Boyer proposes a computational model that derives intuitions about ownership from two sets of cognitive systems, one having to do with competitive acquisition of resources and the other concerned with co-operation with respect to those resources (sharing, trade, etc.). By contrast, legal literature on ownership is much more concerned with institutions of ownership, that is to say, with those relations between persons and things that find formal expression in the juridical structures of law (Dagan, Reference Dagan2011). For example, on an orthodox legal account, where B is owner of t, the “content” of B's relation to t consists of a general duty owed by everyone else in the world not to interfere with B's control of t (McFarlane, Reference McFarlane2008). The existence of this general duty, which often finds doctrinal expression in the law of civil wrongs, preserves a sphere of freedom for B to do what she likes with t (to sell it, give it away, let A use it for a while, and so on); and so creates the legal conditions for B to set the agenda for the use of t through exercise of an open-ended set of privileges in respect of t's use (Harris, Reference Harris1996; Katz, Reference Katz2008).
It strikes us as interesting that, in Boyer's model, the proposed representations of ownership have much more to do with B's perception of A's relation to t (and its strength, etc.) rather than any intuitions that B may have about B's things. This may be an important point of distinction between cognitive accounts of ownership and legal accounts of the institutions of ownership. While Nancekivell, Friedman, and Gelman (Reference Nancekivell, Friedman and Gelman2019) have observed that there is no necessary conflict between an institutional account of ownership and an account of how ownership is represented psychologically, they also emphasise that institutional accounts neglect non-normative aspects of ownership. It might equally be the case that representations of ownership, focused on cues apparent to B from the interactions of A with t, underemphasise those dimensions of B's agenda-setting authority in respect of B's things which property theorists consider to be vital to an explanatory account of ownership as a legal and social institution.
This could be important, because in law there are currently significant debates concerned with the scope of B's authority and the extent to which it might be limited by countervailing legal obligations. “Progressive property” theory (Alexander, Penalver, Singer, & Underkuffler, Reference Alexander, Penalver, Singer and Underkuffler2009) seeks to argue that property institutions are justified by their capacity to promote human flourishing, and this entails that B's agenda setting authority is tempered by social obligation norms conditioned to promote other-regarding behaviour that squares B's autonomy in dealing with things with a broader sense of responsibility to her community (Alexander, Reference Alexander2018). This account of property has far-reaching implications for the use of resources, in contexts as diverse as compulsory land acquisition by governments and the regulation of food waste. To the extent that it is predicated on the idea that owners have obligations to the members of their community, it seems to offer a frame for thinking about ownership that resonates with Boyer's emphasis on co-operative interactions. There might be much to be gained from increased co-operation between property lawyers and psychologists on these themes.
Although we have focussed thus far on the contrast between intuitive and institutional understandings of ownership, there are also important psychological questions about how those understandings might be related in the mind of the understander. There are precedents in cognitive science for seeking to elucidate psychological relations between formal and informal theories of a number of domains. For example, cognitive scientists of science have shown that scientific and intuitive understandings of the physical world coexist (Shtulman & Lombrozo, Reference Shtulman, Lombrozo, Barner and Baron2016), so that even professional scientists display vestiges of their earlier intuitions when verifying scientific facts (Kelemen, Rottman, & Seston, Reference Kelemen, Rottman and Seston2013). Moreover, work in science education has explored how intuitive understanding interferes with the acquisition of formal scientific theory (e.g., Coley & Tanner, Reference Coley and Tanner2015) and how such influences might be overcome (Ronfard, Brown, Doncaster, & Kelemen, Reference Ronfard, Brown, Doncaster and Kelemen2021).
In addition to considering implications of accounts of ownership intuitions for institutional accounts, and vice versa, property lawyers and psychologists might also consider the psychological relations which hold between intuitions about property relations and more “formal” legal understandings based on institutions of ownership. One possibility is that these understandings coexist in the minds of people who have undergone legal education. To test this, we might ask whether property lawyers behave in ways consistent with the coexistence hypothesis, such that their judgements about property relations might be affected by both institutional and intuitive notions of ownership. Relatedly, we might ask whether an institutional understanding of property relations is present in people who have not received any legal education. Unlike science, law is not usually taught until third level, and so the developmental pattern may be different in the two domains. Moreover, once students do begin their legal education, it may be worth exploring in detail the overlap between intuitive and institutional notions of property relations so as to uncover any aspects of the former which make the acquisition of an institutional understanding more difficult than it might otherwise be.
We realise that the primary audience for Boyer's paper consists of cognitive scientists interested in the ontology of ownership intuitions. But the work it describes may have implications for the foundations of legal understanding of property, as well as for legal pedagogy. It deserves to be read by legal scholars as well as by cognitive scientists.
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Boyer proposes a computational model that derives intuitions about ownership from two sets of cognitive systems, one having to do with competitive acquisition of resources and the other concerned with co-operation with respect to those resources (sharing, trade, etc.). By contrast, legal literature on ownership is much more concerned with institutions of ownership, that is to say, with those relations between persons and things that find formal expression in the juridical structures of law (Dagan, Reference Dagan2011). For example, on an orthodox legal account, where B is owner of t, the “content” of B's relation to t consists of a general duty owed by everyone else in the world not to interfere with B's control of t (McFarlane, Reference McFarlane2008). The existence of this general duty, which often finds doctrinal expression in the law of civil wrongs, preserves a sphere of freedom for B to do what she likes with t (to sell it, give it away, let A use it for a while, and so on); and so creates the legal conditions for B to set the agenda for the use of t through exercise of an open-ended set of privileges in respect of t's use (Harris, Reference Harris1996; Katz, Reference Katz2008).
It strikes us as interesting that, in Boyer's model, the proposed representations of ownership have much more to do with B's perception of A's relation to t (and its strength, etc.) rather than any intuitions that B may have about B's things. This may be an important point of distinction between cognitive accounts of ownership and legal accounts of the institutions of ownership. While Nancekivell, Friedman, and Gelman (Reference Nancekivell, Friedman and Gelman2019) have observed that there is no necessary conflict between an institutional account of ownership and an account of how ownership is represented psychologically, they also emphasise that institutional accounts neglect non-normative aspects of ownership. It might equally be the case that representations of ownership, focused on cues apparent to B from the interactions of A with t, underemphasise those dimensions of B's agenda-setting authority in respect of B's things which property theorists consider to be vital to an explanatory account of ownership as a legal and social institution.
This could be important, because in law there are currently significant debates concerned with the scope of B's authority and the extent to which it might be limited by countervailing legal obligations. “Progressive property” theory (Alexander, Penalver, Singer, & Underkuffler, Reference Alexander, Penalver, Singer and Underkuffler2009) seeks to argue that property institutions are justified by their capacity to promote human flourishing, and this entails that B's agenda setting authority is tempered by social obligation norms conditioned to promote other-regarding behaviour that squares B's autonomy in dealing with things with a broader sense of responsibility to her community (Alexander, Reference Alexander2018). This account of property has far-reaching implications for the use of resources, in contexts as diverse as compulsory land acquisition by governments and the regulation of food waste. To the extent that it is predicated on the idea that owners have obligations to the members of their community, it seems to offer a frame for thinking about ownership that resonates with Boyer's emphasis on co-operative interactions. There might be much to be gained from increased co-operation between property lawyers and psychologists on these themes.
Although we have focussed thus far on the contrast between intuitive and institutional understandings of ownership, there are also important psychological questions about how those understandings might be related in the mind of the understander. There are precedents in cognitive science for seeking to elucidate psychological relations between formal and informal theories of a number of domains. For example, cognitive scientists of science have shown that scientific and intuitive understandings of the physical world coexist (Shtulman & Lombrozo, Reference Shtulman, Lombrozo, Barner and Baron2016), so that even professional scientists display vestiges of their earlier intuitions when verifying scientific facts (Kelemen, Rottman, & Seston, Reference Kelemen, Rottman and Seston2013). Moreover, work in science education has explored how intuitive understanding interferes with the acquisition of formal scientific theory (e.g., Coley & Tanner, Reference Coley and Tanner2015) and how such influences might be overcome (Ronfard, Brown, Doncaster, & Kelemen, Reference Ronfard, Brown, Doncaster and Kelemen2021).
In addition to considering implications of accounts of ownership intuitions for institutional accounts, and vice versa, property lawyers and psychologists might also consider the psychological relations which hold between intuitions about property relations and more “formal” legal understandings based on institutions of ownership. One possibility is that these understandings coexist in the minds of people who have undergone legal education. To test this, we might ask whether property lawyers behave in ways consistent with the coexistence hypothesis, such that their judgements about property relations might be affected by both institutional and intuitive notions of ownership. Relatedly, we might ask whether an institutional understanding of property relations is present in people who have not received any legal education. Unlike science, law is not usually taught until third level, and so the developmental pattern may be different in the two domains. Moreover, once students do begin their legal education, it may be worth exploring in detail the overlap between intuitive and institutional notions of property relations so as to uncover any aspects of the former which make the acquisition of an institutional understanding more difficult than it might otherwise be.
We realise that the primary audience for Boyer's paper consists of cognitive scientists interested in the ontology of ownership intuitions. But the work it describes may have implications for the foundations of legal understanding of property, as well as for legal pedagogy. It deserves to be read by legal scholars as well as by cognitive scientists.
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This research received no specific grant from any funding agency, commercial or not-for-profit sectors.
Competing interest
None.