The Human Biology of Property

In Chapter 4 of Darwinian Conservatism, I have argued that a Darwinian view of human nature sustains the traditionalist conservative and classical liberal commitment to private property as a natural propensity that is diversely expressed in custom and law.  The particular rules for property rights are determined by customary traditions and formal laws that vary across history and across societies, but that variation is constrained by the natural desire for property.  We need to understand the complexity of property across three levels--natural property, customary property, and formal property.

In my chapter, I illustrated this with the historical case of mining law in California.  Once gold was discovered in northern California in 1848, hundreds of thousands of people went there to search for gold, and they showed their natural instinct for property by claiming land for mining by taking possession of it, although they were only squatters on land officially owned by the federal government.  To settle disputes over mining claims, the miners developed customary rules that they enforced among themselves by social tradition.  Then, finally, in 1866, the United States Congress passed a federal mining law that formally legalized these local customs of the miners. 

Thus, the property claims of the miners moved through three levels--natural possession, customary rules, and formal laws.  This manifests the general structure of Darwinian social order as the joint product of natural desires, cultural practices, and deliberate judgments.

In recent years, a growing number of law professors have become interested in the evolutionary analysis of law, and one prime area of research has been the evolutionary analysis of property law.  As surveyed in some articles by Jeffrey Stake and James Krier, this research largely confirms my Darwinian account of property.

This research also provides a scientific confirmation for the evolutionary explanation of property laid out originally by John Locke (in his Two Treaties of Government) and William Blackstone (in his Commentaries on the Laws of England).  First, among ancient foraging bands, hunting territory was owned communally by the band--excluding other bands--and personal property (such as weapons, tools, and clothing) was owned individually.  These original claims to property were based on possession and occupancy, so that the first person to take and hold possession of something was presumed to own it.  This was enforced by customary agreement.  But, then, when agriculture was developed, the growing scarcity and thus value of land, made it necessary to settle property disputes through the formal institutions of government, and the invention of writing facilitated this.  Finally, with the expansion of commerce and trade, property rights became ever more subject to rules of sale, grant, or conveyance.

Locke saw property rights as rooted ultimately in self-ownership--the natural sense that one owns one's body--and in the extension of oneself into external objects by the labor of taking possession of them.  A Darwinian biological psychology explains this as rooted in the human brain and body as evolved by natural selection for survival and reproduction.

The articles by Stake and Krier are especially valuable because of the way they explain the evolutionary basis for property in John Maynard Smith's study of how the "bourgeois" strategy develops among animals to settle disputes over territory and resources.  If we imagine two animals competing for access to a particular breeding territory, and if they have an equal opportunity of arriving first and possessing it or arriving later and being an intruder, we might imagine two possible strategies: the Hawk who fights until one animal is injured and retreats, and the Dove who bluffs but never fights.  Under certain conditions, the best strategy is a "bourgeois" strategy that mixes the other two: "if owner, play Hawk; if intruder, play Dove."  In fact, many animals do seem to play this strategy, so that the possessor of a territory tends to have an advantage over an intruder, and consequently there is a kind of instinctive rule of property that favors possessors over intruders.

The primacy of possession runs through much of our property law, and this could be because it is rooted in the evolved structure of our brains so that it feels right to us.  Krier concludes: "Possession, as any property lawyer knows, remains the cornerstone of most contemporary property systems--nine points of the law, the root of title, and the origin of property" (159).

REFERENCES
Krier, James E.,  "Evolutionary Theory and the Origin of Property Rights," Cornell Law Review 95 (2009): 139-160.

Stake, Jeffrey Evans, "The Property 'Instinct,'" Philosophical Transactions of the Royal Society of London B, 359 (2004): 1763-1774.