Book Review: The Property Species: Mine, Yours, and the Human Mind

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, all, to The Federalist Society's teleforum conference call as just this afternoon, November 17, 2020, we're covering a book review on The Property Species: Mine, Yours, and the Human Mind.

 

      I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that expressions of opinion on today's call are those of our experts. We're fortunate to have with us today -- I'm just going to introduce our moderator. We're fortunate to have with us today Timothy Sandefur, who is Vice President for Litigation at the Goldwater Institute.

 

      Tim's going to introduce our main speaker, the author of our book today, and then, he's going to moderate a bit of a discussion for about a half hour. After that, we're going to move to audience questions so be thinking of those as we go along and have them in mind for when we get to that portion of the call.

 

      Thanks very much for being with us here today, Tim. I'll give the floor off to you.

 

Timothy Sandefur:  Thanks so much, and thank you to The Federalist Society for hosting this conversation with Professor Bart Wilson to discuss his new book on private property, which I was really eager to talk about, and I'm happy to have Professor Wilson with us.

 

      Professor Wilson is the Duncan Kennedy Endowed Chair of Economics and Law at my own alma mater, Chapman University, and is a founding member of the Economics Science Institute and of the -- is the founding member and director of the Smith Institute for Political Economy and Philosophy. All very impressive.

 

      What I'm particularly interested in is the way that Professor Wilson combines law, economics, philosophy, and anthropology in his studies.

 

      Welcome, Professor Wilson. Thank you for joining us.

 

Prof. Bart J. Wilson:  Thank you for having me. Delighted to be here.

 

Timothy Sandefur:  Now you do -- I think it's fair to say that your focus is on experimental economics. Is that the term that you would use?

 

Prof. Bart J. Wilson:  Yes, that's my training and that's my core academic work.

 

Timothy Sandefur:  And what is experimental economics, for those who might not be familiar with that term?

 

Prof. Bart J. Wilson:  It's a laboratory method of inquiry where we build models of the world, economic models of the world, and we pay undergraduates to participate in them to see how well they conform or fail to conform with our theories of economics. The better decisions they make, the more money they earn, so that's their incentive to participate.

 

      We learn, more or less, how institutions work, and what are the formal and informal ways that lead us to cooperate and achieve gains in trade.

 

Timothy Sandefur:  Is there a difference between this and behavioral economics, another term we often hear nowadays?

 

Prof. Bart J. Wilson:  Behavioral economics is a little more psychology oriented and, I think, it's a way of incorporating behavioral economics with economics -- psychology with economics, excuse me. Experimental economics grew out of a tradition of looking at markets and how they work and how well they work.

 

One of the pioneers, Vernon Smith, won the Nobel Prize for his contributions to experimental economics in 2002 and he shared that with Danny Kahneman, who is one of the major founders, you would think, of behavioral economics. He's a psychologist, so I think that distinguishes the two a bit.

 

Timothy Sandefur:  I notice, because you and Professor Smith and other of this bent talk a lot about the work of Adam Smith and the other Scottish enlightenment philosophers, you think you're working in the tradition of the Smithian/Humean tradition, philosophically speaking?

 

Prof. Bart J. Wilson:  Most definitely. There was a way of making sense of our experiments -- well, Vernon started it in the 1990s. I was still just getting out of grad school then.

 

      In the mid-2000s, in the 2000s, really seeing how what we're observing in the laboratory was all kind of coming -- was already very much present in the 1700s, and that their way of thinking about the world helped us make sense of these experiments that we were running.

 

Timothy Sandefur:  Now, I'll tell you why I was so drawn to your book and why I was so excited to have an opportunity to talk with you is that when we talk about property, we so often, especially we lawyers, we get caught up in talking about legal precedence, or those of an economic bent get caught up in talking about gains from trade and opportunity cost. Sometimes it gets very jargony and technical. Instead, it looks to me, from your book, like you are really getting more into the anthropology and the psychology and, I want to say, the behavioral psychology or the evolutionary psychology of property that is more fundamental even than the sort of thing that lawyers and political philosophers talk about.

 

Prof. Bart J. Wilson:  Yeah, what really crystalized the project for me was when I posed the question to myself of what it is and why is it that humans have property. To think about it, what is it that's universal about it and what is it that's not universal about property?

 

      For me to do that, I needed to think through what is common to all human beings and how property might vary from groups of people. That very much led me to needing to read up on anthropology and in primatology in particular. I had been working with a primatologist at Georgia State, Sarah Brosnan, for quite some time so I got into the literature that way, through her.

 

Timothy Sandefur:  Now, of course, other animals do have something like property. They have possessiveness. They try and divide themselves, separate themselves, from the world with a rudimentary concept of mine and not mine. But you say that human beings go a step further than that.

 

Prof. Bart J. Wilson:  Yeah, all animals have acquisitiveness in the sense that we all need food, and we all need mates in order to reproduce, and we all need, many of us, many animals, need tools in order to acquire these other things in the world.

 

      Acquisitiveness, yes, is the common feature, but I want to make a distinction of how we actually perceive the world and that that's very different than, say, our dogs or chimpanzees and scrub jays or any other kind of animal.

 

It's not just in the wanting to acquire something and to keep it from other animal trying to dispossess us of it; that there's something more going on in our minds when we acquire something and, then, how we settle the rules in order for deciding who gets to have that stuff.

 

Timothy Sandefur:  And you use this term -- when you talk about that in the book, you use this phrase that I found very striking, and that is that we "pour ourselves into property." Pour as in P-O-U-R like pouring a glass of milk or something. You say that we "pour ourselves into property." What do you mean by that?

 

Prof. Bart J. Wilson:  I would argue that's not -- the pre-human parts of that that we might share with chimpanzees is there, but what's the distinction with pouring into. Great question. Part of my argument is that property comes through the use of tools. Many animals use tools.

 

Chimpanzees, in particularly, a close cousin. They take a big stick and they'll poke it in a termite hill to feel where that open chamber is. Termites don't make that easy. You kind of have to prod around. But they can feel through to the end of the tip of that club when they've felt that open chamber. They can make that deduction.

 

The great thing, kind of the brilliance of it, they pull out that big club and they'll stick in the little tool, the little thin reed, in order to have the termites come out one by one so they don't swarm them and then pick them off and eat them. That kind of feeling through a tool, chimpanzees can do that.

 

What I argue humans do is that we put ourselves into that thing. Our minds have the abstract power to feel through the tool and so -- take this example I got from Michael Polanyi's book, Personal Knowledge. If you take a cane, close your eyes, and you knock around, you're walking through, you feel the leg of the table through the cane. The actual sensations are the cane in the palm of your hand, but your mind has reorganized that because your goal is feeling out what's at the end of that. So, your mind reorganizes that as if you're feeling the tip of the cane when you're not.

 

      That's the first step. The rudiments of that seem to be quite clear also in chimpanzees. Then, I think, the trick is what happens when we put that down? When a chimpanzee puts down the stick, they move on and another one picks it up, so whatever. But when we have a tool that we've made and we've created and we put that thing down, we tend to act as if we're still in it. That's what I mean by that we abstracted to the thing to have this other concept, which I call mine, in there. That the mine has become part of the very thing itself.

 

Timothy Sandefur:  In reading the section of your book on this, it reminded me of a passage in another book by a philosopher I admire a lot named Jacob Bernofsky. He wrote a long book called The Ascent of Man. It's sort of a history of science and the history of human evolution.

 

There's this one part where he's in a cave and he's talking about cave paintings that cavemen drew, and he says that he thinks this is kind of the moment when we became human because it was the moment when we became capable of symbolic abstraction. That enabled us to imagine the future.

 

      You paint on the side of the cave; you paint what tomorrow's hunt is going to look like as a way of imagining what it's going to be like tomorrow as a way of addressing your fears about tomorrow's hunt or something.

 

      His argument is that what's distinct about the human mind is this ability to project things and use symbols to project them. Is that a similar line of what you have in mind?

 

Prof. Bart J. Wilson:  Yes. In fact, I came to that through the neuroanthropologist Terrence Deacon, who makes that argument, and the linguist Derek Bickerton; that symbolic thought is this ability to think outside the here and now. That is the feature that really distinguishes us from the rest of the animal kingdom.

 

      That's not a minor trick. It's, I think, important to my argument and important to understanding of all the great things that human beings can do. That is, to be able to think outside the here and now. Your example is exactly talking about outside the here and now—the hunt.

 

      Derek Bickerton argues that this process probably got set in place maybe two million years ago when we start to see this change in the archeological record where the homonyms were getting to these bones and scavenging them after the big cats. There were like six genera of these things in the Savannah. You see them breaking the bones open to get the marrow inside.

 

      Then, it switches.

 

Timothy Sandefur:  I'm imaging that opening scene in 2001 with the apes breaking the --

 

Prof. Bart J. Wilson:  Yeah, yeah. There's something really interesting that it switches and it seems like the homonyms are getting to these things, to these carcasses, before the cats. Now, these homonyms don't have claws. They don't have the same fangs. So that means there's something -- there's coordination going on there for them all to harvest this big hunk of food out there.

 

      Bickerton makes the case that now to coordinate—going over there versus over there—that could be the pressure that would get those first concepts off the ground that would get you out of the here and now. To think like -- and we had to coordinate. "We got to go that way. I've seen a dead carcass over there. Let's coordinate on moving over there." And, then, also to do that around this big carcass to keep away the predators.

 

      Once those first concepts get off the ground, in a sense, or released from the here and now, then all these other things become possible.

 

      My argument is that sometime, 70,000 to 100,000 years ago, kind of a speculation, when you see these great symbolic powers like you were mentioning with cave paintings and stuff like that come into being. This concept of mine is one of those abstract concepts that is there, that stands outside the here and now, and then, we can use that to organize ourselves in our relationships with each other involving things.

 

Timothy Sandefur:  It does seem like there is a distinctly human capacity, and it particularly comes about in children at a fairly early age, when we really start to imagine and project mental states onto other people and things. We have plush animals when we're little children, teddy bears, that we give personalities to, and we imagine that they are distinct things that can think on their own and have a personality that's separate from my own personality when I imagine it.

 

      That seems to be a very notable distinction between us and the other animals, and you see that as being part of this process of owning things or, as you put it, putting mine into things?

 

Prof. Bart J. Wilson:  Well, you're right. That's part of the story, of putting myself into a thing. But in order for that system to work, I also have to reciprocally recognize that other things are yours.

 

      That involves understanding their minds and that we are jointly attending to this idea that these things are mine and those things are yours and other people are saying those things are yours and these things are mine.

 

      So, yes, being able to understand that we are jointly attending to these things is a key part of how I think property works, and also that is just not there in any other primates. Michael Tomasello makes the case that that joint attention is not really there in chimpanzees.

 

We can think in terms of I and a bunch of Is all going out at the same time, but we think in we. When we are both thinking about a certain thing and I call it mine and you recognize that as—they use the concept yours to say that's mine—that those two things have to go together, and we have to have our minds on the same page in order to do that. That's a major trick in the animal kingdom that you don't see elsewhere.

 

Timothy Sandefur:  Yeah, and you say that this is a very unique feature of human beings is that we are capable of recognizing that there are ways, improper ways to acquire things. That there is wrong ways to gain objects and that we are capable of recognizing when something -- I might desire it, but it doesn't belong to me.

 

Prof. Bart J. Wilson:  Yes. The other part of the -- the other key abstract concept is "not." When we teach kids when they can, how they can acquire things, it's often through the word "no." They pick it up, they go do something. "No." Kids go in the grocery store, I think, it's kind of one of those universal rites of passage. You walk through, you see all this great stuff all over the place and you just want to grab it and take it. What do we hear? We hear, "No."

 

      We have to be taught that things just lying around aren't ours to pick up and discover.

 

Timothy Sandefur:  What would you say are the grounds on which we learn not to acquire? What are the bases on which we make the conclusion that is improper to acquire something in a certain way?

 

Prof. Bart J. Wilson:  That rests on accepting parents and guardians as our mentors and that they pass on that authority. They have that authority to tell us and guide us, and we accept that from them as our mentors. Then, we gradually learn what the community standards are for claiming things as mine and yours.

 

Timothy Sandefur:  Do you think that it's just community standards? Are there community standards that might be generally accepted but are nevertheless wrong?

 

Prof. Bart J. Wilson:  Do you have an example in mind?

 

Timothy Sandefur:  Well, I had one -- let's say two. The first one is, I was reminded -- at the same time that I was reading your book, I was rereading the old classic libertarian book The Discovery of Freedom by Rose Wilder Lane. Lane was the daughter of Laura Ingalls Wilder and ghost wrote the Little House on the Prairie books, but she was also a really prominent anti-New Deal writer.

 

She was one of the founding mothers of libertarian political philosophy as we know it. She had traveled a lot in the Balkans. In fact, she fell in love with the Balkans, and she wanted to move there for some time. Even bought a house there. Ended up failing because of the Great Depression.

 

      She has a passage in her book where she talks about this incident where she was traveling with some tribesmen and came across a scene where these tribesmen were trying to force this widow out of her house. She was a member of the tribe. She had lived in this house all her life with her husband. Her husband had now died and she wanted to live in this house still. The tribesmen were taking it away from her because they said there was no reason for her to have a house that had three or four rooms in it when she was only one person and only needed one room.

 

      As Lane describes it, this widow argued with the tribal leaders for a great deal of time saying, "I built this house myself. My husband and I built this with our own bare hands. It belongs to us. It's wrong for you to take it."

 

      What I'm puzzled about, using this example, is how -- would you say that there is any ground, any legitimate argument, that the widow could make that would substantiate her claim to the house?

 

Prof. Bart J. Wilson:  This idea of you creating something and then being able to call it mine, I think that's probably very universal, and in tools. I think that's the general form of how property works is that if we create something, we make a tool in the world—in this case, a home is a tool for shelter—that that is a universal phenomenon. That scene is that you're describing, that story, is one where that is at odds with whatever the community is also setting the standards for.

 

      I just think there's something very instinctual about it, and that's why I would say that it seems to appear that we're putting ourselves in our things that we create. That we would get that -- we get quite riled up, quite offended, if somebody tries to take something within our grasp. Things, particularly, that we create them.

 

      That's a very ancient idea, and I would argue it goes back to where property started. I think that sounds like what she's channeling. The conflict is the other people in the community don't seem to agree with her on that, so now we get to the crux of how do we settle that dispute.

 

Timothy Sandefur:  Right. I think that's where I had some qualms about the book because it seems like the argument comes up to this positive descriptive tone of saying well, this is what would happen is there would be a conflict. But when we take that next step and say what are the merits of each side's argument in this dispute, how does this anthropological/experimental economics approach answer that question?

 

Prof. Bart J. Wilson:  Well, but all of that relies on all these other customs of how disputes are handled and settled. I think that's beyond my project, in a sense, of integrating those two things. I think it sets a new research program to think about those things.

 

      My interest in writing the book was to get people to be concerned about all these ancient things; the way we think about it. That has to be accounted for when we talk about property as opposed to thinking about it only in the modern democratic concepts of rights, which seem to me to be not clearly grounded i n these very basic human ways of thinking about property.

 

Timothy Sandefur:  Yeah, and you say right at the beginning of the book, you say, "I'm going to use the term 'property' and I'm not using the term 'property rights.'" Maybe you could elaborate a little bit on why that is. Why is it that you think that using the term "property rights" might be a little misleading?

 

Prof. Bart J. Wilson:  I see property rights as what you need -- what arises at the level of a polity, dealing with a bunch of disparate groups and communities that are all linked together in a way. I'm not dismissing that that's not important. In fact, that's exactly how polity’s going to make it work. I'm arguing that how that system of property rights would work at that level is dependent upon varying community standards and then, also, how the individual interacts with the community.

 

      That's the part that I want to add into the discussion. Also, when we talk about property rights, it tends to have a very top-down language to it. That they get imposed on the people. I think the way property started in human beings and how it grows is very much going bi-directional. It's my mind to the community and the community affecting my mind. If you're going to put all these communities next to each other and then have that connecting with some kind of political system of coordinating and settling disputes, that that edifice rests on this very basic level of the individual interacting with their community.

 

      Also, I think the word rights is used many different ways. I think economists use the word property right very differently than lawyers. Economists even start adding other modifiers to it to call them economic property rights versus legal property rights. I'm just not clear exactly what those things mean. I'm trying to get at a real basic level and build up.

 

      I would think of my book as preceding a discussion of what property rights are --

 

Timothy Sandefur:  Yeah, right. Because it would beg the question for you to start with property rights and then talk about the cave man and so forth.

 

Prof. Bart J. Wilson:  Yes. Exactly.

 

Timothy Sandefur:  Yeah. Well, this comes to mind, of course, because—and this is the second example—is what about slavery? There have to be grounds on which we can say that there are certain forms of property, so-called, that are illegitimate at all times and in all places. You mention slavery briefly in the book and you say this that it's not a legitimate form of property.

 

But I don't see how we can make that claim if the basis for property justification is entirely tribal, is entirely collective. If it's just whatever our society says is recognized as property is ipso facto property, then on what grounds can we condemn something like slavery?

 

Prof. Bart J. Wilson:  I think the key part to understanding that is that if you think of property as a custom, a way a community works, then it has to fit into all the other customs of how the community works. If our notion and customs of how we treat other human beings is changing, then how the custom of property interacts with that has to change too.

 

      Think of property as an abstract way of I can say about something, "This is mine." Other people can know that what I say is true, and no one else can say, "This thing is mine." If that is the core of property, then what we apply it to can change and evolve over time.

 

      We've come to appreciate human beings, give them liberty, dignity, and equality that we no longer consider those people to be something that you can call mine. That allows property to evolve as the community evolves.

 

How we would get rid of slavery as an illegitimate form; that's like a different question about how is it that liberty, dignity of individuals changes in a society? That's beyond the scope of what I wanted to accomplish, but I think it's important to integrate the custom of property with the customs of how we treat people in general.

 

Timothy Sandefur:  So it's funny you mention this, because just this morning, I was working on a paper on a different subject entirely, and I pulled down -- I have in my hand a copy of G. Edward White's book, Law in American History: Volume 1. He's talking about colonial New England. He has this very interesting example.

 

He refers to a -- he says, "A 1651 case in the colonial Court of Connecticut, Uncas, the Sachem of the Mohegan Tribe, which is a member of the Algonquian family of tribes, appeared in that court to represent an Indian from Long Island who had bought a canoe from a Connecticut settler. The settler had stolen that canoe from another Mohegan.

 

After buying the canoe, the Long Island Indian had then returned it to its rightful owner, and Uncas asked the court to compel the settler to reimburse the Long Island Indian for the fee that he had paid for the canoe. The court agreed, ordering the settler to pay the Long Island Indian nine shillings."

 

      What's really interesting to me about that is there you have a legal dispute where you have basically three cultures involved. You have the European settlers, and then you have two tribes: the Long Island Tribe and the Mohegan Tribe. Nevertheless, they are able to come to a resolution that—I guess you and I could at least say that it accords with our intuitive notions of justice. Yet, they are not trapped within their cultures. They resolved this dispute across cultural boundaries.

 

      It seems to me that suggests that there has to be something about property that is deeper than our mere cultural deliberations. Does that make sense?

 

Prof. Bart J. Wilson:  That makes great sense. I would like to get the name of that author again and read that. That's fantastic. It's Law in American History?

 

Timothy Sandefur:  Yes. G. Edward White, who incidentally, is probably my favorite legal historian. This is the first volume of a series of books that he's put out—three volumes now, I think—on law in American history.

 

      This first chapter, actually, is full of stories of this sort. It's really an interesting thing to see how people can resolve these debates not by appealing to their own cultural traditions of what is right and wrong but to something deeper and more universally human, which I think is something in the line of what you're trying to argue here.

 

Prof. Bart J. Wilson:  Yes. What I would argue is common to all three of those societies. That they have this concept of mine, and that they understand when somebody says, "This is mine." They understand how that moves around. Also, then, what are the generally accepted ways that can work or can't work? When I'm using can in that way, I mean that in the socially acceptable, socially conforming ways of acting.

 

      As an economist, the example could be similar. How is it that two groups of people who can't speak even the same language can still exchange things? You'll go through these elaborate rituals of laying things on the beach, going back to your ship, and then moving things around without even knowing how to converse with them. We understand their minds, they understand our minds, and at the basic core that they understand mine and yours. And that is what's behind that process to make it work.

 

Timothy Sandefur:  This is where I, then, run into the question that I asked earlier, which is, to put it a different way -- for example, you used a couple examples of the experiments that you've run in the laboratory and testing how students reacted to certain situations where they're trying to accumulate property and somebody figures out a way that may not be technically cheating but is still kind of gaming the system and they retaliate against him.

 

You conclude with this passage where you say that the rule arises out of the practice. You say -- I found it somewhere. Here, on page 91, you say, "Look, what is right is not derived from the rule, but let the rule arise from our knowledge of what is right." But doesn't that commit the Panglossian fallacy that whatever rule happens to arise is just right because it happens to arise? And if that's the case, how is slavery not justified?

 

Prof. Prof. Bart J. Wilson:  Well, I think for me, a rule is a way of settling -- is the dispute that needs to be -- go back to the experiment to kind of ground this. The reason why there are great places to understand these ideas is you see them emerge from the beginning. These are people thrown into a virtual world. Think of them being beamed onto a planet and all of a sudden now they got to make sense of this.

 

      So, we can see the things shake out. What they bring with them are these general abstract ideas of what harm is—of taking something that was in my grasp and moving it into your grasp—but they have to live in the very specific world of these particular things—you and me and how they work—and we have to come up with what's the rule that will solve this dispute? You think that this is the way the rule should work, and I think a way the rule should work, and now what's the rule that's going to settle those -- put those expectations in line?

 

      That's what I mean. What is right are these abstract ways about what it means to harm people, treat people with dignity, and things like that. Then, we have the specific situation of this particular dispute and now we got to come up with what's the rule we should have in mind? These can be good faith disagreements, which they are in the case of my experiments because they got to figure it out on their own. They don't have to necessarily have to be people with nefarious plans out there.

 

      Let me give you an example, and this is very much influenced by that particular experiment, and it's one that I use regularly in my law school classes, and that's Bob Alexon's work on whaling norms. Everyone knows that if somebody's working on a whale and you go in there and try to take it away from them, that's going to create conflict.

 

      But what's the specific rule for dealing with each type of whale might change because the situation of how you go about whaling. White whales off the north Atlantic versus sperm whales off the North American coast are different. The rule has to come out of the experience. With white whales, as long as my harpoon's in the whale and I attach my boat, no one goes after it. But that's great because white whales don't fight and they're the right whale to hunt because they don't sink when they die.

 

      But that rule doesn't work when you work with sperm whales, and that's what American whalers learned. They gradually switched from that rule to one where there's a -- iron holds the whale. As long as the harpoon's in the whale and you're in pursuit of it, you can call that whale yours.

 

      The rule comes out of those specific circumstances in the world of hunting sperm whales versus hunting white whales, but they had a sense of what's already right, which is not damaging the whale and both of them trying to cut into it and fighting over it.

 

      So that's what I mean why the rule has to come out of all these other notions of what we consider to be right.

 

      In the case of slavery, then, if our notions of how we treat people with dignity and liberty and equality is changing, then the rules by which you can claim things as mine are going to them and they'll no longer make it legitimate for you to say, "This person is mine."

 

Timothy Sandefur:  Let's see. Nick, do we have any calls -- any questions from folks who might be listening in?

 

Nick Marr:  For the moment right now, Tim, we don't have any audience questions.

 

Timothy Sandefur:  Excellent. Well, I have a ton more questions myself, so we can keep pursuing this, and then if anybody has any as we go forward, then that would be great.

 

      To get back to this question about how these rules evolve. I think the reason why this caused me to pause is because I come to this myself with a more Aristotelian idea of how morality operates, and that sort of conflicts with the Empiricist or Smithian approach, I think, that you're taking where you're saying that these rules evolve over time and that's just the way those rules are.

 

      What I'm looking for is how do we then look at the rule and say, "This may be the rule, and it may be universally accepted, but it's immoral or it's wrong." Do you think there is room for that step, in your view?

 

Prof. Bart J. Wilson:  Yeah, I'm very much a Smithian moral philosopher kind of person. My prior book was integrating experimental economics and Adam Smith's ideas in The Theory of Moral Sentiments. I don't know Aristotle's theory of morality that well in order to get at the debate between those two, but what I see different -- where I see the Scottish Enlightenment Project is a product of allowing it to evolve over time. That there is a sense of this is slowly changing and that the rules develop based upon our relationships and what the problem is at the time.

 

      There's a reason why the rules of justice are very precise and accurate whereas the rules of beneficence are very loose, vague, and indeterminate. That means that the content of those things is going to change differently. The rules of beneficence are going to probably have a lot of degrees of freedom and change a lot because how you're good to other people can evolve very easily. But the rules of justice, murder, theft, breaking of contract, those kinds of things, those tend to be more precise and yet they still have an element to evolve too. Because, in the Smithian sense, they rest on sentiments.

 

      For Smith, resentment is this core sentiment that gets the rules of justice off the ground. Smith has this great example where he says, "Well, why is it that we punish murder so much more than theft and theft so much more than breach of contract?" Because our sympathy with the one harmed is so much greater with murder and less so with theft. In breach of contract, they're not even harmed in the sense of they just had their future expectations seem to be disappointed.

 

      Smith's theory is that, look, the resentment here is what's driving how much we punish. I think if that theory then allows why we can move to a place where we no longer accept capital punishment. That we still have a ranking between murder and theft, but the actual punishments that we meat out are tied with those core resentments, and we don't have the same resentments with murder that we're willing to execute people for it.

 

      That's a long way of saying that I think that the Smithian way allows things to evolve. If you start with these very abstract forms of how morality works and ideals, that that seems to be straightjacketing the human career.

 

Timothy Sandefur:  Well, and at the same time, your argument isn't for taking the jacket off entirely. What I mean by that is that you do offer a grounding, in loose terms at least, that you could call natural. Obviously, it's rooted in human nature and human evolutionary history that kind of cabins where our notions of justice or of property can and cannot go. There is a loose sense in which you're saying that this is a natural law or a natural rights kind of an argument. It's just not necessarily as tightly ordered as we might imagine such an argument to be.

 

Prof. Bart J. Wilson:  I think that's a great way to describe it, yes.

 

Nick Marr:  Hey, this is Nick. We've got a few questions on the line.

 

Caller 1:  Hi. Thank you, gentlemen, very much for an interesting discussion. I apologize I came in a little bit late, so I hope I'm not asking a question that has been addressed. From what I'm listening, the basic fundamental question is what is the source of property? I've listened to the different philosophies, but isn't this -- my question primarily, isn't this basically an origin of source of law? Who is the source of law? Is it man or is it God, in a sense?

 

      If we go with the law of nature, and if nature's God, a specific legal term of art that meant the law of the nature, the being of the thing, and the law of nature is God was actually special revelation—a term used for the Bible—that property ownership would be obvious because if there's a command to not steal, you can't -- it logically presupposes property ownership.

 

      But if we begin with man, we're stuck on this trajectory of "Well, which man determines the origin of what this law is?" And we'll be forever debating this. At some point, do we have to not choose what is going to be the ultimate buck stops here origin of law to begin with to even resolve these kinds of questions?

 

      I hope that was a question. I can be muted just to hear the answer. Thank you, gentlemen.

 

Prof. Bart J. Wilson:  Well, let's start with the easy ones. Just kidding. I think when I think of my project is that somehow, however you want to organize how law works, it has to work within this species. How is it that our mind works with this concept of property, in my case, that I am interested in? How is it the mind works with law would be a more generic question moving off of this project.

 

      That's a big question. I think part of the way to parse what you're getting at is that it's kind of posed as either or. I don't think that has to be the case. However you want to have it -- the abstract ideas of what you consider to be good and evil and how you interact with people, that can't be taken away from, separated from. It has to work within this particular biological species called homo sapiens.

 

      How do you integrate those two things, I think, is the essence of your question. I think it's important that however you're going to think about it in the abstract sense of what is good behavior, good conduct, and what is bad conduct in law and in property that it has to work with our particular way of the world, the way it works.

 

      I think that those, as Tim mentioned earlier, I'm trying to make the case that there is a standard human way of thinking about property in things. That we put ourselves in the thing. That we think of where the thing goes, so goes our property in it, and that that is abstract core of it.

 

      Now, how all of the other cultural things that we add to that to decide what's good and bad conduct involving things, that's a big open process that -- it's wide open to be explored.

 

Timothy Sandefur:  I actually got a follow up for this because, on one hand, I think the easy answer is well, what you're inquiring into is not necessarily whether God created these rules of property but rather how he did so, assuming he did so. You could ask the same kind of question of, for instance, a medical doctor about medicine. Well, didn't God create the human body in this way? And the doctor would answer, "Well, yeah, sure, okay. I accept that, but what I'm really addressing is how the medicine works given that that's the case."

 

      The existence or nonexistence of God or his commands isn't directly relevant to what you're getting at in your book. But on the other hand, I think part of the question was that property has to arise from something deeper than human choice if, for no other reason, that if it were just a matter of human choice, then the authority figure who's parceling out individual rights is stuck with sort of an infinite regress problem.

 

      If I'm the king and I'm deciding who gets rights to what and what kind of rights every person gets, then I will be just forever occupied figuring out whether you have a right to wear a hat on Tuesday or whether you have a right to wear a hat on Wednesday or whether you have a right to wear a red hat instead of a blue hat. Then, that's all you ever do and you never get finished.

 

      So, there's this infinite regress problem that makes it really impossible to view property as something that's a top-down ordered system.

 

      I think what you're arguing, then, is very consistent with the idea that property rules have to arise from something deeper than simple human choice.

 

Prof. Bart J. Wilson:  I think an important part of it is to embed it in a community of people who are all moving around and interacting with each other and every now and then they're going to bump into each other.

 

Timothy Sandefur:  Yeah, right. It’s a world of limited resources.

 

Prof. Bart J. Wilson:  Right. And we're setting up the rules by which we're going to try to minimize those bumping into each other. The rules of property are one of those kind of things that come out of that to maintain it.

 

      I would argue part of the process -- we like think about -- going back to this individual right, individual choice. I think this is a very economic way of thinking about anything, but what Adam Smith has got me thinking and out of that is to put it into a community of people moving around and doing things. They aren't a bunch of Is; they're a bunch of we -- you learn the I through the we.

 

      The we part of property, or the we part of all these setting these rules, is a starting point. There's going to be order coming out of this.

 

      Take a non-moral species. You have all these other animals. You have deer who get into these antler-banging fights, but that's there to settle disputes so they don't actually have to kill each other. There's some order that comes out of those processes so as to keep the community and population of deer from dying out.

 

      I think that's similar to what we're doing, except now we have this whole thing called morality on top of it, with property. We got to have these rules come out of this otherwise the community's not going to be a community anymore.

 

Timothy Sandefur:  Nick, do we have any further questions?

 

Nick Marr:  We do have two more.

 

Caller 2:  Thank you for the presentation. I think assuming that the human being is the only species that is interested in property is a little inaccurate because cats, the domestic cats, have observed humanity, and they actually function this way. They're very advanced.

 

But it brings up an issue of what sets property terms, and I would suggest, in our current culture throughout the world, a very modern idea and that's the domino theory. That there's a set of dominoes and if you knock a domino, you get the up point.

 

      We're going to see this in the application of law in California with Prop 15. There was a group of people that felt that if you knock the domino down of wealthy owners of, say, a shopping center, the next domino that will fall is taxes on the house, the residential portion.

 

      They really did fight tooth and nail to win in a very, very close contest. Part of it did involve differential values. Without that taxation, we can't have better schools. So there is different values. But the key to understanding why they won was the people who did win made the argument of dominos. If this domino of your property right fails, what's next?

 

      I think that's a great way to ask. In looking at how humans relate culturally, they're often fighting over property on borders. Nations do this, and this concept of if you have the upper hand, it also takes place in law and economics as well. I wanted to see if you guys had any comments.

 

Prof. Bart J. Wilson:  Yeah, so power certainly is a part of this of how disputes get settled and what becomes the rule. That's certainly part of the equation.

 

Timothy Sandefur:  See, it reminds me of, and I guess this gets back to part of the tension that I felt in reading the book, and that is Hayek in Law, Legislation and Liberty, he seems to waiver over this problem. It's a real problem for somebody who takes the evolutionary approach to this, which is some things are going to evolve in your process of social evolution that are simply unacceptable; that are intolerable. Not because they conflict with something within the culture but because they are profoundly wrong, period. We can use slavery as our example.

 

      I think Hayek's answer is very unsatisfying because, in Volume 3 of his book, he says, "Well, there's an important role to be played by people who come in and impose a top-down vision of what the world is supposed to look like." Which, of course, is true and completely contradicts everything that he said in the previous two volumes.

 

      I think there's this concern that if we just focus on evolution, we have a sort of naturalistic fallacy or, as I said, Panglossian fallacy, problem where you say, "Well, how is it possible for something to evolve that is nevertheless deeply immoral even if everybody else in the society accepts it?"

 

Prof. Bart J. Wilson:  Humans are messy and humans are fallible. There's no guarantee in these processes that the good and the right will prevail.

 

Timothy Sandefur:  Nick, any other questions?

 

Nick Marr:  Yep, we've got one more. And we're coming up on the hour, so that's perfect. This'll be our last question.

 

Caller 3:  Yes, thanks. Golly, so many fascinating areas. I guess the first -- well, I've got several questions. Pick and choose which ones you want to address, and I'll try to be quick.

 

      First, the idea of mixing one's self with material from the storehouse of nature to create ownership and property. I'd have to dust off my Marx, but I thought that was an idea that actually was present in his thought and was part of his ground for the idea of alienation. I'm curious if that got integrated into your research.

 

      Echoing some of the thoughts that the first caller raised, I'm also curious about to what extent the development this concept of property and ownership can be thought of as a discovery of a truth in the sense that at some point, presumably, human beings discovered mathematics. We didn't invent mathematics, arguably. Rather, we discovered it, and we discovered it as a truth. That sort of seems to be one of the fundamental precepts of the whole common law project to begin with.

 

      Finally, with respect to the analysis of slavery, I think it's something that most everyone would condemn in this day and age, but I think a lot of the analysis has been kind facile, not limiting it to this conversation. But if a society accepts the morality of the draft, for example, for military service, I think there's got to be some nuanced disentanglement of that.

 

      So, I don't know. Whichever of those comments or questions you'd care to react to, I'd be interested in your answer.

 

Prof. Bart J. Wilson:  I want to start with the first one because it's after I completed the book that I realized that might help me understand some of these really modern tensions. I think you hit on one with Marx. I'm working on a project now of taking the basic principles in The Wealth of Nations and breaking them down in a way such that they could be translated into any language.

 

      In doing so, in integrating it -- thinking it through this book, I realized [inaudible 00:53:46] essential tension that Marx is understanding in that if you're the capitalist and you have put yourself into your tools and you've created these things and then you hire the labor and the labor is in there working in there.

 

But we also have this ancient tradition that when I create something, I create tools, that that is mine. We have now got this process in place -- we have two conflicting ideas of mine. That the worker has got the mine in the thing they created but also the capitalist who created the tools and made it possible in order for the worker in order to make something is claiming the thing is mine through a derivative process.

 

      That's at the heart of the issue. Who gets to claim this? I think that this way of thinking about it puts the question mark a little bit deeper to understanding the basic tension that Marx brought to this system of commerce.

 

Timothy Sandefur:  Yeah, and, on top of that, I would—to take the second point that the caller asked, and this makes, I think, a really good concluding point for us, and that is the idea that property is something that is discovered, like mathematics, as opposed to simply invented.

 

      I think that's one of the overriding messages of your book and one that I very much welcome. I, some years ago, in working on my own book on property, I went over the books that had been published so far and very few of them really get into this. A lot of them spend time on history and, of course, the economic consequences of healthy or unhealthy property rights regimes.

 

But the idea that property is a discovery of the natural world, something like fire, that can release these amazing amounts of energy from the material world around us and could be overlooked, conceivably, by a society, much to their detriment. That's an idea that's very profound, and I wish that more law students and political science students would attend to it.

 

Prof. Bart J. Wilson:  Yeah, that's a great summary.

 

Timothy Sandefur:  Well, thank you so much, Professor. I'm really glad that we had this conversation about your book, and I hope people will pick it up and investigate not just what you have to say but the sources that you cite in the book that are very intriguing and offer some real new insights that are -- this is all very philosophical. The lawyers who are, if any lawyers are on the call, they probably were asking where are the discussions of legal precedence and so forth. And you do get into that.

 

I have a ton of questions. I wanted to ask you how intellectual property works in all of this. You talk about cases like Pierson v. Post, so I don't want people to think that there's no law in this book. But it's very important that people have a grounding in what property means in order to address these profound constitutional law questions and tort law questions about private property.

 

Prof. Bart J. Wilson:  Thank you. That is a great way to summarize, and I appreciate the opportunity to talk with you about this. This has been a great fun.

 

Timothy Sandefur:  All right. Talk to you again soon.

 

Prof. Bart J. Wilson:  All right. Thanks.

 

Nick Marr:  Thanks, all. This is Nick. Thank you both for calling in today, and thanks to the audience for calling in and participating, for your great questions. As always, we welcome your feedback by email at [email protected]. As always, check your email and our website for announcements about upcoming teleforum calls. We actually have one coming up here in about an hour, so tune into that. Same number in about one hour. Thank you all for calling in today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.