- •Contents
- •Table of Cases
- •List of Contributors
- •Introduction
- •1. Bottom-Up Theories
- •2. The Humean Approach
- •1. Introduction
- •2. The Moral Right to Labour Productively
- •2.1 The intellectual context for Lockean rights
- •2.2. Labour as a moral right
- •3. Property Acquisition in Labour Theory
- •3.1 Extending labour from the person to things
- •3.2 The social character of productive appropriation
- •3.3 Productive use as a limit on labour
- •3.4 The communicative function of productive labour
- •4. Control Rights in Labour Theory
- •5. Accession in Labour Theory
- •6. Lost Opportunities to Capture in Doctrine
- •7. Acquisition in Doctrine
- •7.1 The basic test for capture
- •7.2 Constructive capture
- •7.3 Multiple proprietary claims
- •8. Accession Policy and Ratione Soli Doctrine
- •9. On the Relation between Legal Property and Moral Rights to Labour
- •10. Conclusion
- •3: Property and Necessity
- •1. Some Conceptual Preliminaries
- •2. Winstanley’s Challenge
- •3. Grotius on Property and Necessity
- •4. Three Important Objections
- •5. Saving Property and Public Necessity
- •6. Is the Right of Necessity a Property Right?
- •4: Private Property and Public Welfare
- •1. The Fifth Amendment Paradox
- •2. Why Acquisition?
- •3.1 Physical possession
- •3.3 Exchange
- •4. Property in Civil Society
- •4.1 The origin of welfare entitlements
- •4.2 Civil society as a bifurcated entity
- •5. Property in the Political Community
- •5.1 Property in the totalitarian state
- •5.2 Property in the dialogical state
- •6. Conclusion
- •5: Average Reciprocity of Advantage
- •1. Introduction
- •2. Background
- •2.1 Judicial opinions
- •2.2 Academic commentators
- •3. Sources of Average Reciprocity of Advantage
- •4. The Limits of ‘In-Kind’ Compensation
- •4.1 General reciprocity
- •4.2 Probabilistic compensation
- •4.3 Basic structural problems
- •5. Reciprocity and Respect
- •5.1 Accepting the conclusion
- •5.2 Rejecting the premisses
- •5.3 Partial, ‘objective’ compensation
- •6. Conclusion
- •1. Introduction
- •2. Between Promise and Detachment
- •2.1 The moral principle
- •2.2 The value of LPA
- •3. Legal Enforcement
- •3.1. Encouraging pre-contractual Investment
- •3.2 Building up trust: the role of LPA
- •4. Proprietary Estoppel
- •4.1 Varieties of PE
- •a) Bargain
- •b) Gifts
- •4.2 The remedy
- •5. Conclusion
- •7: Possession and Use
- •1. Possession
- •2. The Priority of Exclusion
- •3. Bringing Actual Use Back In
- •4. Conclusion
- •8: Possession and the Distractions of Philosophy
- •1. Introduction: The Puzzle
- •3. Possession and Title
- •4. The Right of Possession and its Omnilateral Structure
- •5. Possession and the Incidents of Ownership
- •6. A Principled Practice of Property?
- •7. Conclusion
- •9: The Relativity of Title and Causa Possessionis
- •2. Privity, Estoppel, and Rights to Possess outside of Ownership
- •2.1 A public law problem?
- •2.2 Privity: the missing link between property and person
- •2.3 Let the chips fall where they may
- •3. Conclusion
- •1. Introduction
- •2. Setting the Limits of Property Rights
- •2.1 Where A has an undoubted property right
- •a) The ‘right to exclude’
- •b) The ‘right to use’
- •i. Chattels
- •ii. Land
- •c) Conclusion
- •2.2 Determining if B’s right counts as a property right
- •a) Physical things
- •b) Non-physical things
- •c) Equitable property rights
- •3. Conclusion
- •11: On the Very Idea of Transmissible Rights
- •1. Title and Succession
- •2. The Argument against Transfer or Transmissibility Stated: The Hohfeldian3 Individuation Argument
- •3. Why the Hohfeldian Individuation Argument is Wrong
- •4. Justifying Transmissible Rights
- •4.1 The power to authorize what would otherwise be a battery
- •4.2 The right to immediate, exclusive possession of property
- •4.3 The power to license and to give property away
- •4.4 The power to sell or transfer pursuant to an agreement
- •4.5 The liability to execution
- •5. A Last Word on Conventions and Social Contexts
- •12: Psychologies of Property (and Why Property is not a Hawk/Dove Game)
- •1. The Inside Perspective
- •1.1 Identity formation
- •1.2 Identity fashioning
- •1.3 Refuge
- •1.4 Empowerment
- •1.5. Generosity
- •1.6 Economic incentives
- •1.7 An admonitory postscript
- •2. The Outside Perspective
- •2.1. The picture from in rem
- •2.2 Hawks and Doves
- •2.3 The virtues of non-ownership
- •13: Property and Disagreement
- •1. Disagreements Substantive and Verbal
- •1.1 Verbal disagreements
- •1.2 Disagreement that is partly substantive and partly verbal
- •a) Clarifying the disagreement
- •b) The analysis of property
- •c) The metaphysics of property
- •d) What about W2 and W3?
- •3. A Minor Disagreement that is both Substantive and Conceptual
- •4. Penner Redux: A Major Disagreement that is both Substantive and Conceptual
- •4.1 Reservations: of Wittgenstein and Dworkin
- •4.2 Individuation and incomplete understanding
- •5. The Nature of Property
- •5.2 Smith and the architecture of property
- •6. Conclusion
- •Appendix
- •14: Emergent Property
- •1. Intensions and Conceptualism in Property Law
- •2. Formalism versus Contextualism
- •3. Functionalism
- •4. Holism and Emergence
- •5. An Application to in Rem Rights and Duties
- •6. Conclusion
- •References
- •Index
12
Psychologies of Property (and Why Property is not a Hawk/Dove Game)
Carol M. Rose
Writers on property have generated an array of viewpoints about the psychological states associated with the institution. The bulk of these views take the perspective of the person who owns something, and they theorize or speculate on why it matters to people to be able to claim ownership.1 In this chapter, I will designate this perspective the view from the ‘inside’—that is, the property owner’s perspective on his or her own situation—and I will briefly describe a range of the reasons that writers have given for the importance of owning things.
But my more serious interest is in what I will designate the ‘outside’ perspective, the psychological state of the non-owner, who is confronted regularly with things that belong to others. By the non-owner, I do not necessarily mean to signify persons who own little or nothing themselves, but I rather use this term more situationally, to designate those who in any particular instance observe but do not own the thing observed. It is this outside perspective that is of greatest interest in this chapter—that is, the non-owner’s recognition of and heed to the ownership claims of others. I will argue that the outside perspective is critically important to the success or failure of property regimes, but that the non-owner’s psychological state is not well understood.
One theory in particular identifies the non-owner as a ‘dove’ in a Hawk/Dove game, but I will argue that the hawk/dove analysis of property has serious flaws— not the least of which is the psychological state suggested by the dove role. A more promising avenue might be to note the relationship of the non-owner to a cooperative first mover in a tit-for-tat game, but here too the ultimate psychology remains somewhat mysterious, or as Jon Elster calls it, magical.2
But I will begin with the inside perspective, focusing on some psychological states that have been said to accompany property ownership. While there is considerably more to be said on the subject,3 the following pages give a very rough summary of that topic.
1 |
See e.g. a very interesting survey of psychological aspects of property, almost entirely focused on |
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the perspective of the owner or claimant: Blumenthal 2009. |
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2 |
Elster 1989, 194–202. |
3 See e.g. Blumenthal 2009. |