Rose's Human Nature of Property

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Rose's Human Nature of Property

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Title: Rose's Human Nature of Property
Author: Smith, Henry Edward
Citation: Henry E. Smith, Rose's Human Nature of Property, 19 Wm. & Mary Bill of Rts. J. 1047 (2011).
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Abstract: 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.
1 Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577, 577–78, 587
(1988) [hereinafter Rose, Crystals and Mud] (describing the “characters” who muck up
bright line rules to include “ninnies, hard-luck cases, and the occasional scoundrels who take advantage of them”).
2 Id. at 595–604.
3 Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative
Theory, Feminist Theory, 2 YALE J.L. & HUMAN. 37, 38–39 (1990) [hereinafter Rose, Property as Storytelling].
4 Id. at 38–40.
5 Carol M. Rose, “Enough, and as Good” of What?, 81 NW. U. L. REV. 417, 417–22
(1987) (introducing the fictional character “Rational Utility Maximizer,” or “RUM”).
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