Abstract

This article contributes to the outline of the origin of property rights set forth by Professor Krier, by more fully analyzing the role of evolutionary biology in the development of property rights. This article focuses on the pre-political formation of property ownership and the initial formation of concepts of property and ownership. Expanding on Krier’s analysis, this article considers the implications of this evolutionary foundation on our modern property regime, particularly given the growing chasm between the wealthy on one side and the poor and middle-class on the other. Part II discusses the growing disparity of wealth in America and our property system’s failure to respond to this inequity. While current debates among property scholars have attempted to address concerns of inequality, Part III discusses how scholars have inadequately analyzed the origin of the rights that accompany ownership. Part IV explores the evolution of property rights in nature. The property rights displayed by animals in the wild mirror many of our common law property rules, and Part V argues that our common law property system is based on the same unconscious evolutionary strategy that causes the deference to ownership that is displayed in animal behavior. Part VI discusses what this evolutionary foundation to our default property rules means for our modern property regime.