Essay evolutionary theory and the origin of property rights

Cornell Law Review

Volumn 95, Issue 1, 2009, Pages 139-159

  Krier, James E ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 73949120483     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (154)

1. Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. PAPERS & PROC. 347 (1967).
2. Thomas W. Merrill, Introduction: The Demsetz Thesis and the Evolution of Property Rights, 31 J. LEGAL STUD. S331, S331 (2002);
3. see also id. at S333, where Merrill lists the shortcomings of Demsetz's article. We will get to them shortly.
4. Demsetz, supra note 1, at 350.
5. See, e.g., id. at 350 (asserting that property rights develop when the gains thus achieved become larger than the costs thus entailed);
6. id. at 353 (discussing "the value and cost of establishing" property rights). While Demsetz argued that costs and benefits affected the development of property rights, he believed that community preferences also had an impact, especially as to the "form" of the rights.
7. Id. at 350, 354. He pictured three "idealized forms of ownership" - communal, private, and state.
8. Id. at 354. He took the first to be ownership by all members of a community and the last to mean ownership by a governing authority, such as the state, a village, and so forth. As to private ownership, he usually took it to mean ownership by a single individual, in severalty.
9. See Demsetz, supra note 1, at 351 n.3 (citing Eleanor Leacock, The Montagnais "Hunting Territory" and the Fur Trade, AM. ANTHROPOLOGIST, Oct 1954, at 1). As Demsetz noted, Leacock was in essence building upon, and to some extent disagreeing with, an earlier work, Frank G. Speck, Basis of American Indian Ownership of the Land, OLD PENN WKLY. REV., Jan. 16, 1915, at 491.
10. Demsetz, supra note 1, at 351-53. Regarding trespass, Demsetz misread the evidence. Leacock's memoir emphasized that trespass meant one thing only, namely an intrusion arising "when hunting for meat or fur to sell⋯. [A] man finding himself in need of food on another's land may kill the beaver - even all the beavers in a lodge - although he cannot kill them to sell the fur." Leacock, supra note 5, at 2 (footnote omitted). Notice the perverse incentive that resulted from this narrow prohibition on trespass: tribe members could use their own hunting territories to hunt beaver for sale and use their neighbors' hunting territories to hunt beaver for private consumption.
11. See THRÁINN EGGERTSSON, ECONOMIC BEHAVIOR AND INSTITUTIONS 251-52 (1990)
12. (discussing John C. McManus, An Economic Analysis of Indian Behavior in the North American Fur Trade, 32 J. ECON. HIST. 36 (1972)). McManus learned from historians of the fur trade "that beaver populations were sharply reduced after the introduction of the fur trade into an area," McManus, supra, at 39, and that the Hudson Bay Company, the only buyer of furs for a time, had to take its own measures to conserve the beaver population,
13. id. at 46. He attributed the overhunting of beaver, in part, to the narrow prohibition on trespass discussed supra note 6, which, in his view, had been adopted to provide a form of social insurance against threats of starvation.
14. Id. at 51.
15. See Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453, S457 n.9 (2002) (noting that the "problem of overuse characteristic of a commons was first systematically studied" in 1911, citing literature). But one can go back much further, to Aristotle and Aquinas, for instance, both of whom understood that common ownership promotes not just overuse of the resource in question but also underproduction.
16. See, e.g., ARISTOTLE, POLITICS, bk. 2, pt. 5, at 1262-64 (Trevor J. Saunders trans., Oxford Univ. Press 1995) (c. 350 B.C.);
17. 2 THOMAS AQUINAS, SUMMA THEOLOGICA, IIa, IIae, Q. 66, art. 2 (Fathers of the English Dominican Province trans., 2d & rev. ed. 1920) (c. 1265-74).
18. Demsetz's argument built on R. H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960), which demonstrated that in the absence of transaction costs, all spillover effects of an activity will be taken into account through negotiations among the affected parties.
19. Hume seems to have anticipated Demsetz's point by several centuries. See DAVID HUME, A TREATISE OF HUMAN NATURE, bk. 3, pt. 2, § 7, at 538 (L.A. Selby-Bigge ed., Oxford Univ. Press 2d ed. 1978) (1740): Two neighbours may agree to drain a meadow, which they possess in common; because 'tis easy for them to know each others mind; and each must perceive, that the immediate consequence of his failing in his part, is, the abandoning the whole project. But 'tis very difficult, and indeed impossible, that a thousand persons shou'd agree in any such action; it being difficult for them to concert so complicated a design, and still more difficult for them to execute it; while each seeks a pretext to free himself of the trouble and expence, and wou'd lay the whole burden on others.
20. I note in passing the oddness of Demsetz citing the development of Indian hunting territories as a relevant example of his argument. Those hunting territories were held by families, not single individuals, and family ownership could give rise to high transaction costs even if the owners were few in number, thanks especially to opportunistic behavior (freeriders, holdouts) that provokes costly haggling, as in bilateral monopoly situations. This is why modern property law grants tenants in common and joint tenants the unilateral right to partition their holdings and convert them into ownership in severalty. In this connection, a close reading of the anthropological evidence cited by Demsetz suggests that the family territories were eventually partitioned off to individual family members - perhaps for the reasons just suggested. See Leacock, supra note 5, at 1 (noting that there was "continual readjustment of band lands to fit the needs of band members. Each Indian has a right to trapping lands of his own ⋯." (emphasis added) (footnote omitted)). That the hunting territories were, prior to partition, a commons, though one limited to family members (which could be few or many), might be another reason the beaver stock was overhunted, as discussed supra note 7.
21. Demsetz, supra note 1, at 350. In a later article, Demsetz asserted that "a right-defining and conflict-resolving institution, such as the court system, the legislature, or some community authority, is inevitably part of any property right system."
22. Harold Demsetz, Property Rights, in 3 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 144, 144 (Peter Newman ed., 1998).
23. Merrill, supra note 2, at S333 (quoting Demsetz, supra note 1, at 350).
24. Harold Demsetz, Frischmann's View of "Toward a Theory of Property Rights", 4 REV. L. & ECON. 127, 128 (2008). I thank Brett Frischmann for calling this item to my attention.
25. Id.
26. Id. at 129. It is strange that Demsetz waited so long to set the record straight. He had a perfect opportunity to do so at a 2001 conference convened particularly to reexamine Toward a Theory of Property Rights. The title of the conference was "The Evolution of Property Rights." Conference papers were subsequently published in Symposium, The Evolution of Property Rights, 31 J. LEGAL STUD. S331 (2002). Virtually all of the papers take Demsetz's article as an evolutionary account. Demsetz himself participated in the conference and contributed a paper.
27. See Harold Demsetz, Toward a Theory of Property Rights II: The Competition Between Private and Collective Ownership, 31 J. LEGAL STUD. S653 (2002). Nowhere in that paper did he comment on the misapprehensions of his work.
28. JEREMY BENTHAM, THE THEORY OF LEGISLATION 112 (Richard Hildreth trans., 1975) (1802);
29. see also id. at 113 ("Property and law are born together, and the together. Before laws were made there was no property; take away laws, and property ceases.").
30. See, e.g., SAMUEL BOWLES, M ICROECONOMICS: BEHAVIOR, INSTITUTIONS, AND EVOLUTION (2004). Bowles points out that individual claims on property preceded the development of agriculture about eleven millennia ago and became more extensive thereafter; the rights "emerged and proliferated without the assistance of states or other centralized enforcement agencies."
31. Id. at 382. Many thousands of years later, "centralized forms of punishment and enforcement of property rights began to emerge as a new form of organization." Id.
32. See discussion supra note 4.
33. See Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems, 83 MINN. L. REV. 129, 155 (1998) (referring to "commons on the inside, property on the outside"). This usage is consistent with everyday lay usage. Suppose you and I own Ouracre as tenants in common. Is it not our private property? And so too if we join with twenty more, or one hundred, or one thousand? Still, some property scholars subscribe to a view that "private property" refers only to ownership by "one person or a small number of persons."
34. See, e.g., Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 733 (1998) (using that definition). I regard this as not quite correct, though I suppose it matters little so long as everybody agrees on what everybody is talking about. But, as I have already suggested, everybody does not; hence the muddle.
35. On the centrality of the exclusion right to the conception of property, see, for example, Merrill, supra note 20 passim.
36. See, e.g., 5 OXFORD ENGLISH DICTIONARY 476-77 (2d ed. 1989) (indicating sixteen meanings within three general significative categories).
37. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 19 (1974);
38. see also BOWLES, supra note 18, at 57 (using the same terminology). Nozick cited a number of examples of invisible-hand explanations, most of which would be unfamiliar to legal scholars.
39. See NOZICK, supra, at 20-21. An example he did not provide, but which might be familiar, is the body of literature arguing that common law rules are pushed in the direction of efficiency because inefficient rules are litigated more often man efficient ones, thus increasing the probability that the inefficient rules will be filtered out over time. For discussion and criticism, see RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 604 (7th ed. 2007).
40. See, e.g., Jack Hirshleifer, Evolutionary Models in Economics and Law: Cooperation Versus Conflict Strategies, 4 RES. L. & ECON. 1, 10 (1982) ("The inventor of the bow had an intention, but it was only to help himself or his band; the spread of a new technique of hunting ⋯ was surely beyond his purpose.").
41. ADAM SMITH, THE WEALTH OF NATIONS 423 (Edwin Cannan ed., Random House 1937) (1776);
42. see also, e.g., Robert Sugden, Spontaneous Order, in THE NEW PALGRAVE DUGTIONARV OF ECONOMICS AND THE LAW, supra note 12, at 485, 493 (contrasting "individual motivation and unintended collective consequence").
43. See CHARLES DARWIN, ON THE ORIGIN OF SPECIES BY MEANS OF NATURAL SELECTION (6th rev. ed. 1888).
44. See PERCIVAL DAVIS & DEAN H. KENYON, OF PANDAS AND PEOPLE: THE CENTRAL QUESTION OF BIOLOGICAL ORIGINS (1989), for the first comprehensive (and controversial) account of Intelligent Design in a high-school textbook explaining the origin of new organisms.
45. See, e.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991) (discussing the governance of relations among neighboring cattle ranchers by reference to informal norms and developing a theory of norm formation);
46. Richard A. Epstein, The Allocation of the Commons: Parking on Public Roads, 31 J. LEGAL STUD. S515, S528-33 (2002) (discussing the spontaneous emergence of snow-parking property rights in contemporary Chicago);
47. Katrina Miriam Wyman, From Fur to Fish: Reconsidering the Evolution of Private Property, 80 N.Y.U. L. REV. 117 (2005) (presenting a case study that takes account of the role of government and the political process in the development of property rights).
48. See supra text accompanying note 17.
49. Demsetz, supra note 1, at 350.
50. See supra text accompanying note 12.
51. See supra note 12 and accompanying text
52. Demsetz, supra note 1, at 350.
53. See id. (asserting that changes in property rights result from "the desires of the interacting persons").
54. Id. at 352.
55. Id. at 353 n.7.
56. RICHARD DAWKINS, THE ANCESTOR'S TALE: A PILGRIMAGE TO THE DAWN OF EVOLUTION 602 (2004).
57. Unless, of course, the account obviously takes for granted the existence of the designer and is interested only in how things developed from there on. A study of how the Federal Communications Commission allocates spectrum would not be rightly criticized for failing to explain how the Commission came to be created, how the authority that created it came to be authorized, etc.
58. See, e.g., James E. Krier, The Tragedy of the Commons, Part Two, 15 HARV. J.L. & PUB. POL'V 325, 337-39 (1992).
59. "Kicking [the problem] upstairs," to use Carol Rose's nice expression. See Carol M. Rose, Evolution of Property Rights, in 2 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW, supra note 12, at 93, 94.
60. A governing authority might have come into power by force, but still the collective action problem persists; the challenge becomes one of explaining how any group managed to organize itself into a force.
61. See, e.g., Stuart Banner, Transitions Between Property Regimes, 31 J. LEGAL STUD. S359, S362 n.8 (2002) (collecting citations);
62. Krier, supra note 39, at 338 n.44 (collecting citations);
63. see also EGGERTSSON, supra note 7, at 254 (discussing the failure of various accounts to "deal with the free-riding problems that plague group decision");
64. id. at 250 (finding this a characteristic feature of the "naive theory of property rights," which "seek[s] to explain the development of exclusive property rights without explicitly modeling social and political institutions. Demsetz's 1967 paper ⋯ is the classic reference for the naive theory of property rights." (emphasis omitted));
65. ITAI SEKED, THE POLITICAL INSTITUTION OF PRIVATE PROPERTY 16 (1997) (observing that the flaw is typical of social contract accounts);
66. id. at 34-48 (discussing examples).
67. See Rose, supra note 40, at 95 (referring to the argument and noting some of the leading literature).
68. See THOMAS HOBBES, LEVIATHAN (Michael Oakeshott ed., Oxford Univ. Press 1960) (1651);
69. JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge Univ. Press 1960) (1690).
70. Rose, supra note 40, at 94.
71. HOBBES, supra note 44, ch. 13, at 81-84.
72. LOCKE, supra note 44, bk. 2, § 27, at 306;
73. see also id. bk. 2, § 28, at 307 ("'[T]is the taking any part of what is common, and removing it out of the state Nature leaves it in, which begins the Property ⋯."). Locke's view is reflected in the rule of capture familiar to modern property law, according to which wild animals in their natural condition belong to the first person to kill them, capture them in hand, trap them, or mortally wound them.
74. See, e.g., Pierson v. Post, 3 Cai. 175, 179 (N.Y. Sup. Ct. 1805).
75. The dissent in Pierson argued for an alternative rule whereby ownership would vest in the first person to pursue with a reasonable prospect of capture, id. at 182, and Locke might well have agreed.
76. See LOCKE, supra note 44, bk. 2, § 30, at 308 ("[T]he Hare that any one is Hunting, is thought his who pursues her during the Chase. For being a Beast that is still looked upon as common,⋯ whoever has imploy'd so much labour about any of that kind, as to find and pursue her, has thereby removed her from the state of Nature, wherein she was common, and hath begun a Property.").
77. LOCKE, supra note 44, bk. 2, § 17, at 297.
78. HOBBES, supra note 44, ch. 15, at 94 (need for a governing authority), ch. 18, at 109-13 (governing authority established by mutual agreement), ch. 18, at 112 (power of governing authority to make and enforce rules);
79. LOCKE, supra note 44, §§ 18-20, at 297-300 (need for a governing authority), § 211, at 424 (governing authority established by mutual agreement), § 222, at 430 (power of governing authority to make "Rules set as Guards and Fences to the Properties of all the Members of the Society").
80. See supra text accompanying notes 35-36.
81. Demsetz had to assume such a practice or his argument would have lost its anchor. If sharing persisted after severance, incentives to overwork the common stock - a central premise in the logic of Demsetz's account - would be much reduced, replaced by the problem of shirking in the maintenance of the common resources.
82. HUME, supra note 10, bk. 3, pt. 2, § 2, at 490.
83. Id.
84. See Robert Sugden, Conventions, in 1 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW, supra note 12, at 453, 454.
85. See SENED, supra note 42, at 19 ("Hume's logical analysis preceded by two centuries similar contemporary game theoretic arguments ⋯."). Sened probably had in mind evolutionary game theory in particular. Evolutionary game theory is an instance of non-cooperative game theory; it focuses on the formation of norms and conventions, meaning patterns of behavior that emerge spontaneously and are self-enforcing. For a quick overview,
86. see George J. Mailath, Evolutionary Game Theory, in 2 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW, supra note 12, at 84, 84. As applied to humans, the approach "stresses rule-of-thumb behaviors that are updated by a backward-looking learning process, that is, in light of one's own or ohters' recent experience."
87. BOWLES, supra note 18, at 33. It assumes that individuals are boundedly rational but not quite so cognitively gifted as the people who populate classical game theory.
88. BOWLES, supra note 18, at 43.
89. HUME, supra note 10, bk. 3, pt. 2, § 2, at 487-88.
90. Id. at 490.
91. Id. at 489.
92. Id. at 490.
93. Id. bk. 2, pt. 1, § 12, at 326.
94. See generally Hanna Kokko et al., From Hawks and Doves to Self-Consistent Games of Territorial Behavior, 167 AM. NATURALIST 901, 901 (2006) ("The animal kingdom provides coundess examples of the 'prior-residence effect'⋯."). For a very accessible introductory discussion, see JOHN ALCOCK, ANIMAL BEHAVIOR: AN EVOLUTIONARY APPROACH 264-73 (8th ed. 2005).
95. JOHN MAYNARD SMITH, EVOLUTION AND THE THEORY OF GAMES (1982). Much of Maynard Smith's discussion in the book owes to earlier work by him and others dating back several decades.
96. Id. at 11-12.
97. Id. at 22.
98. Maynard Smith's analysis and conclusions, given his assumptions, appear to be uncontested. For the mathematical details of his treatment, see id. at 11-23, 94-96;
99. Hirsh-leifer, supra note 24, at 20-24.
100. Chris Meredith, Tit for Tat, http://www.abc.net.au/science/slab/tittat/ story.htm (last visited Sept. 7, 2009).
101. MAYNARD SMITH, supra note 63, at 23 (citation and internal quotation marks omitted).
102. Id. at 10.
103. Id. at 23. In a case where possession of a territory does confer an actual advantage in defending it, or where possessors are commonly larger or stronger, the asymmetry is said to be correlated. "An uncorrelated strategy can be evolutionarily stable even when there is a correlated strategy also available." Jeffrey Evans Stake, The Property "Instinct", 359 PHIL. TRANSACTIONS: BIOLOGICAL SCI. 1763, 1764 (2004) (citing Peter Hammerstein, The Role of Asymmetries in Animal Contests, 29 ANIMAL BEHAV. 193 (1981)). Moreover, a strategy might be correlated early on - because possession is sometimes a defensive advantage, or because stronger individuals generally appear as first occupants - yet become uncorrelated later on, as the mere fact of possession becomes a proxy for advantages that in fact no longer hold. Just as the Bourgeois strategy is an ESS, so is its opposite - if possessor, play Dove, if intruder, play Hawk. This ESS is regarded as "paradoxical" because evolutionary theory would seem to rule it out. Animals behaving in anti-Bourgeois fashion would end up constantly moving around, looking for territory and occupying it, only to be quickly displaced. There would be no time for breeding. Maynard Smith was aware of the problem (and of the case of a type of spider that seems to exhibit the paradoxical strategy).
104. See MAYNARD SMITH, supra note 63, at 96-97. A resolution of the paradox is suggested by Kokko et al., supra note 62, at 909.
105. Maynard Smith's model shows that the Bourgeois strategy can evolve, not that it invariably will. See Hirshleifer, supra note 24, at 23 (asserting that the development of the strategy depends on individuals "able to distinguish between owner and interloper situations, and ⋯ able to execute the appropriate behavioral maneuvers of both Hawk and Dove"). Still, Maynard Smith's analysis "shows that respect for ownership is a possible evolutionary emergence that need not call upon any force other than private advantage. ⋯ On the human level, a corresponding environmental situation might be expected to lead to a 'social ethic' supporting a system of property rights."
106. Id. (citation omitted).
107. ROBERT SUGDEN, THE ECONOMICS OF RIGHTS, CO-OPERATION AND WELFARE (Palgrave Macmillan 2004) (1986). The second edition is virtually the same as the first, save for a new Introduction and Afterword.
108. Id. at 62. Despite the substitution, Sugden believed that much of the biological analysis "can be carried over to the human case."
109. Id. He expanded on this point later, noting among other tilings that "[s]ince so many animals do have an innate sense of possession and territory, it would not be surprising if this was true for our species."
110. Id. at 107. To the same effect,
111. see Jack Hirshleifer, Privacy: Its Origin, Function, and Future, 9 J. LEGAL STUD. 649, 657 (1980) (suggesting that evolution may have led to a "hard-wired" defensive attitude regarding possessions and a deferential attitude regarding the possessions of others);
112. Stake, supra note 70, at 1763 (arguing that humans may share a "hard-wired" property "instinct"). Both Hirshleifer and Stake discuss the Maynard Smith model and consider its relevance to the development of property and other rights. A commentary on Hirshleifer also briefly discusses respect for possession from the standpoint of evolutionary theory.
113. See Richard A. Epstein, A Taste far Privacy? Evolution and the Emergence of a Naturalistic Ethic, 9 J. LEGAL STUD. 665, 672-73 (1980).
114. Sugden considered several other games as well (the war-of-attrition game - also considered by Maynard Smith - the division game, and games of commitment). I omit that part of his discussion because he found the other games led to results matching those of the Hawk-Dove-Bourgeois game. For the curious, the relevant pages are SUGDEN, supra note 72, at 65-86.
115. Several commentators have argued that deference to possessors might have evolved because of an endowment effect, according to which an individual puts a systematically higher value on something possessed than on an opportunity to possess the very same thing. See Herbert Gintis, The Evolution of Private Property, 64 J. ECON. BEHAV. & ORG. 1, passim (2007);
116. Stake, supra note 70, at 1767. The argument is plausible, but so is its opposite. Rather than generating the convention of deference to possessors, the endowment effect could just as well owe to it, in that deference to possession adds to the value of possession.
117. SUGDEN, supra note 72, at 97 (discussing HUME, supra note 10, bk. 3, pt 2, § 3, at 504 n.1: "As property forms a relation betwixt a person and an object, 'tis natural to found it on some preceding relation ⋯."). Hume extended the convention of possession to property acquired by prescription, accession, and succession.
118. See id. bk. 3, pt. 2, § 3, at 509-13.
119. In this connection, it is interesting to recall that the majority decision in Pierson v. Post, discussed supra note 47, opted for first capture of a wild animal, as opposed to the dissent's approach of first pursuit, as the act needed to give rise to ownership. The court selected capture "for the sake of certainty," noting that the alternative of first pursuit, given its ambiguity, "would prove a fertile source of quarrels and litigation." 3 Cai. 175, 179 (N.Y. Sup. Ct. 1805).
120. See SUGDEN, supra note 72, at 100-01.
121. Id. at 107;
122. see also supra note 73 and accompanying text.
123. See supra text accompanying notes 65-66.
124. MAYNARD SMITH, supra note 63, at 95.
125. See Alan Grafen, The Logic of Divisively Asymmetric Contests: Respect for Ownership and the Desperado Effect, 35 ANIMAL BEHAV. 462, 463 (1987);
126. see also MAYNARD SMITH, supra note 63, at 95 (stating that when v > c, "it is worth risking injury to gain the resource" and "ownership will be ignored").
127. HUME, supra note 10, bk. 3, pt. 2, § 8, at 539.
128. There is some suggestion in the literature that third-party enforcement might develop spontaneously under certain conditions, thanks to the appearance of punishers who keep defectors in line. Models leading to this result can be found in BOWLES, supra note 18, at 381-90, and Christoph Hauert et al.,
129. Via Freedom to Coercion: The Emergence of Costly Punishment, 316 SCI. 1905 (2007).
130. See supra text accompanying notes 76-77. It is worth noting that while a convention of deference to possessors can account for only simple property rules, still the simple rules can amount to the rights to exclude, use, and transfer, which are usually regarded as the core elements of property. If there is a practice of deferring to possessors, that is equivalent to saying that possessors are empowered to exclude, to use what they possess, and to transfer their rights (the transferee becomes the new possessor and hence enjoys deference). All of this follows especially if possession earns deference even when actual constant physical possession is not required, on which see infra notes 92-93 and accompanying text
131. See supra note 6 and accompanying text.
132. Yet it has been largely ignored in the legal literature on the evolution of property rights, seldom earning more than a nod, if that. The few exceptions to that generalization have been noted in our discussion.
133. The abbreviation B.P., commonly used in evolutionary studies, refers to "before present," where "present" is taken to be the year 1950. On the emergence of Homo, see, for example, EDWARD O. WILSON, SOCIOBIOLOGY: THE NEW SYNTHESIS 564-65 (25th anniv. ed. 2000).
134. See, e.g., id. at 564-69 (briefly discussing the literature);
135. Jonathan Haidt et al., The New Synthesis in Moral Psychology, 316 SCI. 998 (2007).
136. See, e.g., WILSON, supra note 88, at 564-69.
137. Koichi Kitanishi, Food Sharing Among the Aka Hunter-Gatherers in Northeastern Congo, 25 AFR. STUDY MONOGRAPHS SUPPLEMENT 3, 5 (1998), states that "land and its resources were communally owned, whereas tools, weapon[s] and procured food were owned individually in hunter-gatherer societies."
138. Id. (citation omitted). He adds, however, that "ownership" of food carried with it an obligation to share by way of obligatory gifts.
139. See id. at 22-24.
140. See BOWLES, supra note 18, at 389-90. Recall Demsetz's mention of Indians marking their hunting territories (which were in fixed locations).
141. See supra text accompanying note 35. Elsewhere he notes that private rights in hunting territories would not be worthwhile in the case of grazing animals that roam over large tracts of land. Demsetz, supra note 1, at 353.
142. See BOWLES, supra note 18, at 388-90. This "constructive possession" effect could have reached beyond land to personal items, such as farming tools or crops stored on the farm plot.
143. See supra text accompanying note 35. My reference to "permanent" and "transient" property echoes the words of another classic figure in the literature on the development of property rights.
144. *3-7. Blackstone used those adjectives in stating his view of how property developed over time: First there was an open commons; a commoner who took from it acquired "a kind of transient property" as to which the "right of possession continued for the same time only that the act of possession lasted."
145. *3. Then, later, there developed "permanent" rights that did not depend on constant physical possession.
146. *4. These permanent rights were first in personal items such as food and clothing. Eventually, though, land came to be treated in the same fashion, coincident with the rise of agriculture.
147. *5-7. Finally, the government entered the picture to secure rights.
148. *8. So far as I am concerned, Blackstone's account was extraordinarily prescient, anticipating modern accounts (and not just mine) of the evolution of property rights by more than two hundred years.
149. WILSON, supra note 88, at 569.
150. See supra text accompanying notes 42-43.
151. See Robert L. Carneiro, A Theory of the Origin of the State, 169 SCI. 733 (1970) (elaborating on circumscription theory as an explanation for the origin of a state).
152. See, e.g., Kingston-upon-Hull v. Horner, 98 Eng. Rep. 807, 815 (1774) (Lord Mansfield observing: "Possession is very strong; rather more than nine points of the law.");
153. Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221 (1979);
154. Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985).