>> ... don't confuse *res nullius*, or unowned goods, with commons.
> Who makes the determination as to what is res nullius (a legal term
> BTW) and what is not? The fact that it's a legal term provides all the
> clues you need to answer this question. The society in which you live
> decides if you had "first possession" and whether that is even
> relevant for the subject of ownership in the first place.
That is a good question. First possession is the criterion of ownership
of property in virually all cultures, at all times in known history.
I.e., if someone makes a spear, it is considered to be the property of
the maker, regardless of culture. If someone uses the spear to kill an
antelope, the antelope is considered to be the property of the hunter
(although in many tribes there may be an agreement to share one's kill
with other hunters). If someone picks berries from a wild bush, they are
considered to be the property of the picker.
Even wild animals respect that principle. A cougar will not attempt to
seize another cougar's kill. But while still on the hoof, the deer is
"fair game."
The first possession rule is the "default rule" --- the rule of
interaction most likely to assure peace among humans (or other animals)
inhabiting a common territory. It is a rule which one human can apply
when encountering another, even if he knows nothing about that other.
There is never a guarantee that the other will also observe the rule, of
course, so there is always a wariness in such encounters. But the rule
will be observed by both parties, in most encounters.
How does that happen?
It is a process called "adaptive consensus." Essentially, it is a
practice or rule which becomes widely, or even universally, adopted by
trial-and-error, by example and emulation, in the light of experience.
It is the same process by which humans in a community acquire a common
language, or common techniques and methods for performing common tasks.
There is no formal pedagogic process, nor any debate or discussion,
involved in reaching an adaptive consensus; indeed, most people are
unaware that any consensus is developing. They simply discover, or
observe, a rule or practice that seems to work, and adopt it. Others
observe them employing that rule or practice and also adopt it.
In other words, an adaptive consensus will develop around a rule or
practice that seems to work most of time, or at least work better than
any other rule available at the time.
Moral theory can explain why that rule works. Humans in social settings
--- whereever there is a possibility of interaction between individuals,
all of whom require various types of goods for survival and comfort,
require some rule for determining what goods belong to whom; what goods
each person may consider to be "properly theirs," i.e., their property.
The default rule amounts to, "You may take as your property anything you
desire, as long as you don't injure someone else in the process. Taking
a good already in someone else's possession injures that person; you
have deprived him of the time and effort he invested in acquiring it,
and of the benefits he is deriving from it. Taking a good in no one's
possession injures no one, because no one has invested any time or
effort in acquiring it, or is deriving any benefit from it."
The first possession rule is a rule for determining property ownership
which permits each person to acquire the property he needs to survive
and prosper without thereby inflicting injuries on others. That is why
it is followed in virtually all cultures.
"*Res nullius*" is indeed a common law term. The common law is not
statutory law; it is law developed by trial and error, by judges
applying accepted principles of equity and fairness to cases brought
before them. Common law notions, rules and principles governing property
--- the major component of common law jurisprudence --- were
codifications of those already understood and generally accepted
informally in medieval England, and virtually everywhere else.
The first possession rule is valid because it is morally justifiable.
The opinions of majorities are irrelevant to that validity. Many people
will propose a different rule, or be tempted to ignore the rule, if they
come to believe themselves strong enough to seize others' property by
force, e.g., with the aid of gummint goons. The first possession rule is
rule which is adopted when people must either relate on a voluntary
basis, or risk being shunned by others (or killed).
> A good example of this is my wife, who picks up money she finds in
> parking lots and other public places. *Legally* that money is "res
> nullius" despite the fact that we all know that she has not taken
> "first possession".
Yes. First posession starts over when a title chain is broken (it is not
possible to trace ownership further). Abandoned property becomes *res
nullius*, as does lost property, provided the finder has made a
"reasonable effort" to locate the owner.
