From the original 1816 English translation of The Swiss Family Robinson, which I read while on sabbatical last year:
“Oh dear papa, cried Francis, do give me the shell, it will be such a pretty plaything!
No, no, bawled out another: and one and all contended for the preference. I imposed silence, declaring that the right was entirely in Fritz, since it was he who had harpooned the animal, who, but for his dexterity and skill, would be at this moment existing in the sea.–But, continued I, it may be well to ask what each of you thought of doing with the shell if he had obtained it?”
This reminded me of Robert C. Ellickson’s 1989 paper “A Hypothesis of Wealth Maximizing Norms: Evidence from the Whaling Industry” as well as of Ellickson’s 1994 book, which is a more elaborate treatment of the same topic with several more applications.
In his paper, Ellickson conducts a case study of the whaling industry in the 18th and 19th centuries (think Moby Dick) so as to argue that social norms emerge and evolve with the objective of maximizing wealth. In this context, “maximizing wealth” really means minimizing transaction costs and deadweight losses, and this is not unlike Posner’s hypothesis that the goal of Common Law is to maximize efficiency.
For example, Ellickson discusses the Iron-Holds-the-Whale norm. According to this norm, whoever harpooned a whale first became its owner once the animal was captured, but this only held as long as the whaler who had first harpooned the whale was in fresh pursuit.
To understand why the Iron-Holds-the-Whale norm is wealth-maximizing, suppose whalers A and B both managed to harpoon a given whale, but that the whale manages to elude them both.
After some time, whaler C harpoons the whale and manages to kill it, finding A and B’s harpoons stuck in it. Even if it were possible to identify who of A and B each harpoon belongs to, the transaction costs involved in determining who harpooned the whale first would be prohibitive. This means that a Finders Keepers norm would not maximize wealth.
The Iron-Holds-the-Whale norm is similar in spirit to the concept of adverse possession, according to which one can become the de facto owner of a plot of land after continuously occupying the land for a set amount of time.