Human Behavior, Evolution, and the Law: The Case of the Biology of Possession

D. Benjamin Barros*

INTRODUCTION Possession is a foundational idea in property law. The beginning of the first-year Property course typically begins with an extended examination of the idea of possession, often taught through a review of such classic possession cases as Pierson v. Post1 and Johnson v. MIntosh.2 In classic essays, Richard Epstein and Carol Rose discussed possessions role at the root of property law.3 Recent scholarship has suggested that respect for possession may be an innate aspect of human behavior. Jeffrey Evans Stake argued in 2004 that there is an evolutionary basis for an instinct to respect possession.4 More recently, Ori Friedman and Karen Neary have published the results of psychological studies suggesting that both adults and children tend to associate prior possession with ownership.5 These studies suggest that the respect for possession that is at the center of our property law may be consistent with and, indeed, may have its basis in basic human behavioral tendencies.
Associate Professor of Law, Widener University School of Law; Graduate Student, Ph.D. Program, University of Maryland Department of Philosophy. Thanks to Ori Friedman, Dan Moller, Michael Weisberg, and participants at the Property Works in Progress Conference at the University of Colorado at Boulder for helpful comments. 1 3 Cai. R. 175 (N.Y. 1805). 2 21 U.S. (8 Wheat.) 543 (1823). 3 Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985); Richard A. Epstein, Possession as the Root of Title, 13 GEO. L. REV. 1221 (1979). 4 Jeffrey Evans Stake, The Property Instinct, 259 PHILOSOPHICAL TRANSACTIONS OF THE ROYAL SOCIETY, BIOLOGICAL SCIENCES 1763 (2004). 5 Ori Friedman & Karen Neary, First Possession Beyond the Law: Adults and Young Childrens Intuitions About Ownership, 83 TUL. L. REV. 679 (2009); Ori Friedman & Karen Neary, Determining Who Owns What: Do Children Infer Ownership From First Possession?, 107 COGNITION 829 (2008); Ori Friedman, First Possession: An Assumption Guiding Inferences About Who Owns What, 15 PSYCHONOMIC BULL. & REV. 290 (2008).
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*

Electronic copy available at: http://ssrn.com/abstract=1559390

In this Essay, I consider the relevance of this behavioral research to normative issues in property law. Along the way, I discuss the broader issue of the potential relevance of biological facts about human behavior to the law. The recent behavioral research by Friedman & Neary and the evolutionary arguments made by Stake present a useful opportunity to contrast the differences between two different types of biological claims about human nature and their relevance to the law. Behavioral research of the type conducted by Friedman & Neary makes claims about how people actually behave in a legally-relevant context. Evolutionary arguments like those made by Stake, in contrast, posit evolutionary origins for human behaviors. In the course of discussing specific issues relating to possession and property law, I will argue that facts about actual human behavior are highly relevant to law. Drawing in part on arguments recently developed by Brian Leiter and Michael Weisberg,6 in contrast, I will argue that evolutionary facts, even if scientifically well founded, have little or no relevance to the law. I begin in Part I with a brief introduction to the different ways that the concept of possession is used in property law and scholarship, and I explain the important distinctions between first possession, prior possession, and current possession. In Part II, I discuss Friedman & Nearys research, which, while preliminary, suggests that human beings may have an innate tendency to respect prior possession. I then consider the potential normative significance of this empirical research, and argue that naturalistic facts about human behavior are relevant to law at least to the extent that they are useful in choosing between effective and ineffective strategies for legal regulation. In Part III, I examine Stakes evolutionary argument, and criticize it on two levels. First, I argue that Stakes argument that respect for possession is an evolved trait in human beings lacks evidentiary support. Second, I argue that evolutionary facts have very little significance when compared to empirical facts about human behavior, such as those produced by Friedman & Nearys research. I therefore argue that even if it could be established that human respect for possession is an evolved trait, this evolutionary fact would have little or no significance to property law. I conclude that naturalistic facts about human tendencies regarding possession are relevant and important to normative property issues, but that some types of facts are more relevant and important than others. An understanding of facts about actual human behavior, such as those suggested by Friedman & Nearys research, is critical to the design of effective property rules. More broadly, facts about actual human behavioral
6

Brian Leiter & Michael Weisberg, Why Evolutionary Biology Is (So Far) Irrelevant to Legal Regulation, 29 LAW & PHIL. 31 (2010).

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tendencies are highly relevant to the design of effective legal rules. In contrast, even if naturalistic facts about the evolution of human behavior regarding possession could be established, those evolutionary facts would have very limited, if any, importance to property law. Unlike facts about current human behavioral tendencies, evolutionary facts about the origins of those tendencies have little or no relevance to legal issues.

I. POSSESSIONS ROLE IN PROPERTY: FIRST POSSESSION, PRIOR POSSESSION, AND CURRENT POSSESSION DISTINGUISHED The idea of possession plays three important, but distinct, roles in property law and theory. First, possession is central to theories justifying individual ownership of objects that previously had been unowned. These theories seek to explain and defend the origin of a system of private ownership. In Lockes theory of property, for example, people gain ownership of objects by possessing those objects and mixing labor with them.7 Initial ownership theories rest on an idea of first possession, in which the first possessor becomes the first owner of an object.8 Second, the idea of prior possession lies at the heart of many property law doctrines. Under the rule of prior possession, a prior possessor will generally have a superior claim to an object as compared to a subsequent possessor. If formal ownership cannot be established between two claimants for the same object, the rule of prior possession states that the prior possessor will be given ownership of the object. There are many disputes in property law about what actually constitutes possession. For example, the famous case of Pierson v. Post9 involved a dispute about whether pursuit of an animal by a hunter was sufficient to establish possession, or whether the actual killing or grabbing of the animal was necessary to possess it.10 It is an uncontroversial characteristic of property law, however, that once the issue of possession is resolved, a prior possessor typically will win over a subsequent possessor. Prior possession bears a resemblance to first possession, in that both are consistent with the maxim first in time, first in right and give superior claim to an object to the earliest person to lay claim to it. First possession and prior possession, however, tend to do different types of work. First possession is concerned with the initial ownership of an object, and in a
7

See JOHN LOCKE, TWO TREATISES OF GOVERNMENT AND A LETTER CONCERNING TOLERATION 111-21 (Ian Shapiro ed., Yale Univ. Press 2003) (1690). 8 See Rose, supra note 3; Epstein, supra note 3. 9 3 Cai. R. 175 (N.Y. 1805). 10 Id.
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world where there are few unowned objects, first possession is largely relevant to theoretical debates about the idea of ownership itself. Prior possession, in contrast, is a working doctrine reflected in the operation of property law. It assumes the big-picture normative justification of a system of private ownership, and addresses the competing claims of ownership of two possessors, neither of whom in the typical case was the first to own the object in question. This is not to say that the rule of prior possession is without normative content it reflects a normative position that, generally speaking, prior possessors should have superior rights to current possessors. Third, possession plays an evidentiary role in disputes about ownership. Absent other evidence about ownership, current possession may create a presumption of ownership. This evidentiary role of possession is reflected in Lord Mansfields famous observation that Possession is very strong; rather more than nine points of the law.11 Despite its evidentiary significance, however, current possession plays little substantive role in property law. If person B has current possession, and person A can demonstrate prior possession, then the rules of property law will generally operate to vindicate As ownership of the object. (Throughout this Essay, I will use A to represent the prior possessor and B to represent a subsequent possessor). The difference between prior possession and current possession is reflected in the basic operation of property law. The essential function of property law is to vindicate prior rights in an object. If B has current possession and A had prior possession or other evidence of ownership, the law will force B to return the object to A. We could imagine an alternative set of rules that protects current possession over prior possession. This alternative regime would be consistent with the playground maxim finders keepers, losers weepers. (Despite its popularity with the six-to-ten-yearold set, this maxim is not reflected in the actual law of finding, and the original owner or possessor does not lose ownership to the finder.).12 Under this alternate regime, whoever currently possesses the object would own the object. If B has current possession and A had prior possession, the alternate approach would protect Bs possession and would not force a return to A. This approach is exactly the opposite of the current law of property. Indeed, a current possession approach would vary so much from the contemporary law of property that it would be misleading to call it an ownership or property regime. The common understanding of ownership incorporates the idea that a person does not lose ownership simply by losing possession. A current possession regime would protect possessory rights, not ownership rights.
11 12

Corporation of Kingston-upon-Hull v. Horner, 98 Eng. Rep. 807, 816 (1774). See JOSEPH WILLIAM SINGER, PROPERTY 800 (3d ed. 2010).

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The difference between prior possession and current possession will be central to the arguments in the remainder of this Essay. If human beings have an innate tendency to respect prior possession, then current property law can be fairly said to be consistent with this basic element of human nature. If human beings, in contrast, have an innate tendency to respect current possession, then current property law would be contrary to human nature. If human beings do not have any tendency either way, then human nature would have little to say about the role of possession in property law.

II. THE PSYCHOLOGY OF POSSESSION Research recently performed by Ori Friedman and Karen Neary suggests that human beings may, indeed, have behavioral tendencies to respect prior possession. Friedman & Neary performed a series of experiments designed to test how people determine ownership of an object in ambiguous circumstances. Each experiment involved scenarios based on two children and a toy. First one child was shown holding the toy, then the other child was shown holding the toy. No facts about ownership of the ball were presented in the scenarios.13 If people are naturally inclined to favor prior possession, then they should tend to choose the first child shown possessing the toy as the owner. If people in contrast are naturally inclined to favor current possession, then they should tend to favor the second child as the toys owner. If people are not naturally inclined either way, then they should not favor one option over the other. Friedman & Neary conducted two sets of experiments, one with adults and the other with young children. The experiment involving the adult subjects is described as follows: In one study, undergraduate college students read simple cartoons that were each about a boy, a girl, and a toy. In some cartoons, the toy was a soccer ball, and in others it was a teddy bear. The cartoons provided no information about where the children were or the relation between them. Each cartoon began with one character playing with a toy and ended with the other character playing with it. After reading each cartoon, the students were either asked which character owned the toy or which character liked it more.14 Because neither question had a correct answer, the subjects might have
13 14

Friedman & Neary, First Possession Beyond the Law, supra note 5, at 684. Id.

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been expected to pick the owner of the ball at random. The subjects, however, most often picked the first child shown possessing the toy as the owner. Not all participants picked the first possessor as the owner, but the favoritism towards the first possessor was significant.15 The study used a soccer ball and teddy bear as examples to test the effects of sex stereotypes on the subjects answers. If sex stereotypes came into play, subjects might be expected to pick the boy as the owner of the soccer ball and the girl as the owner of the teddy bear. These stereotypes were reflected in the answers to the question addressing which of the two children liked the toy more, but not in the answers to the question addressing which of the two children owned the toy.16 A follow-up study tested for the impact of time of possession on perceptions of ownership. In this follow-up study, one child (sometimes the first possessor, sometimes the subsequent possessor) was shown playing with the toy for a long time, while the other child played with it for a short time. Time of possession did impact answers to the question of who liked the toy more, with respondents favoring the child who played with the toy longer. Time of possession, however, did not have the same impact on answers to the question of ownership. Study participants again tended to identify the prior possessor as the owner, regardless of whether the first possessor or subsequent possessor had the object for a longer time period.17 In the adult study, then, participants consistently favored the prior possessor as the owner of the toy, even when presented with facts that altered their perceptions of which child liked the toy more. Further studies involving two-, three-, and four-year-old children similarly reflected favoritism towards prior possession. These studies were similar to the ones performed with adults, but the scenarios were presented using small figurines rather than cartoons.18 The toy was left with the subsequent possessor for some of the participants; for others, the toy was placed in between the figurines representing the prior and subsequent possessors. Three- and four-year-old participants tended to identify the prior possessor as the owner of the toy.19 In a variant on the study, the three- and four-yearolds were told that one character liked the toy, then told that the other character liked the toy. Neither character was shown possessing the toy. The three- and four-year-olds chose the first and second character equally when asked to identify the owner.20 Freidman & Neary observed that
15 16

Friedman, supra note 5, at 291-92. Friedman & Neary, First Possession Beyond the Law, supra note 5, at 684-85. 17 Id. at 685. 18 Id. 19 Id. 20 Id. at 686.
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[t]his finding demonstrates that children do not simply conclude that the character first associated with an object is its owner. It is not just being first that matters when inferring ownership, but instead being the first to possess.21 Two-year-olds also identified the prior possessor as the owner when the toy was placed between the two figurines.22 When the toy was left in front of the subsequent possessor, however, the two-year-olds often chose the subsequent possessor as the owner.23 Friedman & Neary suggest that one possible explanation for this behavior might be that two-year-olds are more likely to base answers on current reality (i.e., the fact that the subsequent possessor is in possession) rather than abstract principles like prior possession. Another explanation may be that respect for prior possession is a learned behavior that has not yet taken hold in two-year-olds. If it is a learned behavior, it may not be transmitted solely through the overt actions of parents and other caregivers.24 Children, for example, could learn from statistical regularity that the prior possessor is most often the owner of an object, though Friedman & Neary express doubt that this statistical regularity would be reflected in fact.25 Friedman & Neary present their work as the first step in a longer research process,26 and it clearly is too preliminary to support an unqualified assertion that human beings have a strong behavioral tendency to respect prior possession. Among other things, future research will need to address the apparent difference in behaviors between two-year-olds and older children, and address the universality across cultures of the behaviors described by Friedman & Neary. Scholars in a number of disciplines have asserted that an ownership system respecting prior possession is a universal characteristic of human societies.27 If respect for prior possession is indeed
Id. Id. at 685-86. 23 Id. at 686. 24 At least in my personal experience, interactions between parents and other caregivers, on the one hand, and young children, on the other, over the possession of toys can be remarkably complex. Caregivers often discourage children from taking a toy away from another child, but they also encourage children to share toys with others. Consider a scene on a playground where Child A is playing with a toy, and Child B approaches and tries to take the toy away. I have frequently seen (and participated in) situations like this where Child Bs caregiver tells Child B not to take the toy away, while Child As caregiver tells Child A to share the toy with Child B. If the toy actually belongs to one or the other child, though, it is clear which child gets to take the toy home at the end of the day. 25 Friedman & Neary, First Possession Beyond the Law, supra note 5, at 689. 26 Id. at 686-90. 27 See RICHARD PIPES, PROPERTY AND FREEDOM 76 (1999) ([A]nthropoligists have concluded that there never was a society so primitive as not to acknowledge some form of ownership.); Lee Ellis, On the Rudiments of Possessions and Property, 24 SOC. SCI. INFO.
22 21

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a human universal, it may suggest that Friedman & Nearys findings might well be replicable across cultures, though the universality of a behavioral tendency does not alone establish its innateness.28 Further research might also explore whether experimental subjects are able to provide cogent explanations of their allocations of ownership, or whether they are dumbfounded by their choices. As Jonathan Haidt has suggested, dumbfounding might provide evidence that innate predispositions are affecting human behavior.29 This said, Friedman & Nearys research is robust enough to raise an important issue: how should naturalistic facts about human behavior be integrated, if at all, into normative discussion of property issues? Say that subsequent research strongly establishes that human beings in fact do have an innate natural tendency to associate prior possession with ownership. What significance should this fact have for normative issues in property law? One possible approach would be to argue that our current property rules based on prior possession are normatively justified simply because they are consistent with human nature. This approach, however, would raise difficulties by reasoning directly from what is (a fact about human nature) to what ought to be (a normative position about property).30 These difficulties can be gathered under the umbrella of the naturalistic fallacy. The term was coined by G. E. Moore to raise a relatively narrow metaethical objection to the use of naturalistic properties to define the term good.31 It is now used more widely, if technically inaccurately, to encompass a range of objections to basing normative conclusions solely on naturalistic facts.32 I will not fully engage in the debate over this issue here.
113, 114-121 (1985) (discussing rudimentary nature of humen possessive and ownership phenomena); MELVILLE J. HERSKOVITS, ECONOMIC ANTHROPOLOGY 327 (1960) ([T]he phenomenon [of property] is a universal one, since there is no group who live so precariously that there is not some tool, some weapon, some bit of ornament or clothing that is not regarded as indisputably the possession of its maker, its user, its wearer.); E. ADAMSON HOEBEL, MAN IN THE PRIMITIVE WORLD 431 (1958) (Property is a universal feature of human culture.); see also Nurit Bird-David, The Giving Environment: Another Perspective on the Economic System of Gatherer-Hunters, 31 CURRENT ANTHROPOLOGY 189, 193 (1990) (describing ownership of material objects among Nayaka people). 28 See DANIEL DENNETT, DARWINS DANGEROUS IDEA: EVOLUTION AND THE MEANINGS OF LIFE 487 (1996); STEVEN PINKER, THE LANGUAGE INSTINCT 31 (1994). 29 Jonathan Haidt, The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 PSYCHOL. REV. 814 (2001); see also Michael D. Guttentag, Is There A Law Instinct?, 6-7 (working paper). 30 See DAVID HUME, A TREATISE OF HUMAN NATURE, bk. III, pt. I, I (1739-40) (raising the is-ought distinction). 31 See G. E. MOORE, PRINCIPIA ETHICA (1903). 32 See RICHARD JOYCE, THE EVOLUTION OF MORALITY 146 (2006).
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I will note, however, that it seems deeply troubling to base normative conclusions on natural facts alone. It has been argued, for example, that there is an innate tendency among human men towards rape.33 It would be problematic, to say the least, to argue directly from this naturalistic fact to the conclusion that rape is normatively correct. It would be equally problematic, however, to exclude naturalistic facts completely from the process of reaching normative conclusions. Even if the naturalistic fallacy is accepted, and direct steps from naturalistic facts to normative conclusions are viewed as improper, naturalistic facts may still be highly relevant to normative analysis. Facts about human nature can be used, for example, to critique normative conclusions. Imagine (counterfactually) that human beings needed to eat meat to live healthy lives. If this were the case, then a position that vegetarianism was normatively proper could be criticized as being profoundly contrary to human nature. Less dramatically, if a normative position can be shown to be contrary to deeply-rooted tendencies of human behavior, then that position may be critiqued as ineffective, particularly when compared to an alternative position that can be shown to be more effective. Making this point from the other direction, normative positions that are consistent with basic human tendencies are more likely to be effective than those that run counter to basic human tendencies. Deontological approaches to moral or legal normative issues tend to be resistant to effectiveness critiques, because the rules generated by these approaches are by definition divorced from their real-world consequences.34 Concerns about effectiveness, in contrast, are built into consequentialist approaches to normative issues.35 A utility-maximizing approach, for example, would favor a moral or legal rule that most effectively promotes social utility. If a rule that is consistent with basic human tendencies will be more effective in achieving consequentialist goals than a rule that is contrary to those tendencies, then consequentialism will favor the consistent rule. Effectiveness is also relevant to the design of human institutions, including legal systems, that implement normative goals.36 Faced with two alternative choices for the design of a legal rule to implement a normative goal, a legal system should choose the more effective rule. For example,
33 34

See sources cited in Leiter & Weisberg, supra note 6, at 33 n. 3. See Larry Alexander & Michael Moore, Deontological Ethics, STAN. ENCY. OF PHIL. (2007), available at http://plato.stanford.edu/entries/ethics-deontological/. 35 See Walter Sinnott-Armstrong, Consequentialism, STAN. ENCY. OF PHIL. (2006), available at http://plato.stanford.edu/entries/consequentialism/. 36 See D. Benjamin Barros, Group Size, Heterogeneity, and Prosocial Behavior: Designing Legal Structures to Facilitate Cooperation in a Diverse Society, 18 CORNELL J. L. & PUB. POLY 203 (2008).
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consider a law enacting punishment against assaulting another person. Prohibitions against assault can be justified on either deontological or consequential grounds. Imagine that the designers of a legal system are considering two choices of punishment for assault, one based on imprisonment, the other on a monetary fine. If human beings have a deeply-rooted tendency to be more likely to alter their behavior to avoid imprisonment than they are to avoid a fine, then the punishment based on imprisonment will be more effective than the one based on a fine. The effective design of legal systems therefore requires knowledge of basic facts about human nature. These facts include not only those about how people are naturally inclined to behave, but also those about the mutability and innateness of those basic inclinations. If a human behavioral tendency can be modified (for example, through education), then legal systems may have some flexibility in creating rules that run counter to that tendency. Similarly, if certain behaviors are learned, rather than innate, legal systems can take steps to address the development of those behaviors. If, on the other hand, a behavioral trait is neither learned nor mutable, then legal systems will face great difficulty in establishing effective rules that run counter to that trait. If the natural inclination to respect prior possession suggested by Friedman & Nearys research is indeed innate and immutable, it is unsurprising that property systems are set up to protect prior possession. A contrary rule respecting current possession would run counter to a basic human behavioral tendency, and would therefore likely be ineffective. Even if respect for prior possession turns out to be mutable, concerns about effectiveness may counsel against spending the resources needed to alter the innate behavior.

III. EVOLUTIONARY ARGUMENTS ABOUT POSSESSION If respect for prior possession is a deeply-rooted human trait, then it is plausible to suggest that our current property system developed because it was effective and consistent with basic human behavioral tendencies. It is also plausible to hypothesize that this innate respect for prior possession is the product of evolution. This hypothesis raises a sub-issue to that discussed in the prior section: what relevance, if any, do naturalistic facts about the evolution of human behavior have on normative issues about property? Jeffrey Evans Stakes essay The Property Instinct squarely presents

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this issue.37 In the essay, Stake argued that the respect for possession that forms the basis for property law is an evolved human trait. In this Section, I will critique Stakes argument on two levels. First, I will argue that Stakes evolutionary analysis is flawed, and that Stake therefore does not provide any actual evidence that respect for possession is an evolved trait. Second, I will argue that even if Stake was able to provide evidence that this trait was evolved, that fact alone has little or no relevance to normative questions of property law. Stake began his essay by raising the possibility that the institution of property rests in part on deep-seated connections to and attitudes towards things.38 He then presented the hypothesis that these deep-seated connections may be evolved: This article proposes an alternative possibility [to the common view that property is a human-created social institution]: basic components of property preceded formal institutions; fundamental principles of property are encoded in the human brain. There are obvious reasons to believe that a system for allocating rights in things could, at least in part, be hard-wired into animal brains. A scarcity of resources created competition for them, and some forms of competition result in harm to the competitors. Rivals can reduce the costs of competition by adopting strategies for determining the outcome of fights without physical damage.39 Stakes hypothesis was that respect for possession may be an evolved behavioral trait because it helped avoid conflicts over resources, therefore aiding in the survival and reproduction of those human ancestors who possessed this tendency.40 He ultimately concluded that Property is more than a social invention; it is a set of feelings built into our brains to solve survival problems confronting our ancestors.41 I note at the outset that Stakes hypothesis has a great deal of intuitive appeal. Human beings are the product of evolution, and it is plausible to suggest that an innate human trait is the product of evolutionary processes. But a hypothesis alone, however reasonable and intuitive it may be, does
37

Jeffrey Evans Stake, The Property Instinct, 259 PHIL. TRANS. BIOL. SCI. 1763 (2004). 38 Id. at 1763. 39 Id. at 1763. 40 Id. at 1763. 41 Id. at 1772.
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OF THE

ROYAL SOC.,

not prove anything itself. Stake provided two types of evidentiary arguments in support of his hypothesis, each of which is flawed. First, Stake observed that respect for possession is reflected in the behavior of many species of animals. For example, he noted that in many species, the possessor of territory most often successfully defends the territory against an invader of the same species.42 Stake did not make any explicit argument in support of his citation to behavior in non-human animals, so it is unclear exactly what significance he placed on them. This absence of argument is surprising, because there does not appear to any easy connection to be made between of human behavior and the behavior of animal species.43 Even with primates, the link between animal and human behavior is hard to establish, but the examples used by Stake ants, salamanders, and spiders are so evolutionarily remote from humans that the bar for relevance must be set even higher. The evolutionary lines of humans and any of these species diverged so long ago that it is preposterous to suggest that present behaviors are a shared heritage received from a common ancestor. This is particularly true when a large number of animal species reflect contrary behaviors Stake notes, for example, that some spider species do not seem to respect possession.44 To be sure, evidence that a certain behavior is present in a particular animal species might suggest that the behavior in question is capable of evolving, but this evidence provides no direct proof that the same behavior evolved in humans. Even if some connection could be made between these animal behaviors and human behavior, they would still not provide evidence for an evolutionary basis for property law. As discussed in the previous sections, property law is based on a respect for prior possession, not current possession. The territorial behaviors described by Stake, however, reflect the opposite, protecting current possession at the possible expense of prior possession. Stake noted that in many animal species, the current possessor is able to maintain possession against an interloper. To provide an analogue to human property law, and to the types of behavior described in the Friedman & Neary studies described above, Stake would need to provide an example of animal behavior reflecting the following scenario: animal A possesses some territory, and leaves for some reason; animal B arrives and possesses the territory; and animal A then returns, and animal B departs, respecting As prior possessory rights to the territory. Even more on point would be a scenario where another animal, C, protects As possession by
Id. at 1765-66. See Leiter & Weisberg, supra note 6, at 63-65 (criticizing the use of non-human animal examples in arguments about human behavior). 44 Stake, supra note 4, at 1766.
43 42

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expelling B from the territory. Stakes specific examples reflect confusion between prior possession and current possession, and therefore do not support his argument for an evolutionary basis for human property law. It may very well be that examples of animal behavior respecting prior possession could be found, though their relevance to human behavior would still be highly questionable. In the examples provided by Stake, however, there is a simple mismatch between the animal behaviors described and their purported human analogue. Second, Stake argued that respect for possession is an Evolutionarily Stable Strategy (ESS). An ESS is a strategy that, if widely adopted in a population, cannot be invaded by a competing strategy. ESS has a formal game-theoretical definition,45 and Stake does not offer a game-theoretical argument in favor of his ESS position. Rather, Stakes ESS argument is based on the possible competitive advantage that members of the population would obtain if they followed the strategy of respecting possession. This competitive advantage is based on the ability to avoid a damaging fight over resources. If two members of a species, A and B, are both willing to follow a rule of resource allocation, then they will avoid fights over resources. Stake suggested that the common-law rule of first-in-time developed as such a resource-allocation rule that helped avoid violent conflict over resources. He pointed out that [w]illingness to fight may overcome inferior fighting ability.46 If people were particularly willing to fight for some resource that they were first to possess, then an ESS respecting prior possession might develop as people tended to defer to prior possessors who could be expected to fight fiercely for the resource. Stake wrote: A strategy can work for the benefit of both parties only when both parties respond to the same environmental trigger. Both need to know when to be assertive, when to be deferential. Humans with a miscalibrated cognitive module for recognizing possession by others would have found themselves trying to obtain what was fiercely defended, whereas those who did not recognize their own possession would have failed to keep track of things that could have been easily secured. The result is that most of us descended from beings who could correctly determine who was first according to the convention.47

See J. McKenzie Alexander, Evolutionary Game Theory, STAN. ENCY. OF PHIL. (2009), available at http://plato.stanford.edu/entries/game-evolutionary/#DefEvoSta. 46 Stake, supra note 4, at 1765. 47 Id. at 1675.
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45

There are two related problems with Stakes ESS argument. First, there is no evidence offered to support it. As such, it constitutes an evolutionary just-so story, plausible on its face but not tied to any scientific basis to believe its truth. An equally plausible story leading to the same evolutionary result could be based on something other than avoiding damaging fights. For example, groups made up of individuals who respected possession might be more successful in incentivizing desirable activities such as hunting than those made up of individuals who did not respect possession. A familiar justification of private property is that it incentivizes production.48 A hunter may be more willing to expend energy in pursuit of game if the groups respect for possession allows the hunter priority in consuming the animal. Increased success in hunting would make it more likely that people who respected possession would survive and reproduce. An evolutionary hypothesis supported by evidence would provide a basis for evaluating which of these two alternate histories Stakes account of avoidance of damaging fights or my alternative (and hypothetical) account of increased success in hunting was true.49 Second, the argument that Stake offers in support of respect for prior possession being an ESS would work just as well (and perhaps better) for a rule favoring current possession. For the strategy to develop, Stake notes that it must both provide a single winner in most situations and must be based on an observable criterion.50 Both prior possession and current possession would satisfy the single-winner requirement. Current possession, however, would be far superior on the observability requirement. It is straightforward to identify the current possessor of a resource. In many circumstances, it is much more complicated to identify a prior possessor of a resource among other things, identification of a prior possessor requires observation over time. It is also plausible that a current possessor would be expected to fight fiercely to defend possession of a resource. The same logic supporting the argument that respect for prior possession can be an ESS therefore would support an argument that respect for current possession can be an ESS. Other than property laws current rules based on prior possession, Stake provides no evidence explaining why a prior possession ESS, as opposed to some other alternative, took hold in the human population. Stake, then, has provided no actual evidence in support of his hypothesis
48

See JEREMY BENTHAM, THE THEORY OF LEGISLATION bk. II, pt. I, ch. VII, at 110 (Harcourt, Brace 1931). 49 Another possibility might be that a behavioral tendency to respect prior possession is the result of cultural influences on evolution. See PETER J. RICHERSON AND ROBERT BOYD, NOT BY GENES ALONE: HOW CULTURE TRANSFORMED HUMAN EVOLUTION (2004). 50 Stake, supra note 4, at 1765.
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that respect for possession is an evolved human behavior. The human tendency to respect prior possession suggested by Friedman & Nearys research (which, in fairness to Stake, came out after he published his analysis) might provide some evidence that respect for prior possession was an ESS in human evolutionary history. Assuming for the sake of argument that human respect for prior possession is the result of evolutionary mechanisms, what significance should that additional naturalistic fact have? Put another way, what might evolutionary arguments add that cannot be provided by research about actual current human behavior? In the legal arena, there is a tendency by those making evolutionary arguments to simply argue that normatively-relevant attitudes or behaviors might be the product of evolution, and to use the scientific authority conveyed by evolution to imply that the evolved position is normatively correct.51 Actual arguments for the normative significance of evolutionary facts are generally absent. Three possible normative uses of evolutionary facts suggest themselves. First, it could be argued that because particular behaviors evolved, they are normatively correct. On this approach, if it could be demonstrated that our respect for prior possession is the product of evolution, then respect for prior possession would be seen as normatively correct. This type of argument would simply be a more specific version of the general appeal to naturalistic facts discussed in the previous section. As discussed there, arguments in this form run into the naturalistic fallacy, in its broad contemporary incarnation of standing for the problems of reasoning directly from an is to an ought.52 Second, it could be argued that because evolution played such a significant role in shaping our moral judgments that those judgments are unreliable. This type of argument is called an evolutionary debunking argument.53 On this approach, if it could be demonstrated that our respect for prior possession is the product of evolution, then this fact would call into question our normative judgments about prior possession. Evolutionary debunking arguments have their basis in the proposition that evolution generally, and natural selection in particular, will not lead us to form beliefs that are objectively true. Rather, natural selection will lead us to form beliefs that are fitness-enhancing.54 If our beliefs are strongly
Stakes arguments about biology and property can be characterized in this way. Another recent example is Edwin S. Fruehwald, A Biological Basis For Rights (2009) (working paper, available at http://ssrn.com/abstract=1440247). 52 See supra notes 31-32 and accompanying text. 53 See generally Guy Kahane, Evolutionary Debunking Arguments, 44 NOUS __, __ [ms 1012] (forthcoming 2010); Joyce, supra note 32, at 179-219. 54 See Kahane, supra note 53, at [ms 10-12]; Stuart Rachels & Torin Alter, Nothing Matters in Survival, 9 J. ETHICS 311, 314-15 (2005).
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influenced by natural selection, then our normative judgments that those beliefs are correct might be a collective illusion foisted upon us by our genes.55 Put another way, [w]ere it not for a certain social ancestry affecting our biology, we wouldnt have concepts like obligation, virtue, property, desert, and fairness at all.56 Because the biological mechanisms that created our beliefs in these concepts are not truth-tracking, we might be led to the conclusion that not only are our normative beliefs about a particular moral issue suspect, but that there might not exist anything that is morally right or wrong, of accepting the possibility that describing the world in moral terms is in the same ballpark as taking horoscopes seriously or believing that ancestral spirits move invisibly among us.57 Evolutionary debunking arguments, then, lead at least to skepticism about the objective truth of our intuitive normative beliefs. They may also lead to a deep skepticism about the entire enterprise of forming normative judgments.58 For pragmatic reasons, I will presume that this strong-form skepticism is misplaced and that the overall normative enterprise in some form survives the evolutionary debunking objection. Even if this presumption is made, the weaker form of skepticism retains its importance. If, as Stake suggests, respect for prior possession has evolutionary origins, then we should worry that there will be a mismatch between our intuitive tendency to respect prior possession and normative values based on something other than biological fitness. In other words, evidence of an evolutionary origin might undercut, rather than support, an argument that respect for prior possession is normatively correct. Third, it could be argued that that evidence of the evolutionary origin of respect for prior possession, if such could be found, would make a legal rule contrary to prior possession ineffective. As I argued in the previous section, the effective design of legal rules must account for innate human behaviors that might undercut or support those rules. Even allowing this role for naturalistic facts, however, does not establish the relevance of evolutionary facts to this type of inquiry. As Brian Leiter and Michael Weisberg argue in their recent comprehensive critique of the application of evolutionary biology to normative legal issues,59 evolutionary biological stories about human
55 56

Michael Ruse, TAKING DARWIN SERIOUSLY 253 (1986). Joyce, supra note 32, at 181. 57 Id. at 181-82. 58 See Kahane, supra note 53, at [ms 28]; Joyce, supra note 32, at 182. 59 Leiter & Weisberg do not argue against the general relevance of naturalistic facts to legal normative issues; to the contrary, they suggest that such facts should be relevant to such issues. Instead, they make a series of arguments specifically against the relevance of evolutionary biology to the law. One their initial points is that at least in its current state, evolutionary biology does not provide a strong scientific basis to make any conclusions
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behaviors are etiological that is, that they are stories about the origins of those behaviors. They observe that there are two ways law might try to alter a behavior: either by (a) regulating the cause of the behavior, or (b) regulating the behavior itself.60 Regulations aimed at causes of behavior provide the only context in which issues of etiology are clearly relevant. If a certain human behavior can be demonstrated to be solely the product of evolution, then regulations aimed at cause will be futile. If, on the other hand, a human behavior is caused by environmental factors, then regulation addressing those factors may be an effective strategy in regulating the behavior. Even if they may have some relevance to regulations aimed at the cause of a behavior, etiological facts are not relevant to regulations aimed at those behaviors themselves. To be effective, behavioral regulation must be informed by facts about the plasticity (i.e., modifiability) of the behavior being regulated.61 If the behavior is not plastic at all, then regulation of the behavior will be ineffective. If the behavior is plastic, then regulation of the behavior may work, and regulations informed by facts about the details of the behaviors plasticity are most likely to be effective. As suggested above, concerns about cost and practicality may undercut the effectiveness of a legal regulation that runs against an innate behavior, even if that behavior is modifiable. Etiological facts play little or no role in this analysis. The relevant facts about plasticity can be determined through empirical study of actual human behavior. Even if it could be demonstrated that an evolved behavior is less likely to be easily modifiable than an unevolved behavior, this general fact would be not be controlling in any given circumstance. Further, even in the highly unlikely event that it could be proven that all evolved behaviors are not plastic, and that the regulation of those behaviors would be futile, it is far from clear that this fact would add much to the analysis, because the non-plasticity of those behaviors could be demonstrated in a more straightforward fashion through empirical research into current human behavior. Assuming for a moment that good evidence could be provided to support the proposition that respect for prior possession is evolved, consider how these three approaches to the normative significance of evolutionary facts would apply to an attempt through legal regulation to modify a human inclination to respect prior possession. Under the first approach (if it evolved, it is normatively correct), this attempt would be resisted as normatively wrong on the basis that it is contrary to an evolved human
about human behavior. The lack of evidence in Stakes analysis discussed above is an example of this problem. 60 Leiter & Weisberg, supra note 6, at 40. 61 Id. at 39-41.
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behavior. As discussed above, this attempt should be rejected on naturalistic fallacy grounds. Under the second approach (if it evolved, it is normatively suspect), the attempt to change the possession rules would be supported on the basis that the current rules based on prior possession are evolutionary artifacts with no independent normative justification. There is more to the second approach than a simple rejection of the first. The second approach would not only assert that evolutionary facts should not be controlling of the normative issue, but would also assert that the evolutionary facts affirmatively undercut the normative standing of prior possession. The third approach (evolutionary facts are relevant to effectiveness issues) would not gain much traction because the proposed change in possession rules would not be aimed at the cause of a human behavior. Rather, it would be aimed at modifying a behavior (respect for prior possess) itself. In this context, etiological facts about the behavior would have very little relevance. In contrast, facts about the innateness and malleability of the behavior would be highly relevant. If it could be established that respect for possession is innate and not malleable, then the proposed change in possession rules could be resisted as contrary to human nature and as likely to be ineffective. To be sure, actual evidence of an evolutionary basis of respect for prior possession would be relevant to the issue of innateness. It would not, however, be dispositive on the issue of malleability. Facts about both innateness and malleability are better established through research on actual human behavior, such as the studies by Friedman & Neary discussed above, than through evolutionary etiology.62 Similarly, detailed facts about the exact contours of a tendency to respect prior possession, which would be highly relevant to the effective crafting any legal regulation affecting possession, could only be established through empirical study of current behavior. Stakes evolutionary arguments, even if proven, would therefore have little or no impact on property issues related to possession. CONCLUSION Friedman & Nearys studies represent a promising start to research into human behavior regarding possession. More empirical work of the same sort may demonstrate that people have an innate tendency to respect prior possession. Facts about the existence and malleability of this tendency, if established, would be important to the effective design of property systems,
62

Friedman & Nearys research so far has focused on the issue of innateness, rather than malleability. Malleability, however, could be tested by further research on actual human behavior.

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and would inform the discussion of normative issues relating to property. Stakes evolutionary analysis of possession, in contrast, lacks evidentiary support, and would be of little normative significance even if it could be proven. Indeed, evolutionary debunking arguments suggest that the evolutionary history of a behavioral tendency might undercut its normative standing. A more naturalized property law therefore will be achieved more through a better understanding of actual human behavior than through a better understanding of the evolution of that behavior. More generally, facts about actual human behavior may be highly relevant to normative issues in law and to the effective design of legal structures. In contrast, facts about the evolution of those behaviors, even if they could be established, will have little or no relevance to normative legal issues.

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