serve a variety of purposes, for example, reducing obvious signals of class difference in the schoolroom. But one idea may be that uniforms reduce personal distractions, and help children to focus on common goals of learning. In short, insofar as property encourages people to define and develop themselves as individuals, the range of choices normally associated with individual property may be out of place where some common project takes precedence. For those kinds of projects, the task may be to reduce the importance of individualized personal property, and to constrain the choices that property usually permits.

Some have asserted that this kind of thinking was a motivation for the limitations on private property in the old Soviet Union, particularly in the days of Stalin. Supposedly the Stalinist idea was to curtail private ownership as a part of an effort to create the ‘new Soviet man’, the person who would not be distracted by private concerns but who would rather be devoted to the well-being of the state as a whole.29 Utopian communities more generally have often curtailed private property ownership.30 Here too the thought is that common projects should take precedence over individual ones, and that private property threatens to introduce attitudes of individualism that threaten the communal well-being.

Richard Pipes, a respected historian of Soviet Russia, has argued that these constraints on private property have not worked well for most people.31 (Indeed, Pipes became so soured on the idea that he wrote an entire book in praise of private property.)32 Pipes regards the Soviet experience as a warning about the psychological evils that may fester when people are not allowed to have or control their own property: they suffer from lassitude, apathy, cynicism, hopelessness. Economic malaise follows this spiritual malaise, of course. In short, Bentham was right after all.

In spite of Pipes’s warning, however, many have experienced a kind of euphoria in giving up property, at least for some periods of time. Severe crises in particular can bring on orgies of sharing that would seem to have very little to do with the calculations of risk or insurance. Rebecca Solnit has published a book recounting a number of these experiences, interestingly titled A Paradise Built in Hell.33 One of her early chapters concerns the reaction of San Francisco residents to the 1906 earthquake. Merchants opened their stores, simply giving away everything to all comers, and they were only among the more visible of the persons who gave away whatever they had to fellow survivors.34 No doubt these experiences of joyous altruism cannot last indefinitely, but while they do, they evidently create indelible memories and great nostalgia among those who take part in them. By contrast, the psychological pleasures and payoffs of property are the stuff of more prosaic and ordinary circumstances.

2. The Outside Perspective

So far, I have been discussing the psychology of property from what I have called the inside perspective, that is, the perspective of the property holder and the

psychological states that have been attributed to ownership. At this point I want to go to the other side, and to consider the psychology of property from the outside point of view; that is to say, from the perspective of the one who takes note of the property of others.

So how does it feel to be one who is confronted with the property of others? Certainly there are many literary and folk-tale accounts of the feelings of those who observe the belongings of others. Many of these accounts paint a rather miserable or gloomy picture of the mental states at issue: in the case of the poverty-stricken, wistful noses pressed against shop windows; in the case of others who may or may not have belongings of their own (but not exactly what they want), obsequiousness and scheming, covetousness, jealousy, rage, outrage. On the other hand, some stories depict more attractive sensibilities—although perhaps they are more boring because they are more common—like honour in the face of temptation, or disgust with thievery.

As opposed to literature’s not-infrequent accounts of the sensibilities of characters who observe the property of others, however, legal scholarship to date has not shown much interest in these psychological states. But a few straws in the wind nevertheless bear on the topic.

2.1. The picture from in rem

In legal scholarship, one such straw about the outside perspective derives from the work of Henry Smith and Thomas Merrill and their discussion of the ‘in rem’ character of property, a discussion that builds on the work of British philosopher James Penner.35 ‘In rem’ is a Latin phrase denoting a kind of legal procedure, in which the action is formally directed against a thing rather than against a particular person. Property claims are often said to be in rem, particularly in older treatises and texts. For example, in admiralty law, one ‘libels’ a vessel, an in rem action by which one claims ownership to it against all other potential claimants. To say that the in rem action is against the thing itself, rather than against other persons, is thus something of a fiction, but what it means is that property rights are good against every possible claimant—‘the world’—as opposed to rights like those embodied in a contract. The latter are ‘in personam’, and only binding against particular individuals, i.e. the parties to the contract.

The psychological question embedded in all this Latin is this: if property rights are rights against the world at large, how do people out there in the world think about the property rights that are ‘good against’ them? This is where Penner’s work gives us a beginning point. Penner uses the very down-to-earth example of a person strolling through a parking lot (‘car park’ in Britain), to illustrate what most of us expect from the non-owner in an in rem world.36 So, you take this stroll, and you may or may not have a car of your own in the lot, but you know nothing about who owns all these other automobiles. The only thing you know about them is that

35Merrill and Smith 2000; Merrill and Smith 2001b; Penner 1997.

36Penner 1997, 75–6. Penner’s example is elaborated in Merrill and Smith 2012, 17–20.

whoever owns them, you don’t. This knowledge gives you the minimal duty to keep off, a duty that applies to all the autos in the lot except the one (if any) that you do own.

The first point, then, is that in the role of non-owner, the observer knows that the observed things belong to someone else—making the non-owner a kind of audience for the rights of others.37 A second point suggested by Penner’s stroller is that for the most part, even if the metaphoric stroller owns a car in the lot, she is completely surrounded by the ownership claims of others—like most of us, afloat, as it were, in a small boat of her own property in an ocean of other people’s property. Still, neither Penner nor Merrill and Smith give us much more information about how the non-owning stroller processes any information about her own state of non-ownership, and in particular, how she reacts to the knowledge that someone else owns the things that she observes. But there is another straw in the wind about the psychology of the non-owner, coming from law and economics, or rather more specifically, from a branch of game theory.

2.2 Hawks and Doves

In recent years, some scholars have taken to likening property to a ‘Chicken Game’, or sometimes a ‘Hawk/Dove’ game. The main scholar in this line is the Australian political economist Robert Sugden, a very inventive thinker.38 The Chicken game supposedly originated in a crazed contest among teenagers in the 1950s, a variation of which was famously depicted in the 1955 movie, Rebel without a Cause.39 In the classic form of this contest, two teenagers (or groups of teenagers) get into their automobiles at some distance apart, and then drive straight at each other. The first to flinch and to steer away is a Chicken, obviously the loser. If both flinch, both are chickens, but neither gets to lord it over the other. If neither flinches, of course, they are very likely to kill each other.

Considered as a matter of joint maximization, the best outcome of the Chicken game is for one contestant to flinch and the other not to do so. The shares are not equally distributed, to be sure, but at least one gets to play the hero, and neither gets killed.

The outcome analysis is the same under the very similar but slightly differently named game of Hawk/Dove, a set of strategies originally described by students of animal behaviour.40 Like Chicken, Hawk/Dove describes a game in which the best outcome is for one player to defer while the other gets the prize: one plays hawk, the other dove. If both defer, i.e. dove/dove, the prize is split, or it may simply go to waste (more on this momentarily). If both claim the prize, they get into a fight.

37For the role of audience in property, see Rose 1985, 78–80; Smith 2003, 1117.

38Sugden 1986, 89–91; see also Zerbe and Anderson 2001, 133–4 (analysing property as Chicken/ Hawk game).

39Ray 1955. In the movie variation, the contestants raced stolen cars toward a cliff. The first to jump out lost, as the ‘chicken’.

40Krier 2009, 152, noting that the game is usually attributed to biologist Maynard Smith 1982 as well as Smith’s earlier work.