Tag Archives: prior possession

Possession as the origin of property

Rose, C. M. (1985). Possession as the Origin of Property. Faculty Scholarship Series. Paper 1830.

Fascinating, beautifully written article by Carol Rose explaining the relationship between possession (especially first or prior possession) and ownership from the point of view of legal theory.

Many psychologists investigating ownership in children have tried to disentangle first possession from other principles such as invested labor. Also, psychologists have tended to consider possession as a kind of direct, physical relationship between a person and an object. Rose, however, provides reasons to mistrust those positions and makes clear that possession is much more complex than common sense dictates, for three reasons at least:

1) Legal decisions that supposedly applied a first possession doctrine (e.g., the famous Pierson v. Post case) incorporate other principles as well, such as “reward to useful labor”. Actually, John Locke’s labor theory of property can be seen as very close and akin to the first possession principle. He makes it clear that it is the first agent who takes control of a natural resource through her work that gains ownership over it. He uses the simple example of picking an apple: the apple becomes mine when I pick it because I have added my labor to it and made it my property. Notice that, in this case, the added labor is minimal, and the crucial factor is that I picked the apple before anybody else. First possession and labor theories of ownership are similar and related to each other; they even imply each other.

2) Possession is not a direct grasping or grabbing of an object. Possession only takes place in the context of intersubjective conflict, or at least competition and potential conflict. Although there are precursors of possessiveness and territoriality in animals, human possession is not a purely natural, physical relationship between a person and a thing. Rather, it is a social act that follows proto-institutional or institutional (in Searle’s sense) rules.

3) Among those social and proto-institutional rules, the rules establishing what counts as giving public notice of an act of possession play a crucial role. For instance, what does a conqueror need to do in order to announce to the world that she has discovered virgin territory and therefore has a legal claim over it?

According to Rose, “common law defines acts of possession as some kind of statement. As Blackstone said, the acts must be a declaration of one’s intent to appropriate.” “Possession now begins to look even more like something that requires a kind of communication, and the original claim to the property looks like a kind of speech, with the audience composed of all others who might be interested in claiming the object in question. Moreover, some venerable statutory law obligates the acquiring party to keep on speaking, lest he lose his title by “adverse possession.”

Possession then requires the possessor to perform certain speech acts (in the technical sense this term has for speech act theory).

I quote Rose again:

“Possession as the basis of property ownership, then, seems to amount to something like yelling loudly enough to all who may be interested. The first to say, “This is mine,” in a way that the public understands, gets the prize, and the law will help him keep it against someone else who says, “No, it is mine.” But if the original communicator dallies too long and allows the public to believe the interloper, he will find that the interloper has stepped into his shoes and has become the owner.”

“Similar ideas of the importance of communication, or as it is more commonly called, “notice,” are implicit in our recording statutes and in a variety of other devices that force a property claimant to make a public record of her claims on pain of losing them altogether. Indeed, notice plays a part in the most mundane property-like claims to things that the law does not even recognize as capable of being reduced to ownership. “Would you please save my place?” one says to one’s neighbor in the movie line, in order to ensure that others in line know that one is coming back and not relinquishing one’s claim.”

“Thus, it turns out that the common law of first possession, in rewarding the one who communicates a claim, does reward useful labor; the useful labor is the very act of speaking clearly and distinctly about one’s claims to property.”

 

 

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Bakeman & Brownlee: Social rules governing object conflicts in toddlers and preschoolers

Bakeman, R., & Brownlee, J. R. (1982). Social rules governing object conflicts in toddlers and preschoolers. In Peer relationships and social skills in childhood (pp. 99–111). New York: Springer Verlag.

I’ve seen this article quoted over and over again as one of the first serious studies on ownership in children. I finally was able to read it, and I am very impressed both by the empirical study and the theoretical reflections.

On the theoretical level, the authors hypothesize that young children are capable of developing rules to regulate interaction with their peers, “as a consequence of a fundamental human propensity to regulate social interaction in a ruleful manner”. They say children do this “not as a result of cultural intervention.” What they seem to mean is not that rules are a natural phenomenon developed outside of culture, but that children tend to develop rules spontaneously, independent of explicit adult teaching. I believe that the authors would accept the proposition that rules are developed in the context of peer-culture. The important point Bakeman and Brownlee are making is that normativity is present in human interaction very early (during the second year of life).

The authors see possession episodes (interactions in which a child tries to take an object from another child) as a privileged source to obtain examples of early rules. We know that 18 month-olds already use the possessive “mine” in the context of their frequent possession struggles. Such disputes are often the occasion of adult intervention and rule stating. For all these reasons, possession is “the place” where one should look for children’s first rules.

In their empirical work with possession episodes, the researchers focus on two types of data: the rate of success by object takers and the rate of resistance attempts by object holders.

The main finding of this study is that prior possession influences the outcome of possession episodes. If a taker has had prior possession of the object, then her take attempt is more likely to succeed. The outcome of possession episodes among children in the second, third, and fourth year of life is not simply a matter of individual power, but can be at least partly explained by reference to the prior possession rule. The researchers also found that one year olds are as likely to resist a taker who has had prior possession as not, while three year olds were less likely to resist a taker who has had prior possession. This suggests that among the three year olds the prior possession claim may have been recognized by both children, at least at a point sufficiently early in the taking so that active resistance was less likely.

However, rule observance is not the only possible explanation for children’s behavior. Perhaps if a child has played with a toy recently, she is more likely to prefer that toy to others and hence to expend more effort in its recovery. Other children might eventually acquiesce to this more vigorous onslaught, what the authors call the ”vigor of desire.” Later, children may come to resist the prior possessing taker less, not because they have accepted a social rule, but only because they have learned about the negative consequences associated with this situation.

The authors, then, admit that there is no definitive way to decide between a “social learning” and a “shared rule” interpretation of the facts, especially in the one-year-olds. The situation is somewhat less ambivalent in the three-year-olds, because they are less likely to resist a taker who has had prior possession independently of their dominance, therefore they do not seem to be simply avoiding conflict. More importantly, the authors also claim that the difference between the two interpretations may be more apparent than real. I agree with this. The fact that children resist less when the taker is a prior possessor might reflect both a tendency to avoid conflict and a spontaneous way of regulating peer interaction. In other words, what we are dealing with here are rules at their very birth.

At the end of the article there are a couple of beautiful paragraphs that clearly express the authors’ outlook: “Young children are neither nasty brutes who must have rules imposed upon them nor noble savages who come with a built-in sense of equity; rather, they are adaptive, socially sensitive organisms trying to get along in a social world full of conflicting needs and limited resources. They may have a far greater capacity for ruleful regulation of their social affairs than we usually grant them, a capacity which only careful observations of young children playing with their age-mates is likely to reveal.”

Bakeman and Brwonlee are pioneers. Apparently they are the first who studied the prior possession rule in children. I used to think that Hildy Ross was the first. The findings are the same: even 18 month old toddlers seem to observe a basic version of the prior possession rule.