Monday, June 07, 2010

Principles of First Title: Merrill, Marx, and Musings on Supplanting First-Possession with Accession

By Ori J. Herstein

The most prevalent theory on how original title should be established (how something unowned by anyone becomes owned by someone) adopts the principle of first-possession. As its name suggests, this principle bestows ownership on the party who is first to establish possession of an unowned resource. In a very interesting and ambitious article Columbia professor Thomas Merrill argues that the principle of accession offers an alternative approach to determining original title. The principle of accession bestows ownership of P (an unowned resource) on x as a function of x’s ownership of Q, Q being the property most prominently connected/related to P. Merrill argues that accession is a ubiquitous background principle in the law of property, shaping numerous legal doctrines. Among his many examples is the common understanding that interest proceeds belong to the owner of the principle on which the interest is paid, that ownership of a newborn animal goes to the owner of the newborn animal’s mother, and that the product of plant life, such as crops, belongs to the owner of the soil the plant grows on.

After espousing the various efficiency virtues of the principle of accession as a principle of original title and explaining accession’s corresponding advantages over the principle of first-possession, Merrill turns to presenting some normative shortcomings of accession. Shortcomings such as ascribing ownership based on status and luck rather than on desert, and having regressive distributive outcomes (making the rich richer). When we should prefer accession to first-possession is, therefore, unclear.

Reading Merrill it occurred to me that in addition to reflecting on the advantages and disadvantages of accession over first-possession in the abstract, it is also worthwhile contemplating the implications of actually exchanging an established first-possession regime with a regime of accession. Implications I imagine may be rather costly in moral as well as economic terms. Here is an example:

In his writing on the laws of the theft of wood, Karl Marx criticizes the 19th century reform outlawing the then long-standing custom entitling peasants to collect twigs and branches that had naturally fallen from trees, even if the peasants were not the owners of the trees or the land. This customary regime assured peasants access to wood, a resource even more crucial then than now (those German winters can be cold). The wood theft reform turned countless ordinary people into thieves and disenfranchised them of their customary privilege to a crucial resource.

How is all this relevant to the costs of shifting from first-possession to accession? Applying modern legal terms to Marx's observations, it seems to me that prior to the reform, ownership of fallen twigs and branches was governed by a principle of first-possession: the branches and twigs belonged to whoever picked them up. The legal reform effected a shift from a de facto first-possession regime of original title to a regime of accession: the fallen twigs and branches were no longer “up for grabs” but belonged exclusively to the landowner as a function of his ownership of the land and the trees from which the twigs and branches fell. The moral costs of this regime shift were, as explained above, grave: over-criminalization (for many the only alternative to stealing was freezing to death); distributive injustice (making the poor poorer); and general harm to numerous aspects of people’s lives (a reasonable Marxist account of these laws is to view them as a tool of political-economy social-engineering: forcing people away from their stable customary, rural, and agrarian life towards an urban, proletarian and capitalist mode of existence); as were, I assume, the economic costs of violently shifting away from a well-established regime (after the promulgation of the wood theft laws 5/6 of all criminal prosecutions in Prussia were related to wood "theft"!).

My sin of anachronism notwithstanding – feudal-based privileges are not really translatable into categories of modern property law – I think employing this historic example to reflect on the principles of accession and first-possession does point to a “need” for supplementing the abstract thinking about the comparative advantages and disadvantages the two principles of original title have over each other, with reflection on the costs and benefits of supplanting one principle for another in actual established legal regimes. In this, I modestly tried to answer Merrill’s call for further theoretical reflection on the somewhat neglected principle of accession.


Sam Rickless said...

Ori, nice post. A few thoughts occur to me. First, how does the accession account explain why I don't own the airspace above my grassy field? Or the field that is next to my field? Or the birds that nest in my field? Or all the water in the river that runs through my field? It strikes me that there is no such thing as an accession account until the "connection/relation" between P and Q is made far more precise. And when it is made precise, I wonder whether what we will end up with is a sort of grab-bag of different relations that have nothing in common. And then the accession theory just looks ad hoc.

On the other hand, the first possession theory needs fine-tuning, if it is to avoid the same sorts of criticisms you level at the accession theory. Even Locke thinks that first possession is not sufficient for property if enough and as good for others is not left. If two apples drop from a tree on an island with only two inhabitants, A and B, A does not acquire a property right in both apples if he happens to be the first to pick them up. He must leave one for B.

The firewood example is complicated, I think. If I rely on the twigs and branches that fall from the trees that sit on the land I own to make it through the winter, then the (unamended) principle of first possession gets it wrong if it says that all the local farmers may help themselves to these twigs. For a consequence of the (unamended) principle of first possession is that I may end up with no firewood at all. On the other hand, it is a *choice* to establish a property system one consequence of which is that it is possible for all the local land to become owned, in such a way as to leave no *common* land for local farmers to use for firewood picking. Such a system is morally unacceptable. But the answer is not, I think, to establish a rule that allows any and all local farmers to help themselves to all the twigs they gather from the land that I own. A better system might be one that reserves some land for all to use in common without allowing the locals to gather twigs on private lands.

Ori Herstein said...

Thanks Sam. There is much to reflect about in your comments. I will try and give my own reactions as well as my guess as to what Merrill would say (on which I am no authority).

Merrill puts considerable emphasis on physical proximity and connectivity, a relation that does appear to cover a fair number of his examples. In terms of land ownership, he points out that newly discovered minerals often belong to the owner of the surface of the land under which they are discovered. Air space is more complicated, yet it may be possible to give a crude proximity-based account of our intuitions about the property-like rights land owners have over the air space above their lands. The higher up you get, the landowner’s rights diminish along with the proximity relation: I have no right to prevent space crafts from hovering hundreds of miles above my land but I do have such a right against a neighbor hovering 12 feet over my house in a hot air balloon. Wild animals that move around and are unattached to any specific parcel (such as most birds) do not seem to form a proximity relation with any other property, while wild animals that are attached to a parcel (e.g., bees and their beehive) are more easily associated with a specific property and are often owned by the owner of their “home” even if they often fly off to other people’s land.

First title under accession may appear puzzling, I agree: why did not Adam and Eve simply own all the earth? After all, under accession the moment they owned something they owned all connected un-owned resources, which was everything. One point in defense of Merrill is that he thinks accession becomes more and more attractive as the environment becomes richer in property rights. He thinks accession is better put to the test in relation to newly formed resources that materialize in an evolved legal environment, where most resources are already owned.

Moreover, Merrill appears to think of the accession-determinative proximity relation not as a purely analytic or natural category but as psychological and social category. In other words, what matters more is what people perceive as proximate. Merrill claims (following observations put forward by Mill) that people tend to associate certain objects with other objects based on physical attributes: such as size (the small belongs to the big) and proximity (P is related to Q more than to Z because P and Q are nearer each other). It seems sensible to claim that when the distance between two objects – such as my house and a space ship - exceeds a certain threshold people cease to associate the objects with each other, even if they remain physically closer to each other than they are to other properties.

At least one reason Merrill emphasis psychology and custom is that a crucial requirement of any mechanism for determining first title is easy identification. Whatever first title turns on – be it possession or ownership of the most prominently connected property – the fact that title has vested in someone must be easily identifiable to all. If a principle of first title fails to meet this requirement, the costs of enforcing its prescriptions would make it impractical (people would not know that title has vested an numerous coordination problems would follow). Merrill believes that accession easily meets this requirement because people – due to psychological tendencies and social convention – easily and similarly identify what is the thing most prominently connected to most any other thing (I can envision chains of sub-ownerships here ranging from the plankton to the shark). One such common psychological tendency is to view things physically connected or proximate as prominently connected. Because people are in some sense “wired” to similarly identify “prominence” with physical connectivity/proximity, Merrill believes that “prominent connection allows us to assign ownership in a way that is easy to understand, is self-applying, and generates very little conflict.”

Ori Herstein said...

What troubles me with this “epistemological shift” is that people’s perception of prominence may be susceptible to molding, and I think the fire wood example bears this out. Today it may seem natural for us to associate the twigs and branches with the land and its owner, but obviously this was not always the case. The shift in people’s “natural” psychological/social inclinations about wood ownership was forced, so that our current intuitions are a silent tomb for a great evil. (Continued below)

I do agree that physical proximity/connectivity – as a psychological category – may not always suffice. For example, if a meteorite (unowned resource) falls from the sky right into my backpack, do I own the meteorite even if I was hiking on your land at the time? I think that in such a case we will need a richer account of what is an accession-based property determining relation than mere proximity, since relying on our intuitions would not suffice. I do think, however, that in many cases people’s intuitions as to which property is most naturally associated with a new unowned resource are much clearer. This “epistemological shift” in the meaning of “prominence” may not elucidate the category of “prominent connectivity” to the degree that Sam would like, but it may show that the category mostly works well. In any case, this is the best defense of accession & Merrill I managed to mount in short order.

I full heartedly agree with the Locke proviso point. I think even Nozick has something of a proviso built into his account of fist possession.

As for the better firewood regime, Sam may be right about the mixed private-commons regime. I guess the issue would boil down to the realities of 19th century Germany. For example, I do not think that the proviso would be triggered in that case, because I doubt the German aristocrats relied on dry branches and twigs all that much. Also, I suspect that at that time there were many more woods and many fewer people in Germany, so there was enough wood to go around. I do think, however, that a gradual shift from the customary regime to the modern private property based regime may have been preferable, and perhaps Sam’s *commons* approach would have worked – if not as a permanent solution (commons have their own tragedies) – than certainly as a temporary one.



Sam Rickless said...

Dear Ori,

Thanks a bunch for such elucidatory and helpful comments. I should read the Merrill piece, but will share a few more thoughts based on your exposition of it.

The analytic/pragmatic distinction you describe is helpful here. As I see it, the relation of physical proximity is not, at bottom, what makes it the case that A has a property right to X, though it might incline us to treat A as having a property right to X. And this latter fact contributes to a pragmatic case for treating A as having a property right to X, even if A does not (analytically) have a property right to X. And given that the *law* of property is concerned with pragmatic factors, such as enforceability, a case can be made that it is appropriate for the *law* to treat A as having a property right to X even when A does not have such a right, analytically understood.

There are at least two ways to attack the accession theory at this point. One way is to claim that the law should reflect the facts of ownership as determined by analysis. (A Lockean might make this point.) Another is to claim that although pragmatic factors rule, the accession theory focuses on the wrong pragmatic factors. The accession theory focuses on enforceability. This is important, but it may not be the most important pragmatic consideration. I read you as making this sort of point. Fairness in distribution, as well as the overall consequences of the property system, matter more (or at least as much) as enforceability. If this is your point, then I agree with it.

I also agree that our sense of what counts as physically proximate to what can change over time, although I am not sure that this is illustrated by the firewood example. It's not, I think, that people used to think that branches are not physically proximate to the ground they rest on, and it's not that this view changed when molded by different practices. Rather, it used to be thought wrong (regardless of any property-related considerations) to deny to local farmers what they needed when there was plenty to go around and no work on the part of the landowner was required to fulfill these needs.

I am more bothered by the fact that there are numerous potential counterexamples to a physical proximity theory. If it rains on my land and large puddles form after a prolonged drought, do I have a right to the water in the puddles just because it happens to be physically proximate to the land? This seems wrong. If there is a shallow aquifer that is the water source for the whole community, and most of the water in the aquifer just happens to sit just below the surface of my land, that does not make the water mine. (It would be wrong, for example, for me to drain the aquifer and then sell the water to my dehydrated neighbors.) The problems here, as you mention in your original post, concern luck and consequences.


Ori Herstein said...

Yes I agree (I think also Merrill agrees) that accession has various utility or economic advantages yet has some serious distributive disadvantages. Playing the devil’s advocates, I can imagine an economic argument for accession in examples such as your rain/aquifer example: it is more efficient to ascribe the owner of the land with ownership of the aquifer. And, if the thirsty people of the village want the water they may contract to buy it. That way the rain water (a new resource) enters the realm of property efficiently through accession, and is then transferred to those who make the most use of it through contract. I cannot believe that I am making a law & Eco / libertarian argument such as this, but there we are.

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