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animals behave in such a way as to hold possession, or at least many of them do; and to be sure, it is true, at least insofar as we can tell, that the dominating emotion of the non-possessing rival animals is fear and a desire to avoid a damaging and fruitless conflict. But it is also true that animals have no respect for undefended claims. They constantly test one another, and with the exception of caring for the young (and not always then), they pounce on weakness. The basic attitude of the wolf or coyote appears to be that of the larcenist or opportunist, ranging from the sneak thief to the armed robber. Even sweet little songbirds invade the nests of others to engage in flagrant adultery.

But the core attribute of property is precisely that the non-owner respects the owner’s claim even when it is not defended. There is no question but that for some non-owners, rational fear is the only impediment to larceny. But that is not what makes a property regime work. By and large, in a functioning property regime, most non-owners are not larcenists, and they do not like larcenists. That set of sensibilities is what makes property regimes function: you do not have to guard your things all the time, because the ‘world’ of non-owners respects your ownership.

The distinction between possession and property has been well known by legal writers for hundreds of years. Blackstone’s discussion is a notable example, distinguishing possession (or mere occupancy) from property, the latter being a claim that endures beyond mere possession or occupancy.45 Why does the distinction matter? It matters for several reasons. First, it matters because the owner’s confidence about her property frees her actually to do something with it, without having to expend time and resources on securing what she has. With confidence about her property, she can also leave the property undefended, in order to assemble the other things she needs for whatever project she has in mind, be it a project that defines her personhood or one that makes her wealthy or one that she simply enjoys. Moreover, as James Krier has pointed out, any forms of property beyond simple physical objects are necessarily abstract, and these do not admit of possession in anything other than a metaphoric way. A modern economy depends on property of this sort—partnership interests, mortgages, stocks, options, derivatives. We could have none of this if property did not extend beyond possession.46 But fundamentally, we could not have property, as distinct from possession, without the cooperation of the non-owner, the stroller through the car park who leaves the other owners’ cars alone. That goes as well for the cashier at the movie theater, or the computer whizz who would not think of hacking into someone else’s accounts— and who helps us to find those who do.

2.3 The virtues of non-ownership

American history gives some very striking examples of the sensibilities that respect property, in settings in which fear of retaliation or punishment was virtually non-existent. John Phillip Reid’s study of cross-continental emigrants, perhaps

45 Blackstone 1776, 2: 4–5.

46 Krier 2009, 155–7.

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infelicitously titled Law for the Elephant, describes an almost unbelievably robust respect for property among the migrants along the trails to California and Oregon.47 These were persons who were far from organized law and order—families in covered wagons, making exceedingly difficult journeys in which wheel axles broke, pack animals escaped, or belongings were taken in Indian raids or lost in fording rivers. Numerous migrants were left with little or nothing after these misfortunes. Yet as Reid’s book illustrates, they would not take other settlers’ belongings without consent, even at the point of starvation. If there was fear of retaliation at some times, at many times there was not, yet unilateral taking was simply not done.

There were similar stories about Gold Rush miners, massive numbers of men thrown together pell-mell in the California foothills where they hoped to strike it rich. The miners too held very strong norms about property claims—or at least about the miners’ own claims, given that all of them at the time were trespassers on the public lands of the United States. But among themselves, the gold rush miners quickly developed norms of respect for their respective mining ‘stakes’ and for the tools that they used to exploit them. Thieves were despised, and quickly dispatched.48

Where did these norms of respect for property come from, both on the part of individuals who respected others’ claims, and on the part of the relevant collectivity that insists that non-owners respect the claims of recognized owners? Robert Ellickson has made the useful typology of first-party, second-party, and thirdparty constraints on behaviour. First-party constraints are those that one puts on one’s self, deriving from such matters as conscience, honour, a sense of justice, or pride in being a certain kind of person. Second-party constraints are those that come from concern about the other party in a transaction, particularly that the second party may cease dealing or in a more extreme case may even retaliate. Thirdparty constraints are those imposed by outsiders to any given transaction— anything from the disapprobation of the neighbours to legal constraints.49

Fear of course can be a part of deference to owners’ claims. The Hawk/Dove version of property-as-possession is essentially a story about second-party constraints, where the non-possessor fears confrontation with an owner in possession. Even when property is undefended by the owner, so that there will be no secondparty retaliation, fear can enter into a non-owner’s concern; third parties might play the enforcement role—the cops, the neighbours, the bystanders who might observe and punish larceny.

But fear is not the only psychological state involved. While fear of second parties is a relatively straightforward matter, fear does not explain first-party constraints on violating the property of others. Nor is fear a complete explanation of third-party constraints.50 In a way, third-party enforcement only kicks the question upstairs,

47Reid 1980, 350–5.

48Zerbe and Anderson 2001, 128–35; McDowell 2002, 20; cf. Umbeck 1981 (arguing that the threat of violence enforced miners’ property claims) 9, 98–132.

49Ellickson 1998, 547; Ellickson 1991, 123–36; Ellickson 1989, 43–6.

50Note the disagreement between Zerbe and Anderson 2001 and McDowell 2002 on the one side, and Umbeck 1981 on the other, concerning the reasons why gold rush miners obeyed property rules:

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posing the question why the respect for ownership affects third parties at all, and indeed affects them so strongly that outsiders will stand behind individual owners and take the trouble to punish what they regard as malfeasance. But they do. Juries are notoriously hard on behaviour that they regard as forceful or fraudulent property invasion.51

One explanation suggests that the reason why non-owners respect property is, so to speak, ‘third parties all the way down’: each person’s willingness to defer to property claims depends on the customary practices of the other people who share the same culture. In describing the Gold Rush norms, Richard Zerbe and Leigh Anderson argue that the miners brought a common culture with them, and that this culture explained (among other things) their view that individual miners’ property rights were to be respected according to shared cultural norms of fairness. No doubt there is something to this view, and it could help to explain a phenomenon that Zerbe and Anderson mention: that for Europeans and Americans, the culture in question privileged themselves alone, but not others; they rejected Chinese, Latinos, and African-Americans as equal members of their mining communities and clashed repeatedly with different ethnic groups over mining practices.52

In any event, a cultural explanation for non-owners’ respect for property raises the question of the origin of the culture itself. Might possession lurk at the root of property after all? David Hume suggested that it did, with an assist of customary practice. Like Sugden, who has admired and relied on Hume’s work, Hume thought that property claims evolved from possession. The possessor of Stake A was of course non-possessor of Stakes B–Z, but all these possessors tacitly agreed to play dove with respect to the possessions of others, since all feared the disorder and destruction that would accompany any disruption in the initially fragile equilibrium, and presumably all shared common knowledge of this generally held fear. Jeremy Waldron in this volume develops the Hume thesis, with an evolutionary story in which property emerged from the situation in which each possessor was essentially in a standoff with each other possessor.

But, pace Waldron, there was a critical next move in the Hume story: that is, over time, in their roles as non-possessors, all these players—and everyone else—got used to deferring to possessors, so that they carried that deference over to situations where the one-time possessor was no longer on location or defending the possession.53 Well, perhaps, but then, the ‘getting used to’ needs explanation. In Hawk/ Dove, deference to possession rests on rational fear, that is, calculations about

Umbeck attributes compliance to fear of second-party retaliation and third-party enforcement, whereas the other authors describe compliance as coming from first-party norms together with third-party enforcement. For a different perspective, arguing that the miners’ rules actually destabilized security by favouring claim-jumpers, see Clay and Wright 2005, 162–78.

51See e.g. Jacque v Steenberg Homes Inc. 1997; Helmholz 1983, 356–8 (noting judges’ and juries’ hostility to claims based on knowing trespass).

52Zerbe and Anderson 2001, 135–7. Zerbe and Anderson barely mention the miners’ treatment of local Native Americans, or the total lack of respect for the latter’s fishing claims or even in some instances for their lives. See McEvoy 1986, 47–8, 53–5.

53Hume 1739–40b, A Treatise of Human Nature, vol. 2: Book 3, Part 2, s. 203, at 484–513.

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expected harm from fights with the possessor. But fear would only lead the non-possessor to defer in situations where he expected resistance, and superior resistance at that. Predators are very likely to be on the lookout for any weakness in current possessors, and some are even likely to gain from the disruption of any temporary equilibrium among possessors. The chances for ‘getting used to’ are slim to non-existent in any scenario based simply on fear of reprisal or disorder. One might think that Hume himself had doubts about the standoff thesis, given the hortatory tone of the paragraphs in which he proposed it, and given the unusually copious supplementary footnotes that he added to these paragraphs.54

Deference to property, as opposed to deference to possession alone, depends on the entirely different mind-set of respect—respect even when rational calculations would advise grabbing from a weaker party, or grabbing and running from a momentarily absent or distracted stronger one. Making the leap from one mental state to the other, from rational fear to non-rational respect, is something of a mystery for rational actors. To be sure, one might say that the getting-used-to story has some explanatory power, particularly from the example of women. Until the later part of the 19th century, married women were not recognized as capable of property ownership, and it would be easy to see in this customary practice a pattern in which property ownership would be denied to those who had always been considered too weak to defend possession. On the other hand, the denial of property to women did not extend to widows, who could own some property even in the absence of male defenders. That pattern suggests that something else was driving the convention, and that the reasons for denying married women the right to property had less to do with their assumed weakness, and more to do with assuring women’s deference to males as heads of household.55

Hume’s discussion of property of course incorporated another idea about the psychology of respect for property, and indeed an idea that is much discussed in modern game theory, namely, the expectation of reciprocity.56 That is, I expect that if I respect your property, you will respect mine, and we will both be better off. Or, put in an n-person context, if I respect everybody else’s property, all of them will respect mine. This is the well-known strategy of Tit for Tat as a solution to Prisoners’ Dilemmas, and this theory too has some explanatory power, though it is incomplete, perhaps even more so than Hume’s version, which added custom to reciprocity. First is the well-known theoretical problem that in Tit-for-Tat games, someone has to make the first trusting move, at a time when no history has been established among the players—when it would be rational to suppose that every potential counterpart is simply waiting to play hawk.57 As a matter of experience,

54Readers of Hume’s Treatise of Human Nature will note the unusual number and length of footnotes in vol. 2, Book 3, Part 2, s. 3, ‘Of the Rules Which Determine Property’. One long footnote discusses the uncertainty of the meaning of ‘possession’ itself. Another (5) explores a number of ways in which property depends on ‘imagination’.

55Dubler 2003 (extensive study of 19th-century widows’ property, which Dubler describes as circumscribed by widows’ once-married state ever after the death of the husband).

56Hume 1739–40a, vol. 2: Book 3, Part 2, ss. 2–3.

57For the early description of tit-for-tat as a game, Axelrod 1984, 13–14, but see De Jasay 1989, 45–6 (noting first mover problem) and 67, n. 17 (noting endgame problem that may cause earlier cooperative inclination to self-destruct).

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too, it is hard to imagine that respect for the property of others always depends on reciprocity. During the many centuries in which married women in western nations could not own property, many if not most still undoubtedly respected the property claims of men.

This is not to say that the reciprocity view is without merit, at least insofar as the absence of reciprocity has accompanied the absence of respect for property. As to property-denied married women, we cannot easily tell what resentments may have seethed behind their overt acceptance of their husbands’, fathers’, and brothers’ rights of ownership.58 In the American south, slaves constituted another class of people who could not own their own property, at least legally. Many no doubt would have respected their owners’ claims even without the sting of fear. But slave owners often complained about slaves’ pilferage—giving some support, at least negatively, to the idea that a willingness to play the dove role about other peoples’ property depends on expectations of reciprocity about one’s own.59 The obverse is that if others do not respect your claims to ownership, you may not respect theirs either. It does seem fairly clear that those who do not own much property, or whose claims are disparaged and denied, as with slaves, do not always see owners’ claims as just or otherwise worthy of respect. Insofar as the expectation of reciprocity explains the willingness to play dove and to respect the claims of owners, the key issue could be something other than direct reciprocity. It could rather be an optimism that property is attainable, and once attained, that it will be respected by others.60

But these are only speculations. For example, let us suppose that the respect for property is based on optimism about attainment, and let us suppose that I have nothing now of much value, but I expect that I may be able to acquire property and that others will respect what I acquire in future, just as I respect the property of others now. This optimism would seem to be unfounded in a world of rational actors, where every potential counterpart would be a hawk just waiting to seize on one’s trust. Jon Elster, a political scientist who is interested in the phenomenon of socially useful behaviour, sees this kind of optimism not as rational but as an example of magical thinking: if I do X, others will do the same. This is not to discount the value of magical thinking; quite the contrary, Elster sees it as a foundation for solving the ubiquitous Prisoners’ Dilemma problem.61

Nor does the centrality of magical thinking—or of sympathy, righteousness, mimesis, playfulness, generosity or other non-rational ‘moral sentiments’—negate the value of rational actor models for mapping out human interactions. Rational behaviour, even rationality that is narrowly understood as self-interest, is necessarily

58See e.g. Murray 2007, 137–9 (describing Elizabeth Cady Stanton’s comparison of marriage to slavery because of women’s inability to hold property, contract, and have custody of children).

59Gross 1995, 275–6 (describing trial descriptions of vices of ‘bad slaves’, including stealing and running away).

60McDowell 2002, 64–5 gives an example in her explanation of the gold rush miners’ acceptance of certain kinds of limitations on claims; she argues that they were uncertain about their luck in any one spot, and that the limiting rules would allow them other opportunities elsewhere if a present claim did not work out.

61Elster 1989, 186.

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part of the mix in successful institutions like property, and thus rational actor models are clearly a powerful aid in understanding much of the logic of strategic situations.62 But they are not complete. The example of property shows that these models need a supplement, an attention to emotional elements that do not fall into a conventionally narrow version of what rationality is.

That incompleteness should at least induce some humility in rational actor models, along with a willingness to investigate the emotional sources of successful institutions—and unsuccessful ones too. David Hume had that kind of humility, with his references to customary practice and to the importance of imagination, sympathy, and affection in ideas of property, as well as with his remark that human beings are not so relentlessly self-seeking as some of his contemporaries seemed to believe. It is one of the sources of his appeal.63

In the end, just as thoroughgoing rational actors would confront a certain fundamental mystery in solving PDs—who takes the first step? why does not backward induction unravel every solution?64—so they also would confront a certain mystery about why anyone respects the property of others. Clearly the non-owning actors are not all weak doves avoiding ferocious hawks. Where no hawks threaten, the doves may still have the view that the owner’s claim is just, or that the owner will magically reciprocate toward property acquired by the current non-owner. Even then, this cooperative psychological state must at some times be threatened not only by the well-known and conventional dictates of self-seeking, but also by the sheer frisson of transgression. As Jean Genet famously remarked about the thrill of stealing, ‘you feel yourself living.’65

One could concoct an evolutionary story in which a cooperative and nontransgressive psychological propensity—a kind of bourgeois virtue—once derived from a random genetic mutation among some class of persons, must have led to success at the group level. Or one could concoct a religious story, in which God gave Adam and Eve a break at the expulsion from the Garden, conceding them an angelic glimmer of cooperation, so that at least some of the time they could refrain from snatching the products that others created by the biblical sweat of the brow. Both stories have a just-so quality that makes them something less than convincing.66 And yet, the mysterious, subtle, and not entirely universal psychological state of the cooperative non-owner functions critically to make property regimes function. To return to those sunny psychological states on the inside perspective on property, in which owners enjoy everything from self-definition to incentives to labour: those states build on outside psychology of not owning, of respecting the things that others own, even when the owners are not around.

62See Rose 2007, 1898–9 (describing property law’s expectation of subject with sensible regard for self as well as others).

63Hume 1739–40b, vol. 2: Book 3, Part 2, ss. 2–4. The quotation criticizing ‘certain philosophers’ for their ‘delight’ in exaggerating human selfishness is in s. 2.

64De Jasay 1989, 63–6.

65Genet 1949, 30. See also the movie The Grifters (Frears 1990) depicting the perpetrators’ glee at the successful conclusion of a long confidence game.

66See Mithen 2012 (criticizing Wilson’s theory of group evolution). For the tendency of rational actor models to lapse into storytelling about the evolution of property, see Rose 1990.