Kathryn Elizabeth Loncarich, ‘Nature’s Rights: The Evolutionary Origins of Property Rights’

Evolution’s influence on our modern property system has been largely ignored by legal scholarship. This Article analyzes the evolutionary foundation of our common law understanding of possession leading to rightful ownership and near-absolute ownership rights and explores the implications for our modern-day conceptions of property. In the animal kingdom, a wide array of animals respect ownership rights of prior possessors by not seriously challenging the possessors’ rights to exclude and exclusive use of valuable resources. This behavior is believed to be a favorable evolutionary strategy because, rather than engaging in costly contests over territory, animals can dedicate their time and energy to find resources to increase their ability to survive and reproduce.

Evolution, however, merely produces “good enough” results based on historic environmental conditions. For property, this solution may have been based on environmental conditions millions of years ago, when the world was strikingly different than it is today. The American property system has been resistant to respond to changing environmental and societal needs. As a result, our property system fails to adequately account for the growing population of the people struggling to afford basic life necessities. By properly understanding the evolution’s influence on our property system, we understand that the foundation of our system is neither inevitable nor ideal, and we are left with space to re-imagine the way we understand property and the allocation of resources in a way that better fulfills the needs of our modern society.

Loncarich, Kathryn Elizabeth, Nature’s Rights: The Evolutionary Origins of Property Rights (August 14, 2013).

First posted 2013-08-16 14:49:14

Leave a Reply