In a previous JOT, I wrote that private property is deeply ingrained not only in our liberal world, but also in our DNA. In Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness, Aaron Schwabach provides important evidence of the latter fact, arguing that one finds those biological-behavioral origins in the “innate urge to exclude.” (P. 190.)
While the right to exclude is always found in law, this must be distinguished from our “proprietary instinct: The[]…innate urge to say ‘this thing is mine, and no one can use it unless I let them.’” (P. 191.) Schwabach calls this, simply, “innate property.” (P. 190.)
Schwabach deploys innate property to make sense of disagreements over property, especially those concerning limitations placed upon the exercise of the power conferred by property which “are almost always poorly received by…property owners.” (P. 191.) Schwabach argues that such disputes arise as a product of greater or lesser congruence between innate property and the formal system of property. At one end of a “continuum of congruence” exists greater correspondence between innate urge and law. The disagreement that arises when there is relatively more congruence involves the actual allocation of goods and resources. In contrast, when there is less congruence, the disagreement that arises tends to concern the underlying legal regime that produces unequal allocations.
Real and personal property exhibit the greatest congruence. With real property, the meaning of exclusion is obvious to both the person and to the law. For example, one can erect a fence around land, either notionally or with an actual fence, and create a barrier to those wishing to enter the land. Similarly, with personal property, the boundaries are almost as clear—one requires permission to use the things of another.
Yet, notwithstanding substantial congruence, our innate urge “exists independently from, and even in the absence of, any rights arising from the law” or, at the very least “the behavior patterns formed and socially reinforced over thousands of years have either supplemented or supplanted that instinct.” (Pp. 192, 195.) In the case of real property, a succinct statement summarises our attitude: that which “I occupy and use is mine, and my family’s.” (P. 194.) Similarly, with personal property, consider items in a shopping cart prior to purchase. Legally, they are still the property of the supermarket; however, those who place items in the shopping cart with the intent to purchase view the items as their own. We find, then, in the case of both chattels and of land, that disagreements arise over the allocation of those resources rather than the legal regime producing that distribution.
Intellectual property—principally encompassing control of the right to make copies of a work or mark, or to manufacture or make use of one’s invention—displays a clear, and uniquely human, behavioral source: “the expression of an idea belongs, in some way, to the person expressing it.” (P. 196.) That would be unproblematic until “most people live in a world of owned content”, as we do. (P. 196.)
Those who own content in such a world tend to establish their own use rules which bear only minimal correspondence to existing copyright law. Inequity in protection that arises as a consequence of limited correspondence is “exacerbated by the fact that the tellers of stories based on proprietary characters are disproportionately likely to be women, nonbinary, trans, genderqueer, or otherwise disempowered by traditional structures of intellectual property ownership.” (P. 197.)
Unlike the case of chattels and land, where differences are economic, “the inequalities in the distribution of intellectual property…are fundamentally legal: that is, they result from law’s recognition of certain forms of intellectual property to the exclusion of others.” (P. 198.)
Limited recognition of property in person and reputation amplifies inequity; liberal law accords less ownership in our own bodies than it does to chattels, land, or ideas. There may, of course, be good reasons for prohibiting ownership in our own body: “It prevents the poor from being transformed into reservoirs of spare parts for the rich by the inequities of an untrammeled market-based economy in conditions of high economic inequality.”
More often, though, “the general reluctance to recognize the body as property leads to absurd and tragic results in some cases, when patients whose genomes have made them valuable to medical researchers are unable to profit from the results of that research.” (P. 200.) Further examples include: when, as in Dobbs v. Jackson Women’s Health Organization, the law “den[ies] basic bodily autonomy to [women]”; or when the refusal to provide proprietary protection to reputation means that “[o]nly the famous…are protected.” (P. 202.)
What Schwabach reveals in this penetrating piece we might also call the behavioral trap: try as we might, the formal law of property can never fully escape the innate urge to exclude. And this analysis carries deep significance for law reform. If we seek the modification of private property—either: (1) to reinforce its justification and so public acceptance, or (2) to implement a more egalitarian allocation of power over goods and resources, if not of goods and resources themselves, we need to know how people will react to such changes.
If people push back against the formal content and structure of property, reform will be difficult, if not impossible, to sustain. We need to know why people might push back before we can embark on a project of reform.
Schwabach shows us that people push back against reform because they act from within a behavioral trap set by innate property. People push back, simply, because lawmakers fail to understand and account for the continuum of congruence.
As Schwabach writes “behavior…shapes property law” and, as such, “[w]hile economic injustice and maldistribution of…wealth…are severe problems causing widespread suffering, they come about not from a failure of law to incorporate its behavioral roots, but from the hierarchical nature of human societies and the natural human tendency to abuse power for self-enrichment.” This can result, especially where there is limited congruence, in law “representing [only] the interest[s] that those at the top of the pyramid have in controlling the bodies and selves of those less powerful.” (P. 203.)
