Goldilocks, Aragorn, and the Essence of Property.

• Author: Robinson, John
• Position: Essay

The phrase bundle of rights was used in connection with property as early as 1888. In his Treatise on Eminent Domain, John Lewis wrote, "The dullest individual among the people knows and understands that his property in anything is a bundle of rights. It is no more common for ordinary people to speak of things as property than it is for them to speak of their rights in things, as the right to dispose of a thing in this way or that, the right to use a thing in this way or that, the right to compel a neighbor to desist from doing this or that, etc." (1888, subsection 55). Since Lewis's time, the phrase bundle of rights has become the standard formulation for describing property rights in economics, law, and sociology. As a consequence of the bundle formulation, it has become common in the law and economics literature to describe property rights as merely a right between persons, only secondarily involving a thing.

In recent decades, however, a number of scholars have objected to the description of property as a bundle of rights and to the idea that property is characterized by the relationship between persons with no regard to the things owned (e.g., see Penner 1996; Merrill and Smith 2001, 2011; Mossoff 2003; Claeys 2008, 2009; Katz 2008). To illustrate an alternative perspective, many of these scholars point to Sir William Blackstone, who famously wrote that property is "that sole and despotic dominion in which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe" (1893, vol. 1, book 2, chap. 1). The critics of the bundle formulation suggest that the term property has traditionally been laden with more content than modern scholars presume. They argue that ownership is characterized by a right to exclude or by a moral claim to determine exclusively the use of some material good.

All of these theorists hold in common the idea that the bundle formulation is a wrong turn from the traditional view developed in the Western legal tradition. They argue both that ownership ought to be singled out as a unique kind of right in our scholarship and that it actually is treated as unique by the culture and even in the courts--that is, as something more than a mere bundling of contract rights (Katz 2008, 313). In the course of their arguments, many of these critics of the bundle formulation appeal to commonly understood notions of property as one component in their critiques (Claeys 2008). Likewise, the bundle theorists make an appeal to ordinary experience, as in Lewis's appeal to the "dullest individual." Both sides of the issue agree that common moral intuitions about ownership play some role in how the social institution operates.

Thus, the disagreement over the character of property and ownership is not merely an abstract and theoretical debate. Both ownership and property are concepts with which nonacademics are intimately concerned. The individual operates daily with an understanding, often unarticulated, of what it means for something to be his own. He is almost certain to have an idea of what property and ownership mean, and even if his idea is not the same as his neighbor's idea or the economist's idea, he operates with some idea in mind. Violations of our notions of ownership and property cause many of the conflicts we encounter on a regular basis. Even if an individual cannot give a precise definition of property, he will easily be able to tell you when he feels his rights of ownership have been violated.

This paper argues that an alternative method can provide useful insight into the common understanding of a concept such as property. Virgil Storr and Bridget Butkevich argue that studying cultural stories is an important way for a sociologist or economist to get greater knowledge of that culture. In a paper on entrepreneurship in the Caribbean, they write: "[E]fforts to score cultural traits must necessarily reduce cultures, which are inherently rich, dynamic and complex, to collections of measurable characteristics (e.g. indices of individualism and masculinity). The colour, the verve, the flavour of the different varieties of entrepreneurship that exist get lost in this move to come up with quantitative measures of culture" (2007, 252).

Likewise, I argue that ownership is inherently rich, dynamic, and complex and that stories can complement traditional economic and legal analysis of property rights. As Storr and Butkevich maintain, "We get at culture by reading cultural texts. To get a sense of a people's world views and values, watch the films and television shows that they watch, read the books and poems that they read and write, listen to their folktales, examine the photographs they take and the art (paintings, sketches, and sculptures) they produce" (2007, 253).

The idea and power of ownership owe much of their rhetorical and moral legitimacy to the cultural underpinnings of ownership. To understand the shape ownership ought to take in our theoretical work, we must understand how it is actually experienced by the owners and the nonowners in the society.

Fairy tales explicitly deal with a world that is not the one we live in, but that does not mean they do not communicate important information about how individuals in a culture perceive the world. Stories, especially fairy tales, J. R. R. Tolkien tells us, are "not primarily concerned with possibility, but with desirability" ([1947] 2008, 353). And the communication of the desirable is not limited completely to die impossible. The people who participate in telling and listening to stories reveal beliefs not only about what the world should be but also implicitly about the world as it is (see Dundes 1971 and Wongthet 1989).

This paper considers some of the classic fairy tales from French and German collections as well as a few tales that are longer and more explicitly concerned with ownership than some of the older stories. J. R. R. Tolkien, in particular, wrote in the fairy tale tradition, and his works are especially useful for illustrating how these stories treat ownership and property. (1) Stories by Tolkien, Oscar Wilde, and George MacDonald; the stories collected by Joseph Jacobs; and even tales with no singular author, such as the Arthurian legends, all speak to the concept of ownership.

Through an examination of folklore and fairytales--mostly those that originated in or were filtered through the United Kingdom in the past two centuries--I attempt in this paper to provide some insight into how property is experienced and thought of specifically in the Anglo-American tradition. I make no claim that the stories I examine are representative of the whole Western canon or of its depiction of ownership, nor do I argue that the stories prove one way or another the validity of the in rem view. (2) The stories simply illustrate characteristics of ownership that align with the traditional view and illuminate some related insights about reciprocal influence and social responsibility that might be useful for the debate regarding how scholars ought to talk about property.

This paper considers fairy tales that speak to three claims made by the critics of the modern bundle view of property: (1) that ownership is characterized primarily by exclusivity; (2) that what owners possess is the authority to set the agenda for a resource; and (3) that the person--thing relationship is central to property. The stories also suggest a characteristic that is not well captured in the typical treatments by in rem theorists: that an owner's identity is also changed by being an owner. Being an owner changes die way the individual interacts with those around him. Once we admit that the thing owned influences the owner, we easily understand that it also affects the owner's moral duty toward those around him.

Indeed, if the things you own affect your identity, they also affect your social responsibilities. These responsibilities are a component of distributive justice, or, as Adam Smith defines it, "the becoming use of what is our own" (Smith [1776] 1981, 398). In some mundane ways, we can see how property ownership might influence a person's identity in society: a landowner will be called generous under different circumstances than a nonowner, and, likewise, industriousness will manifest differently if I own tools. Some duties, in the stories at least, are entirely dependent on the objects we own.

Ownership and...