I: Economics and the Free Society
• The Compatibility of Justice & the Market
• Is Capitalism Free and Just?
• Is Free Enterprise Coercive?
• Private Enterprise Vs. Central Planning
• Vicious Motivations & Commercial Society
• Economic Policy: Free Trade and Values
• Violence, the State & the Rise of Capitalism
• Braudel's Ideological Theory of Capitalism
• Cognition, Choice, and Entrepreneurship
• Federal Expenditures ‘crowd Out’ Private Investment
• The Mirage of Economic Efficiency
• Private Property and Energy Resources
• Rent Control Vs. Economic Reasoning
• II: Law, Liberty, and Political Thought
• Restitution Vs. Punishment & Crime Prevention
• Criminology & Rationales For Punishment
• Defending Freedom of Contract
• Privatizing Public Parks
• Law and the American Economy
• Sumner, Social Darwinism & Property
• Lagos and Colonial Property Rights
• Price Controls, Legal Regulation & Inflation
• Discrimination and Affirmative Action
• The First Amendment and Pornography
• The Right to Leave Any Country
• The Evolving Notions of Individual and Society

Privatizing Public Parks

James P. Beckwith, Jr.

• Professor of Law at North Carolina Central University

Private property rights are commonly assumed to be incompatible with preserving such environmental resources as our national parks. Many thus believe that government ownership is necessary to preserve park areas. Professor Beckwith argues that private alternatives to public ownership of parks are, in fact, legally feasible and are, moreover, desirable on both efficiency and ethical grounds.

The impediments to privatization of the public parks are not legal. Indeed, the legal system could quite easily adapt to a privatized system of parks and recreation. If there were a need, imaginative conveyancing lawyers could devise a way to meet it. Just as the private lawyers made possible the mortgage, long-term lease, and numerous uses of the law of trusts, so could they be the legal architects of the private parks. Private lawyers' creative drafting could renew the private law and build consensual, voluntary institutions consistent with economic efficiency and individual freedom.

The impediments to privatizing public parks are, in fact, primarily political. The legal possibilities of privatizing public parks are today inseparable from questions of public choice since interest group coalitions have politicized economic choice by invoking public law. Such public choice questions are crucial ones for lawyers. Because they are often harbingers of a drone-like “rent seeking” in a politicized society, their services are frequently a form of social waste. By encouraging the rent seekers' breakdown of restraint, the new public lawyers are degrading and transforming the law from an instrument of spontaneous private agreement into one of public coercion. The era of politicization has witnessed the decline of the evolving common law and the rise of transfer legislation.

Privatization of park services would encourage efficiency by awarding contracts to low-bidding firms. User charges assessed against those who visit the parks would control overuse and deterioration. It is essential that property rights in parks be defined, transferred, and enforced, for it is only by the alleged inability to exclude nonusers that anyone could justify public control and the avoidance of user fees.

Public parks nominally belong to “the people,” but this really means that they belong to only those people who use them, not to all the people. Public parks could be sold at auction to the highest bidders. The new private owners could charge market-clearing admission fees. Being more responsive to consumer preference, the parks would become much more diverse. Individual liberty would also be enhanced since private parks would rest on the consent of the voluntary contracting parties. The private ownership of the parks would be a form of “fee simple absolute” and would allow the owner to use, sell, or bequeath the park at will. The author develops several legal questions in regard to how the parks would be managed by corporations or tenancy in common under the traditional tort principles of caring for the park users. Other legal issues analyzed are the qualification of the fee simple, promises regarding the use of the park land, and privatization with respect to tort law and criminal law.