Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness

Property law is, in some areas, dangerously out of step with property expectations. Property—the idea that a place, object, or idea can belong to a person—is at the root of the world’s economies and thus also at the root of much of its laws. Property is neither solely a creature of positive law, nor of some abstract natural law with a moral underpinning, but rather may be biologically determined, much as Noam Chomsky proposed for languages in Aspects of the Theory of Syntax.1 The idea that ownership is at least behaviorally, and perhaps to some extent instinctively, determined has been extensively explored in academic literature2 and in popular works including Michael Heller’s and James Saltzman’s recent bestseller Mine!3 This Article takes a broad look at the possible biologically or behaviorally determined origins of personal, real, and intellectual property, as well as property in one’s person and reputation. The legal system’s treatment of these four categories of property spans a spectrum. The treatment of property in chattels is most congruent with behavioral norms. The treatment of real property is still mostly congruent, while the treatment of intellectual property is sporadically congruent and the treatment of property in one’s person and reputation are not congruent at all. This lack of congruence inevitably creates tension. Where there is high congruence, as with personal and real property, discontent focuses on the allocation of property rather than on its fundamental nature. Where there is less congruence, as in the cases of intellectual property and especially one’s person and reputation, the underlying legitimacy of the legal regime is called into question. Part I of this article looks at the right to exclude, and Parts II through V look at the nature of the innate urge to exclude for each of these four categories of property in turn