Further towards a theory of the emergence of property

The earliest use of the term property right that I can find in Google Books is Lord Gardenston (1774, p. 14): “The great argument, or ratio dubitandi, which I own at first almost convinced me, is, that the author has undoubtedly a property-right in the original manuscript composed by himself; why should he lose it by publication, as he intends only to give the instruction or pleasure of reading, not the profit of publication or reprinting? I answer that, certainly the author has a real property in the manuscript of his own work; but, in the nature of the thing, by publication, gives his work to the public, and he gives the same species of property to every individual who buys the book, which he had in the original copy before publication.”

Anderson and Huggins (2003) is a rare exception: “Property rights are the rules of the game that determine who gets to do what and who must compensate whom if damages occur” (p. 2). I too will use the concept of rules and rule-following as the core of property emerging as a moral custom.

Merrill and Smith (2007) argue that for property to work it must be recognized as moral, but they do not explain how property emerges.

One example of the latter, of several, that Wierzbicka gives is “l’astrologie est un rapport naïf et empirique au cosmos (astrology is a naïve and empirical relationship with the cosmos)” (2010, p. 11). In contrast, in English an empirical relationship is desirable and sound, “Efforts are being made to research it scientifically on the basis of empirical evidence instead of philosophical logic and reasoning” (p. 12).

The two other uses of ius are (1) justice, from which iustitia and iustum are derived and (2) law, in the juridical sense (p. 467).

One might also plausibly argue that property in chattels, which doesn’t accidentally sound like cattle, historically well-preceded property in land. Thus, the transfer of the domain of property from chattels to land and externalities is a separate and open question.

Cf. Wittgenstein (1953, §422): “[T]here is a picture in the foreground, but the sense lies far in the background; that is, the application of the picture is not easy to survey.”

Curiously, agendi, translated as the future passive participle of the verb to act (agere), is considered to be the marking of the jussive mood.

Kimbrough et al. (2010) do just that in three successive treatments.

The resources in DeScioli and Wilson (2011) also lie free for any taker, but the participants are unable to discuss the situation. Their avatars can only inflict damage, benignly smile, or extricate themselves from a showdown in which two participants wish to consume the same resource.

“Like Darmok and Jalad at Tanagra.”

http://​www.​wordfrequency.​info/​.

In stark contrast, Buchanan and Wilson (2014) find only one instance of anyone objecting to the “re-selling” of a non-rivalrous good produced by another person, and the words steal, stealing, steals, stole, and stolen were never once used in 5,183 words of a treatment with no enforcement of property.

Crockett et al. (2009) observe that roughly half of the pairs never discover exchange (and hence specialization). Groups of four always discover exchange and early on.

Moving the items to an unsuspecting location is a commonly employed strategy when possession is particularly unstable.

They also tend to avert their eyes when they are privately paid their earnings at the conclusion of the session.

See Kimbrough and Wilson (2013) for an experiment that uses geography as a treatment condition to induce the solidaristic tribal instinct of “us versus them.” They then subject the world to an unforeseeable productivity shock to ask whether the rules of property can adapt to outsiders. Smith et al. (2012) also find that such tribal sentiments feed wasteful investment in capabilities to plunder and to defend against predation.

The Latin word regula is the common root for both rule and regular.

Samuel Johnson’s dictionary (http://​johnsonsdictiona​ryonline.​com/​) from 1755 defines sympathy as fellow-feeling; mutual sensibility; and the quality of being affected by the affection of another. Our word empathy, which wasn’t available to Smith, fits better than sympathy for the modern reader not familiar with 18^th century diction.

’s plan to “steal” only from the master of mischief and no one else actually worked. Why? Because everyone else held to their moral convictions.

Concepts are denoted by small caps, words by italics.

Foxes were pests in the early nineteenth century and not the graceful creatures they are today.

I thank Ron Rotunda for the reference.

Banner (2011) traces its first uses to George Sweet in 1873, with respect to proprietorship, and to Robert Campbell in 1881, with respect to property. See Symposium (2011) for a debate on the merits of the metaphor.

Smith (2012) lays bare the bundle-of-rights metaphor as a tenable theory of property. See also references therein for more of his articles on this topic. He, like Schmidtz (2012), takes the right to exclude as a core principle of property. To it, Smith (2012) adds the information costs of governing that right to complete his modular theory of property. While the right to exclude is indeed a core principle of the practice of property, it is not the right place to look to understand the emergence of property, for it is difficult to see how the right to exclude becomes moral. What is the emotion, or more precisely, the passion, that compels commitment to a right to exclude that is distinct from and prior to resentment as a defense against loss? A right to exclude is part of the practice of property but not proximate to the emergence of property. When unaligned expectations lead to a conflict, the open question is whether the conflict should be settled with a positive statement of a right to exclude or a negative statement of either (a) what harm did not occur or (b) what should not have been done to cause the harm.

Smith (2012) similarly concludes that “[r]ights to exclude are a means to an end, and the ends in property relate to people’s interest in using things” (p. 1704). Claeys (2012) credits Smith (2012) for that conclusion but critiques his theory for failing to explain “how, why, or to what extent exclusion and governance each institute or embody the moral norms internal to property in practice” (p. 143). This article takes the step of incorporating the morality of harm into the emergence of property regarding things.