Academic journal article The William and Mary Bill of Rights Journal

Rose's Human Nature of Property/response

Academic journal article The William and Mary Bill of Rights Journal

Rose's Human Nature of Property/response

Article excerpt

Many social theories claim to have the human being at their center. That has been more a matter of theory than practice in many of those theories. But in the case of Carol Rose's scholarship on property it could not be more true. In many of her works, Carol develops sophisticated theories about property by focusing in on characters. While they are sometimes humorous and colorful, the characters capture something important about human nature, and Carol, like an older tradition that we could learn a lot from, explores property through the lens of human nature. In it she finds many twists and turns. I will focus on how the characters of the ninny and the scoundrel call for crystals and mud1 - bright line rules and vague standards, yes, but quite a bit more than that. In Carol's view a variety of the tragedy of the commons with crystals and mud leads to endless cycling between crystals and mud.2 At the end I will argue that human nature may also lead to a sort of equilibrium in the law, an equilibrium we could associate with the traditions of law versus equity. But for that to occur we do need some significant degree of moral consensus, upon which we can ground our equitable interventions. This need for moral consensus takes us back to Carol's insights about human nature and to her humanistic bourgeois view of property based on narrative.

Carol points out that famous accounts of property from Locke and Blackstone to Demsetz all involve a view - or views - of human nature.3 All of them ground a picture of property in self-interest, possible enlightened self-interest, but then import covertly a more cooperative or even altruistic aspect of people when it comes time to set up the property system.4 A system of private property requires collective action, and a world of narrowly rational utility maximizers - a character Carol once called "RUM" with, I think, the British meaning of "odd" in mind5 - would have a difficult time getting the system off the ground.

At the same time, almost uniquely among property theorists, Carol is open to elements of the doux commerce theory: that commerce is a sociable institution and can be expected to cultivate virtues (in addition to the now more familiar vices).6 Indeed, Carol notes that gifts and commercial exchanges partake of each other and are not so easy to separate.7 Overall, Carol is one of the few theorists these days to see how humane and lovely the mundane and the bourgeois can be.

These elements feature prominently in Carol's work on crystals and mud, which I'd like to focus on here. In drawing this distinction, Carol has made a characteristically deep insight into the nature of the legal system. Crystals and mud roughly - but only roughly - track rules versus standards, but potentially imply much more. The law may start out with a crisp rule that gives a clear and sharp boundary between states of the world - is there a contract or isn't there, was there a trespass or wasn't there? But because the results don't always look pretty, there is a temptation - and especially for judges who see matters in all their particularity after they have gone wrong - to start tinkering.8 This takes the formless form of muddying things up, of making exceptions and second-guessing.9 If this happens enough, some actor - a legislator or contracting party - may crisp things up into crystal again and start the process over.10

Later I would like to return to the oscillation that Carol sees as inherent in crystals and mud and offer an alternative that may sometimes occur, but first, notice how far the notion of crystals and mud by itself gets us. The literature is certainly filled with related theories about rules versus standards,1! bright lines and vagueness,12 analyzed through economic and philosophical lenses among others. Rules are more expensive to formulate but cheaper to apply.13 Rules give certainty and standards are vague and uncertain. Some, especially those associated with critical legal studies, see rules as reflecting individualism and domination and standards as embodying community and altruism. …

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