This action might not be possible to undo. Are you sure you want to continue?
Property and Personhood Author(s): Margaret Jane Radin Source: Stanford Law Review, Vol. 34, No. 5 (May, 1982), pp. 957-1015 Published by: Stanford Law Review Stable URL: http://www.jstor.org/stable/1228541 . Accessed: 28/12/2013 11:44
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact email@example.com.
Stanford Law Review is collaborating with JSTOR to digitize, preserve and extend access to Stanford Law Review.
This content downloaded from 22.214.171.124 on Sat, 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions
and Personhood* Property
This articleexploresthe relationshipbetween propertyand personhood,a relationshipthat has commonlybeen both ignored and the pertakenforgrantedin legal thought. The premiseunderlying sonhood perspectiveis that to achieve proper self-development-to be a person-an individual needs some controlover resourcesin the externalenvironment.The necessaryassurances of controltake the formof property rights. Although explicit elaboration of this perthe personhood spectiveis wantingin modern writingon property, is oftenimplicitin the connectionsthat courtsand comperspective findbetween property and privacy1or between property mentators and liberty.2In addition to its power to explain certain aspects of schemesof property the personhoodperspective existing entitlement, can also serveas an explicitsource of values formaking moral disin property tinctions disputes,and hence foreither justifying or critilaw. cizing current Almostany theoryof private propertyrightscan be referred to some notionof personhood. The theorymust address the rightsaccruingto individualpersons,and therefore necessarily implicatesthe nature of the entityto which they accrue. It is not surprising that has played a part in property personhood theoriesall along the political spectrum.Conservatives relyon an absolute conceptionof prop* i 1982 by MargaretJane Radin of Law, University of SouthernCalifornia Law Center. For generouscritit Professor cism of earlier draftsof this article, and generous sharing of knowledge and insight,I am to a community grateful of scholarstoo numerous to name. This article especially benefited fromintenseand wide-ranging collegial discussionin the facultyworkshopat the University of SouthernCalifornia Law Center. 1. The fourth amendment,which protectsindividuals' "houses, papers and effects"(as well as "persons") from unreasonablesearch and seizure,is interpreted by the Supreme Court as a form of privacyprotection. Katz v. United States, 389 U.S. 347 (1967). See textaccompanyingnotes 134-62 infra. 2. "[T]he dichotomybetween personal libertiesand propertyrightsis a false one. ... In fact,a fundamentalinterdependenceexistsbetween the personal rightto libertyand the personal rightin property. Neither could have meaning without the other. That rightsin property are basic civil rights has long been recognized." Lynch v. Household Finance Corp.,
405 U.S. 538,552 (1972).
This content downloaded from 126.96.36.199 on Sat, 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions
ertyas sacred to personal autonomy. Communitariansbelieve that changingconceptionsof property reflect and shape the changing natureof personsand communities.Welfarerightsliberalsfindentitlement to a minimal level of resources necessary to the dignity of personseven when the entitlement mustcurtailthe property of rights others. This article does not emphasize how the notion of perin the mostprevalenttraditionallines of liberal sonhoodmightfigure property theory: the Lockean labor-desert which focuseson theory, individualautonomy,or the utilitariantheory, which focuseson welfare maximization.3 It ratherattemptsto clarifya third strand of liberal property theorythat focuseson personal embodimentor selfin terms of "things." This "personhood perspective" constitution corresponds to, or is the dominantpremiseof,the so-called personality theoryof property.Two main functions of any propertytheory are the generaljustification of property rightsand theirdelineation. My purposehere is to considerthesetwo functions fromthe perspective of personhood. But since a systematicgeneral justificationof property rightsinvolvesother concernsnot within the scope of this article,I will concentrateon the latter function: exploringhow the personhoodperspective can help decide specificdisputesbetween rival claimants. Positiveanalysiswill attemptto demonstrate that the personhoodperspectivehas been reflectedin some past legal decisions; normativeanalysiswill attemptto show how some legal decisions are justifiedin light of the personhood perspectiveand how some are not. In what follows I shall discuss the personhood perspective as Hegel developed it in Philosophy ofRight ,4 trace some of its later per3. The personalitytheory,the labor theory,and the utilitariantheoryare respectively associated with Hegel, Locke, and Bentham. See G. HEGEL, PHILOSOPHY OF RIGHT (T. Knox trans. 1821);J.LOCKE, SECOND TREATISE OF GOVERNMENT (New York 1952) (6th ed. London 1764); J. BENTHAM, THEORY OF LEGISLATION (R. Hildreth trans. 1840) (1st ed. 1802). The sociobiological/psychological "territorialimperative" theory may be a fourth typestemming roughlyfromDarwin and Freud. See S. FREUD, Ctviltzation and Its Discontents, in 21 STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 111-14 U. Stracheyed. 1964); seegenerally M. LEVINE, PROPERTY AS AN IDEA AND A PROCESS ? l(b)(3), at 66-100 (tentativeed. 1975). Locke's theoryhas long been defended or characterized by modern writersas a labordesert theory. One must somehow deserve to own items mixed with one's labor, rather than simplydissipateone's labor. Se, e.g., R. NOzICK, ANARCHY, STATE AND UTOPIA 175 (1974) (Nozick's example: If I empty a can of tomato juice into the ocean, do I own the ocean?). Bentham's theory has been reincarnated in the economic analysis of law. See, e.g., R. POSNER, ECONOMIC ANALYSIS OF LAW (2d ed. 1977); Demsetz, Toward A Theory ofProperoy Rights,57 AM. ECON. REV. 347 (1967). 4. G. HEGEL, supranote 3.
This content downloaded from 188.8.131.52 on Sat, 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions
and tryto develop a contemporary view usefulin the contextof the American legal system. For instance.or a house. This content downloaded from 5. 387 (1981). & PUB.5 If so. One may gauge the strength or significance of someone'srelationship withan object by the kind of pain that would be occasioned by itsloss. On thisview.These objects are closelybound up with personhoodbecause theyare part of the way we constitute ourselvesas continuing in personalentities the world.33 STAN. Of particularinterest is the way that the personhoodpropertyperspective cuts across many different fieldsof law. The holder typicallywould not thinkabout the object in monetarytermsat all. I.would say that the holder of such an object has a large amount of consumer surplus that would be very difficult to ascertain accurately. AFF. Part IV shows that the personhood perspectiveprovidesa moral basis forprotecting some rightsmore stringently than othersin the contextof a legal system.101 on Sat.May 1982] PROPERTYAND PERSONHOOD 959 mutationsand entanglements with other perspectiveson property. Applyingeconomic reasoningto thingsof high sentimentalvalue presentsdifficulties because such thingsare likelyto representa large proportionof a person's total "wealth." Part III then distinguishes Hegel's conceptofpersonsfrom the intuitive view discussedin Part I. The oppositeof holdingan object that has become a part of one5. L. a different. 1 (1975). Part VI concludes that a right to property for personhood should be recognized. Part II presentsvarious positions on the appropriate definitionof a "person. thoughawkward in thisrealm. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . that particularobject is bound up with the holder. See a/soBaker.if a wedding ring is stolen froma jeweler.Cost-Benefit Analysis ofEntitlement Probems:A Crtique. an heirloom. They may be as different as people are but some common examples might be a wedding ring. The Ideologp oftheEconomic Analysis ofLaw. Part I presentsan intuitivephilosophical outlineofthe personhoodperspective and how it figures in thejustification of propertyrights. PROPERTY FOR PERSONHOOD: AN INTUITIVE VIEW Most people possess certain objects they feel are almost part of themselves. REV.153.13." See Kennedy.an object is closelyrelated to one's personhood if its loss causes pain that cannot be relievedby the object's replacement. as seemingly disparateas criminalprocedureand freedomof expression. Economic language. insurance proceeds can reimburse thejeweler. but identifies some of his insights as usefulin developing the idea of propertyforpersonhood. 5 PHIL.the price of a replacementwill not restorethe status quo-perhaps no amount of money can do so. portrait. but if a wedding ringis stolen from a lovingwearer. Part V surveysa range of legal problems from the viewpoint of propertyfor personhood.
The distinction is not simplybetween consumerpropertyand commercial property. Other examples are the wedding ring in the hands of thejeweler. pots and pans.101 on Sat. But there is something more in an affirmative notion of an individual being bound up with an external"thing. the automobile in the hands of the dealer. not liberty. order to perform This content downloaded from 5. Once we admit that a person can be bound up with an external "thing"in some constitutive sense." but ratheras some positivewill that by acting on the externalworldis constitutive of the person.ifliberty ative freedom.light bulbs-can also be characterized as valued instrumentally.153.. of course. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . The archetypeof such a good is. Neither does libif understoodin the bare sense of freedomfrominterference by erty. it fails to convey this sense of connectionwith the externalworld. Many items-e. lawn mowers. money. While it is likelythat most commercial propertyis not propertyforpersonhood but rather held instrumentally. One holds such an object forpurely instrumental reasons.6 to personhood at all? It may appear Why referthese intuitions could be described as simthat the categoryI call personal property forpersonalautonomyor liberty.or the apartmentin the hands of the commerciallandlord. personhood is the basic concept. or "negcourse. otherswith autonomous choices regardingcontrol of one's external environment. A dollar is worthno more than what one chooses to buy with it." If autonomyis understoodas abstractrationality and responsibility attributedto an individual. ofproperty Property ply a category forpersonal autonomy or libertymight be a class of objects or resourcesnecessaryto be a person or whose absence would hinder the autonomyor libertyattributedto a person.we can argue that by virtueof this connectionthe personshould be accorded broad libertywith respect to controlover that "thing. which is almost always held only to buy other things. I shall call thesetheoreticalopposites that is bound up with a person and propertythat is held property purely instrumentally-personalproperty and fungible property respectively. the land in the hands of the developer.13. but in the related sense that theyare held in a serviceand it is the service that is substantivelyvalued. 34:957 replaceable withothergoods selfis holdingan object that is perfectly of equal marketvalue. not in the same sense as something one holds only forexchange. a great deal of consumers'propertyis also not propertyforpersonhood in the special directsense I am tryingto bring out.then libertycomes closer to capturingthe idea of the self being intimatelybound up with 6.960 STANFORD LAWREVIEW [Vol.g. and one dollar bill is as good as another. Of is viewed not as freedomfrominterference." But here libertyfollowsfromproperty for personhood.
" But thisintuitiveview does not compel the conclusion that propertyfor personhooddeservesmoral recognitionor legal protection. but ratherto be lacking some importantattributeof humanity. TRIBE. 365.13. Se textaccompanying notes 49-73 nfra.7 It intuitively appears that there is such a thing as propertyfor personhoodbecause people become bound up with "things.In this view. To avoid thiscollapse requiresobjective criteriadifferentiating good frombad identification with objects in order to identify a realm of personal propertydeservingrecognition. The problemof bridgingthe gap between subjectiveand objective views of a person is inherentin tryingto accord persons their moral desertsby means of a political system.The historicalimportanceof this distinctionbetween negative and positive freedomis that Hegel's intellectual descendants tend to consider propertyrightsas socially based. 16 POL. The distinction is between conceptionsof negative freedom("freedomfrom"). the relationshipbetween the shoe fetishist and his shoe will not be respected like that between the spouse and her weddingring. Hegel's notion of rights-autonomyor freedomin the positivesense-is logicallybound up with entitlement to externalobjects.because arguablythereis bad as well as good in being bound up with external objects. whereas forHegel it is will.See I.May 1982] PROPERTY AND PERSONWOOD 961 thingsin the externalworld.8 II. 8. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . Se text accompanying notes 41-48 hnfra. 365 (1968) (Hegel was "not an advocate of 'negative freedom' "). Political Freedom and Hegelsan Metaphysics. At the extreme. 9.characteristicof English liberalism. way or to toogreatan extent is damnationas well as salvation.thenpersonalobjects merelyrepresent strongpreferences. The principal difference between the theoriesof Locke and Hegel is that forLocke the source of entitlement is labor. Two CONCEPTS OF LIBERTY (1958).101 on Sat.and positive freedom("freedom to"). THE ROLE OF THE CONCEPT OF PERSON The intuitive view of property forpersonhoodjust stated is wholly subjective: self-identification through objects variesfrom personto person. But if propertyforpersonhood cannot be viewed as other than arbitrary and subjective. AMERICAN CONSTITUTIONAL LAW 889 (1978). BERLIN.153. while Locke's followerstend to remain individualistic. The Lockean individual has a natural rightto property and broad negative freedomregardingthat right. See a/soL.object-fetishism Property as well as moral groundwork.9The necessaryobjective 7. and to argue for their recognitionby the legal systemmight collapse to a simple utilitarianpreferencesumming. typical of Hegel's and othercontinentaltheorists' views. If thereis a traditionalunderstanding that a well-developed person must investherselfto some extent in external objects. anyone who lives only formaterialobjects is considerednot to be a well-developedperson. Indeed. STUD. Berki. the subjective/objective dichotomymay be inherentin the nature of human individ- This content downloaded from 5. thereis no less a traditionalunderstanding thatone should not invest oneselfin thewrong in external objects.
forboth Kant and himselfmerelya philosophical construct forabstractingprinciplesof justice. PHIL. FUNDAMENTAL PRINCIPLES OF THE METAPHYSICS OF MORALS (T. 12.13. "Person" stemsfrom the Latinpersona.Personal in 6 ENCYCLOPEDIA OF PHILOSOPHY 95. 533-35 (1980).personacame to mean otherthings.possessingonly rational autonomy. see Danto. the first conception is of the personas rights-holder. Today it commonlysignifies any human being. Edwards ed. in MORTAL QUES- 10.among a theatricalrole.this Part approaches the problem of developing a standardforrecognizing claims to personal property to by referring the concept of "person" itself. Theories ofthePerson The polymorphous nature of the word "person" inevitablycreates problemsfora moral thesisabout property built upon notionsof personhood. Seegenerally /dentzty. The conception of person I referto in the text as Theogy.talents. (2) an ideal agent of construction of the personaffirmed by the citizensof a well-ordered society. In Roman law. is property while still avoiding ethical subjectivism. THE IDENTITIES OF PERSONS (A. according to Rawls. and (3) an actual citizen in her personal affairs. Id. Perhaps closestto thepersona of Roman law.but ratherby definition excludes the tastes. A. Kantian is. Danto. Persons. If that concept necessarilyincludes then those featurescan determinewhat personal certain features. to scientifictruths of psychology. In thisview. 11. Abbott trans. RAWLS. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . Kantian Constnmctivzsm in Moral 9 J. Taking the latterroute. Rortyed.in ignoranceof their individual particularities. KANT. Recently Rawls has distinguishedthree conceptions of the person: (1) an artificial in the originalposition. For Kant. 515. 1967). 1976) (collectionof conflicting views about criteria forpersonal identity). 1949). I.10 But forphilosophersthe nature of a personhas neverbeen reduced to a generallyaccepted theory. and particular religiousand philosophical commitments.101 on Sat. Penelhum.possessingfullautonomy. This content downloaded from 5.personhoodhas no componentof individual human differences. meaning.and individual histories that differentiate one fromanother. This seems to describethe personsin John Rawls's original position.See T.962 STANFORD LAW REVIEW [Vol.'1 An overviewof theircontinuingdebate suggestsfour main lines of theory.153. See J. NAGEL. and not the same as the notion of person in society or everydaylife. the person is a freeand rationalagent whose existenceis an end in itself. A THEORY OF JUSTICE (1971).who are called upon to develop a social contractto which all would consent purelyon the basis of rationality.13 TIONS 196 (1979). simplyan entitypossessinglegal rightsand duties. supranote 10.'2I shall call Kantian the view of personfocusing on universalabstractrationality. 34:957 criteria mightbe soughtby appeal to extrinsic moral reality. Subjective and Obyctwv. or to the concept of person itself. possessingparticular attachmentsand loves. in 6 ENCYCLOPEDIA OF PHILOSOPHY 10 (P. Rawls. 13. uality in the contextof community.
Locke definesa person as "a thinkself-consciousness and can consider ing intelligent being. London 1690).17In contrast is the view that personsare human bodies."8 The sophisticatedversionis that continuousembodimentis a necessarybut not sufficient condition of personhood.thathas reason and reflection. BodY/ Conitrnut andPersona/Identi/y. B. ed. Anscombe trans. IDENTITY & ESSENCE (1980). e. WILLIAMS. 53 (1951). XXVII. 15.the same thinking thing in different times and places. SHOEMAKER. Rorty ed. INDIVIDUALS: AN ESSAY IN DESCRIPTIVE METAPHYSICS (1959).13. See. 1976). See. WILLIAMS. 16. AN ESSAY CONCERNING HUMAN UNDERSTANDING bk. 1958). e. see a/so B.memory. in PROBLEMS OF THE SELF 12 (1973). Shoemaker. in SELFKNOWLEDGE & SELF-IDENTITY 41 (1963). The ontologyof the person is not a settled matter in philisophical discourse. S.belief. 149 (A. among to attribute otherthings. 17. 87-116 This content downloaded from 5.101 on Sat. L.desire. 18. Butler and theStream And Men as a NaturalKind. WILLIAMS. B. WILLIAMS.'5 Locke's theorystill holds great appeal for those who puzzle of personal identity..""4 For Locke. 20.in THE IDENTITIES OF PERSONS bodies. Lockeand theProblem of Personal Identiqy. To recognizesomethingas a person is. itself as itself.motion. in THE IDENTITIES OF PERSONS 109 (A. 1976). 1894) (1st.May 1982] PROPERTY AND PERSONHOOD 963 Anotherclassical view of the personmakes its essentialattributes and memory. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . and suggestthatthe individual'sabilityto projecta continuinglifeplan into is as important the future as memoryor continuingconsciousness. Embodzment and Behavior. Character and Mora/ty. see Flew.g. some theorists findthesetraditionalviewstoo pale. Identity in PROBLEMS OF THE SELF 1 (1973). to it. For a critique of Locke's views on personhood. Persons. 26 PHIL. AreSelvesSubstances?. Part of what Wittgenstein meant by this must have been that "when we are asked a man's personalityfromhis body. PHILOSOPHICAL INVESTIGATIONS 178 (G.16 over the mysteries These two classical viewsare compatiblewiththinking of persons as disembodied minds or immaterial essences. ? 9 (A. 3d ed. ch. STRAWSON. Personal and Indw:duation.and so forth. II. WITTGENSTEIN." B. in PROBLEMS OF THE SELF 64 (1973). memory thiscontinuousself-conscioussignifies ness. J.'9 Indeed. in THE IDENTITIES OF PERof Consczousness. ArePersons Bod&es?. Rorty ed. SONS 139.g. Last.21 14.153.Locke. and "Ppredicates"which implypossessionof consciousnessand are not applicable to mere material P. 21. BRODY. Williams. B. we do not really know what to distinguish to distinguish from what. Wittgenbodily continuity stein says that the best picture of the human soul is the human body. Fraser ed. LOCKE. arguingthat in seekingto create a personal identity conditionwe are seekingto describe"a persisting material entity essentiallyendowed with the forthe exerciseofall the facultiesand capacities conceptuallyconstitubiological potentiality tiveof personhood-sentience. F. Personal IdenliyandIndivdwual/tat:on. P. in PROBLEMS OF THE SELF 19 (1973). David Wigginsbuilds on Locke. This view seemsoverinclusive:Is a dead body or a body that is alive but exhibitsno brain function a person? 19." Wiggins. Strawson argues that person is a primitiveconcept to which two classes of predicatesboth apply: "M-predicates" which are applicable to mere materialbodies..
pt.(3) that whethersomething countsas a persondepends on the stance otherstake in relatingto it-i. in 19 THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 18 (V. 23.13. vein. but the economistmust borrow enough of the Kantian view to attributeinstrumental rationalityto this aggregate.25 Alternatively.153." Id.24 The behavioral psychologistmight say that the selfis nothingseparate fromthe body's processesand In a similarlyempirical and skeptical activityin the environment." id. i. 24. (5) that personsmust be capable of language and verbal communication. FREUD. THE LIMITs OF LIBERTY (1975). Ruse ed.22 Persons are what theyare in virtueof theirpast and futureintegratedby their character.. Uni?y This content downloaded from 5. 25. that it is treatedas a person. BUCHANAN. memory.in NATURE ANIMATED (M. see also Moore. Dennett distinguishes six themes. bk.a subject of mental states. Other ways of thinking about personsmay not fall within these fourrough categories. ? VI (1888). the structural postulatesof Freudian theorymay perhaps be considereda separate theoryof the person. the status quo. at 201. at 149-50.each familiarly claiming to be a necessaryconditionof personhood. (6) that personshave a special consciousnessor self-consciousness distinguishing them from otherspecies. 22. Dennett. 1961). 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . D. See.23The thoroughempiricistor metaphysical skepticmay say thereis no such "thing" as a person. Rortyed." over time is merelya persistent illusion. Stracheyed. conventionally recognized as a unit. The familiar"economic man" is simplythat entitywhich applies pure instrumental to satisfy rationality its arbitrary tastesand desires...26 A communitarian would findall of those conceptsof personhood 197 (A. 34:957 Allied with this is the view that what counts in recognizingsomethingas a person is a consistentcharacter structure. The oftheSelf. Conditions in THE IDENTITIES OF PERSONS 175. This conception relates both to the Lockean self-consciousness theoryof the person and to the theoryof characterstructure. at 215.e. forthcoming 1982). (4) that the object of the personal stance must be capable of reciprocatingits treatment as a person. See Williams. How would such an entitybe conventionally recognized? Perhaps by an equilibrium that becomes stable enough to persistover time.g. non-behavioralpsychologists may thinkof the person as a self. 26.They are: (1) that personsare rational beings. With regard to the Lockean emphasis on see Wiggins. HUME. Rortyed.supranote 16.964 STANFORD LAWREVIEW [Vol.e. (2) that personsare beingsto whichstatesof consciousnessare attributed.a positiveeconomistmightconceive of a person as nothingbut a bundle or collectionof tastesand desires. The Ego and the Id. 1976). To that end. IV. 177-78 (A.101 on Sat.supranote 21. The Kantian view does not do justice to "the importanceof individual characterand personal relations in moral experience. S. I.Still. of Personhood. 1976). "such thingsas deep attachments to otherpersonswill expressthemselves in the world in ways which cannot at the same time embody the impartialview. Hume arguesthat a personis "nothingbut a bundle or collectionof different and that the feelingof self-identity perceptions. See generally J. in A TREATISE OF HUMAN NATURE. e. Of Personal Identiy.
Locke elsewhereconsidersthe person as reflective consciousnessand he may well mean here that one literallyowns one's limbs memory. 28. . therecould not be such intensephilosophicalattentionto the biological individual and its ontological.psychological.See C. and the Workof his hands .g.30 27. perhaps propertyin one's personshould be understoodto mean simplythat an individual has an entitlement to be a personor to be treatedas a person. This content downloaded from 5. memory. Personsare embedded in language. as we have seen. ? 27.27 therecan be no such thingas a person withoutsociety.13. MACPHERSON.individualorientedtheories. . As Macpherson and othershave pointed out. ? 25. Locke says that "everyMan has a Propertin his own Person.101 on Sat. See. are properly his. moral and political status. I shall initiallyconfinemy inquiryto the typesof the person posited by the more traditional.J. J. and culture.153. ch. J. THE POLrIICAL THEORY OF POSSESSIVE INDIVIDUALISM: HOBBES TO LOCKE 13 (1962). history. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . view that flowered In a societyin which the only human entityrecognizedin social inis some aggregatelike the family tercourse or clan. supranote 3. 100 (1. In view of the individualist rootsof those theoriesof the person.e."28Though. V. McCarthy trans. 1979) (linguisticdevelopmentcontributesto ego development). B. and hence must own their product.it comes as no thatthinkers who wish to progress surprise froman individualistto a communitarian world-view are impatientwith them.Habermas. Propery and Theories ofthePerson Bypassing for the moment Kantian rationality and Lockean let us begin withthe personconceived as bodily continuity. to say "must" at this point requires a capitalistmentality. For the sake of simplicity. 29. ch. V.. 30.LOCKE supranote 3. Communitarians see the mythof the self-contained "man" in a state of nature as politicallymisleadingand dangerous.May 1982] PROPERTY AND PERSONHOOD 965 wrongheadedbecause theyall derive fromthe individualisticworldin westernsocietywith the industrialrevolution.which are social creations."' from which it immediately followsthat "[t]he Labourof his Body.29 If not. This would probablyinclude the rightto self-preservation on which Locke bases the rightto appropriate.LOCKE. in COMMUNICATION AND THE EVOLUTION OF SOCIETY 95.In what followsI shall on occasion attemptto pay attention to the role of groupsboth as constituted by personsand as constitutive of persons. But the communitariancritique remindsus that the idea ofthe personin the abstractshould not be pushed beyond its usefulness. Historical Materialism and theDevelopment ofNormative Structures.
but remains purelypersonal.A. This intuition makesit seem appropriateto call partsof the body property after only theyhave been removed fromthe system. 31.g.col.hair can be cut off and used by a wigmaker.separatefrom Though the generalidea of property for personhoodmeans that the boundarybetweenpersonand thingcannot be a brightline.L. 10.31 The idea of propertyin one's body presents some interesting paradoxes.the body is quintessentially personal property because it is literally constitutive of one's personhood. 1. We have an intuition that propertynecessarilyrefersto something in the outside oneself. This content downloaded from 5.and the notionof thingrequiresseparation fromself.at least insofaras property requiresthe notion of thing. back. may also be consideredpersonal propertyif they are closely enough connectedwith the body.? II. Sale at J35. bodily partsmay be too "personal" to be property at all.13.Kidney.and whetherthe plastic partsonce insertedshould be consideredpersonal property or somethingelse. world. at 1.33The plastic parts question represents the converseof the problem concerningthe sale of natural organs. TIMES.L. Parfit.000.. 1975. In some cases. See A BrazziwnTragedy-Desperation: Sellng Your Eye. LaserSelves and Moral Principles. TIMES. Montefioreed.101 on Sat. LAW 32. thenobjectivelyit is property If thebody is property. 3. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . ? I.can be a battery.ManDesperateforFunds. Feb.A. TRAGIC CHOICES (1978) (reasons society mightdisallow such transactions).32 Anotherparadox is whetherreplacingany of my body partswith fungible plasticmakes me a different person..thus seeminglynot property. still the idea of property seems to require some perceptible boundary. etc. BOBBIT. 1981. 1971). Conversely.Certain externalthings. just as otherpersonal property with the owner: Blood can be withdrawn change in its relationship and used in a transfusion.See. while it is still inside the body. forpersonhood.organs can be transplanted. W. 1973). the shirtoffmy sonal property. The natural organ becomes fungiblepropertywhen removed from the body. Sept. a touchingof one's clothesor cane.966 STANFORD LAWREVIEW [Vol. See generalo G. PROSSER. plastic parts are fungiblewhen sold to OF TORTS ? 9 (4th ed.but that we may leave to the philosophersof personal identity. This line of thinking leads to a property theoryforthe tortof assault withmy body is interference and battery: Interference with my perforexample. Hence. on the embodimenttheoryof personhood.153. On the other hand. Eyefor col. 1. Whethersocietyshould permitbodily parts to become commoditiesis controversial. CALABRESI& P. bodily parts can become fungiblecomcan become fungiblewith a modities. e. 33. in PHILOSOPHY & PERSONAL RELATIONS 137 (A. at 1. 34:957 If it makes sense to say that one owns one's body. The first inquiry raises the point that the parameters of personal identitymay be scalar ratherthan binary. then.
hence perat all.it seemsobject relationsare necessary and centralto self-constitution.34If personsare bare abstractrational agents. Stt. WINNICOTT. RAWLS. corollaryto the conceptof personhoodin this view. D. let us consider the person as individual rationality.and the home-is connectedwithmemoryand the continuity of selfthroughmemory.and the world of objects. KOHUT.Therefore.13. haps no longerproperty Next. Steele & Jacobsen. Property. Comments Utility. photographs.One mightintroduceexternalobjects to a population of Kantian personsin the state of nature or in Rawls's original position35to see how they divide things among themselves(and so it mightbe hard to thinkofjustice among thesepersonswithoutpropbut object relationships are stillnot a necessary erty). fungible.g. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . L. 37.supra note 13. in Michelman's quasi-Rawlsian analysisofjust compensationlaw. Since objects do not become bound up with the person considered as abstract raone mightexpect a tendencyof Kantian rational persons to treat all propertyas tionality. It is possibleto hold the Lockean conceptionand stillbelieve that memoryis part of an immaterialessence of the person that has no inherent connectionto the material world. 36. This content downloaded from 5. diaries. 1165. REV. Ste J..the Kantian person. e. Transitional and Transitional Objects in COLLECTED PAPERS Phenomena.153. far-seeing. Much of the property we unhesitatingly consider personal-for example. These are the people in Rawls's original position. and Fairness." Michelman. 80 HARV.and should be consideredas the natural organs they replace. on theEthicalFoundations of 'just Compensation" Law.there is no necessary connectionbetweenpersonsand property. But the pure Lockean conception of personhooddoes not necessarily implythat object relations(and the expected continuity of thoserelationsthat property gives) are essential to the constitution of persons. familyalbums.or. at 17-22. Memoryis made of relationships with otherpeople.36 In Locke's view of personsas continuingself-consciousness characterizedby memory. but once inserted they are no longer fungible. the "patient. 5 INT'L REV. PSYCHOANALYSIS 393 (1977). See text accompanying notes 12-13 supra. FromPresent to Past: The Deve/opment of theFreudianTheory.101 on Sat. Kantian rationalitycannot yield an objective theory of personal property.May 1982] PROPERTYAND PERSONHOOD 967 the hospital. because that conception is disembodied enough not to stress our differentiation fromone another.37 34. 1224 (1967). 229 (1958). the externalworld may enter the concept of person. THE ANALYSIS OF THE SELF (1971). reasonable folkwho inhabit the fairness model. But in a neo-Lockean view such dualism and making self-differentiation rejecting important. H.heirlooms. 35. The processby which a person develops object relationsand an appropriate differentiationfromthe environment of other people and thingsis the subject of large portionsof psychologicaland psychoanalytictheory.
you are no longerable to expressyour character. at 112. 39.and that the relationship belongsto the class of "good" ratherthan "bad" objectrelations. FORSTER.who declared that "the idea of property consistsin an establishedexpectation.39This at least suggeststhat property may have an importantrelationshipto certain charactertraitsthat partlyconstitute a person. 314. The general one's characterthroughproperty is quite familiar. E.In orderto conclude thatan object figuring into someone's expectationsis personal.because it applies only to personal property.38But.ifyou expressyourgenerosity that by givingaway fruits growin yourorchard.968 STANFORD LAWREVIEW [Vol. The Prznvb/e in ASPECTS OF THE SOCIAL PROBLEM 308.and it is partlythese plans foryour own continuitythat make you a person. . My Wood. Forsterexpressedthis view: "I shall wall in and fenceout until I really taste the sweetsof property.the attribIt is frequently utes of many materialgoods.." E. 40."40But thisjustification forhonoringexpectations is far fromBenthamite. This view of personhoodalso givesus insightinto why protecting people's "expectations"of continuingcontrol over objects seems so important.153. idea of expressing remarked that dogs resembletheirmasters.I shall weave upon my foreheadthe quadruple crown of possession . Hence we are forcedto face the problem of fetishism. BENTHAM. as well as past events and feelings. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .Enormouslystout. pseudo-creative.thenifthe orchardceases to be yourproperty.13.many would say that becoming too enthralledwith propertytakes away time and energy needed to develop otherfacultiesconstitutive of personhood. 26 (1936). The connectionbetween certain kinds of propertyrightsand the person viewed as characterstructure was recognizedby Bernard Bosanquet in 1895. (1895). then your personhooddepends on the realization of these expectations.endlesslyavaricious. This turnto expectations mightseem to send property theory back toward Bentham. BOSANcontinuing QUET.we must conclude both that the person is bound up with the object to a great enough extent. supra note 3. forexample. J. 34:957 Finally.in ABINGER HARVEST 23. such as cars and clothes. C. ofPrwateAoperey.let us consider the view that what is importantin personhood is a continuingcharacter structureencompassing future projectsor plans. M.101 on Sat.If an object you now controlis bound up in your future plans or in youranticipationof your future self. This content downloaded from 5.can proclaim charactertraitsof theirowners. Set B. or "bad" object-relations. Of course. 311. selfintensely ish. TheProblem ofFetishism We mustconstruct sufficiently objective criteriato identify close 38.
Sexual Perversion. but do not wish to rely on natural law or simple moral realism. 126 U. See Rawls. withoutdestroying the meaningof objectivity. in MORTAL QUESTIONS 39 (1979). Freedom and Resentment. however.101 on Sat.butste T.in MENTAL ILLNESS: LAw & PUBLIC POLIcY 25 (B. at 570-71. Engelhardteds. Cf Moore.45 There does not seem to be the same reason to restrain a private 41.implies that a consensusexistsand can be discerned.41 In fact. KantianConstructivism in Moral Theory. I have argued elsewherethat our presentstate of philosophical enlightenment on the subject of moral objectivityseems to be consonant with the argumentthat "deep" moral consensus-not mere social consensus.42 Using the word "we" here. JUSTICE AND THERAPY 165 (1979). P. Radin. L.the concepts of sanity and personhoodare intertwined: At some point we questionwhether the insane person is a person at all. sometimes.SuperDue Process forDeath. PA. Morse. 989.44 In the contextof property forpersonhood. supranote 13. Judgments of insanity or fetishism are both made on the basis of the minimumindicia it takes to recognize an individual as one of US. Mora4. Whetherany kind of consensuscan ever be a source of objective moraljudgments is the subject of philosophical dispute. CAL. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . 42. MURPHY. supra note 41. For Moore. 109 (1980). at 581-90. 43. Crazy Behait.or between a difference sane person and an insane person. 45. distin- This content downloaded from 5. REV. in FREEDOM AND RESENTMENT 1 (1974). then.Incompetence and Paternalim. See J.13. andScence: An Analysis ofMentalHealthLaw. STRAWSON. NAGEL. the criterionis rationality. The Jurisprudence ofDeath. 527 (1978).153.a "thing" that someone claims to be bound up with nevertheless should not be treatedas personal vis-a-vis otherpeople's claimed rightsand interests when thereis an objective moral consensusthat to be bound up with that categoryof "thing" is inconsistent with personhoodor healthyself-constitution. 1176 n. Morse.in RETRIBUTION. 1980). REV. 51 S. supranote 41.Evolving theCrueland Unusual Punishments Standardsfor Clause. Brody& H. 1030-42 (1978). Because I seek a source of objectivejudgments about propertyforpersonhood. There are varying philosophical approachesto the necessarycriteriaor indicia forrecognizingsomeone as one of us. CAL. L. Radin. L. 53 S. Legal Conceptions ofMentalIllness.43 consensusmust be a sufficient source of objective moral criteria-and I believe it can be. A key to disthese cases is "healthy. Drawing out these notions of intelligibility.or subjective preference counting-should be treated as objective forpolitical purposes. 1143. REV. 44. There has not been much philosophical analysis of perversion. Moral Reality (1981) (unpublished manuscript on file with Stanford Law Review) (arguing that legal decisions can and should be made on the basis of moral reality).the ability to carry out intelligiblerational syllogisms." We can tell the difference tinguishing betweenpersonalproperty and fetishism the same way we can tell the betweena healthyperson and a sick person.May 1982] PROPERTY AND PERSONHOOD 969 object relationsthatshould be excluded fromrecognition as personal property because the particular nature of the relationshipworks to hinderratherthan to supporthealthyself-constitution. CruelPunishment and Respect forPersons. See Moore.
MARX. To refuseon moral groundsto on someonedeemed violently call fetishist property personal is not to refuseto call it propertyat all. speaks of the indicia of "intentionalsystems. speaks of responses to entitiesin termsof personalor objective attitudes.970 STANFORD LAW REVIEW [Vol. If we deny the caricaturecapitalist the claim that her empire is personal. the extentto which someone may emulate the caricaturecapitalistand stillclaim property forpersonhood is not clear. This content downloaded from 5.48 guishes "crazy urges" and "crazy reasons.46 A broader aspect of the problem of fetishism is suggested by Marx's "fetishism of commodities. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . Althoughthe caricaturecapitalist cannot expressher nature without control over a vast quantity of and otherpeople.If there is some moral cut-off point. CAPITAL ch." 46.153. the hypothethical caricature capitalist bringsup a further aspect of the festishism problem: the effect of one person's claimed propertyrightson the personhood of others. 47."47Marx attributedpower in a market societyto the commodities that formthe market.beyond which one is attached too much or in the wrongway to property. her need forthiscontrolto constitute things herself the complete capitalist could not objectivelybe recognized as personal property because at some point thereis an objective moral consensus that such control is destroyingpersonhood rather than fosteringit. The immediateconsequence of denyingpersonal statusto someto treatthat thingas fungibleproperty. 1889). Dennett. under capitalism property itself is antipersonhood.He believed thatpeople become subordinatein theirrelationsto these commodities.and Marx would probably be quick to point out that its fungiblecharacterin the hands of the capitalist makes it no less oppressiveto the property-less. 48. and hence to thingis merely deny only those claims that mightrelyon a preferred status of personal property. but is not unlimited. that still leaves her with an empireof fungibleproperty.supra note 42. What sortof claims mightbe associated with a preferred statusof personal property is discussed in Parts IV-V tnfra. 34:957 fetishist as therewould be to restrainan insane person prone to violence againstothers. Moore & E. In other words." Strawson. Even if one does not accept that all capitalist market relations withobjectsdestroy personhood.The extentto whicha liberal government may permitprivate individuals to engage in practiceswhich impingeon the personhoodof othersis a difficult question of political theory.supra note 23. But the restraint of denyingthe fetishist's propertyspecial recognition as personal is less severe than that imposed insane. Thus.13. Aveling trans.it is probablytruethat mostpeople view the caricaturecapitalistwith distaste. I (S.such as the capacity to respectotherpeople or the environment. Most people mightconsider her lacking in some essentialattributeof personhood.101 on Sat. K.
individuality. The textof the work consistsof numbered sections.. REV.1. to what extent certain interests personhood (regardless of whetherembodied in propertyor not) ought to be guaranteed by even against the claimed property the government interests of the rich. and Indi'vidualty Freedom. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . Cf PR ? 29 ("[Recht]therefore [Sit'tlchkett]. The standard English translationof GRUNDLINIENDER PHILOSOPHIE DES RECHTS cited as PR]." tion freedomas Idea"). Hegel thus initially assumes away those in It is the inverseof the problem of welfarerights. but wished it to connote instead both "moral duty in regard to actual [i. 182-99 inJfa.that is.cf ? 11 n. Personalitybegins not with the subject's mere general consciousnessof himself as an ego concretelydeterminedin some way or other.13. Althoughthe Phi'losoph. Societv Verene ed. Hegel's person is the same as Kant's-simply an abstract autonomous entitycapable of holding universalprinciplesand hence by defia device forabstracting rights.. Anglo-Americanlegal scholars examined it. is by defini. 49. but also morality.50 sons as rights holders."remarks" added to cited with "R" following the section number]. . POL. LECTURES ON THE PRINCIPLESOF POLITICALOBLIGATION ? 10 (reprinted1927 fromII GREEN'S PHILOSOPHICALWORKS (L.because following "right"does not capture the fullsense of "Recht.. the self-conscious but otherwisecontentlessand simple relation of itselfto itselfin its and fromthis point of view the subject is a person .101 on Sat. namely civil law. 1980). a 19th-century British Hegelian. In postulatingpernitiondevoid of individuatingcharacteristics. 1886)). PROPERTY 130 J. Citations in this iS PHILOSOPHY OF RIGHT (T.in a few quotations I have made minor emendations for the sake of clarity. Chapman eds. 36.. See also. PROPERTY AND PERSONHOOD HEGEL.legal] obligations. Knox trans. Stillman. GREEN. (1) Personalityessentiallyinvolves the capacity forrightsand constitutes the concept and the basis (itself abstract) of the systemof abstract and formalright. Hegel's Philosophyof Right although . Pennock &J. Nettleship ed.. The English title of the work is slightlymisleading.. S..Person.does not immediatelyinvoke the intuitivepersonhood perspective. This is a problem not directlyaddressed in the presentarticle.May 1982] III.. 1086 (1974). 1980). Property and Civil in the Philosophyof Right.y ofRight is a philosophyof law. AVINERI. understood Rechtas meaning the systemof positive law. PROPERTY. 1942) [hereinafter articleare to the Knox translation. Property. Thomas Hill Green. Hence the imperativeof rightis: "Be a person and respectothersas persons.and "additions" the textby Hegel [hereinafter obtained by early editors fromcollating student lecture notes [hereinafter cited with "A" the sectionnumber].e.Hegel's Critique ofLiberalTheonres ofRights. . Stillman. the systemof rights and obligationsas it should become..communitymorality and world-history PR ? 33A. in HEGEL'S SOCIAL AND POLITICAL THOUGHT 103 (D.153. 50. though it is further noticed in text accompanying notes 109-17. The best discussion I have found of Hegel's property have not systematically theoryin English is Stillman. positive. Thought.as well as ."by which Hegel means "not merelywhat is generallyunderstoodby the word. HEGEL's THEORY OF THE MODERN STATE (1972). AND PERSONHOOD 971 A. 35R. The universality of this consciouslyfreewill is abstract universality." This content downloaded from 5.but ratherwith his consciousness of himself as a completelyabstractego in which everyconcreterestriction and value is negated and withoutvalidity ..seealsoid ??9-11. itn Hegel's and Marx's Polti'cal in NOMOS XXII." T. SCI.68 AM.4 of Right The propertytheoryof Hegel's Philosophyv based on a conceptionof persons. Hegel puts this as follows: 35.
that render individuals unique beings-particular characteristics and character traits,particular memoriesand future commitments with otherpeople and with the world plans, particularrelationships the intuitive assumes that ofexternal objects. In contrast, perspective personsare not persons except by virtue of those particulars,and sees the personas the developed individual human being in therefore the contextof the external world. Personal propertyis important because its holder could not be the particularperson she is precisely withoutit. is only the first Yet, Hegel's property theory part of a logical and fromabstractunits of autonomy to developed historical progression individuals in the context of a developed community.51Hence, Hegel's theorymay functionto take the person fromthe abstract into the world of concreteindividuals having the atrealm of rights of personhoodas we commonlyconceive them. Thus, even tributes describedas thoughHegel does not use the word personforthe entity of personal property, the personin the theory Hegel's theorycan be with the idea of personal property. Whereas the seen as consistent of personalproperty theory beginswith the notion that human individualityis inseparable fromobject relations of some kind, Hegel makesobject relationsthe first step on his road fromabstractautonof the individual in the contextof the famomy to fulldevelopment ily and the state. Because the person in Hegel's conception is merelyan abstract unit of freewill or autonomy,it has no concreteexistenceuntil that will acts on the externalworld. "[T]he person must give its freedom an external spherein orderto existas Idea."52 At thislevel ofparticularization,the externalsphere "capable of embodying[the person's] consists of the restof the world,everything freedom" that is distinct fromthe person.53 From the need to embody the person'swill to take freewill from the abstractrealm to the actual, Hegel concludes that the personbecomes a real self only by engaging in a propertyrelationshipwith
PR ?? 35,35R & 36. Cf T. GREEN, supranote 49, ? 27 ("[the propositionthat all rightsare personal] means that rightsare derived fromthe possessionof personality-a rational will"). 51. See notes 56, 62, and text accompanying note 62 z,fra. 52. PR ? 41; cf PR ? 39 ("Personalityis that which struggles. . . to give itselfreality, or in otherwordsto claim that externalworld as itsown fmeis Dasein als das thnge zu seizen]."). Since Hegel, like Plato, was an idealist,somethingmust existas Idea in order to be actualized or real. 53. PR ? 41.
PROPERTY AND PERSONHOOD
external.54Such a relationshipis the goal of the person. something passage fromthis book, Hegel says: In perhaps the best-known itssubstantive end theright ofplacingitswillin The person has for whichthingis thereby mine;[and] because thing, any and every and soul takeon my itsdestiny has no suchend in itself, thatthing of appropriation mankind's absoluteright will. [Thisconstitutes] overall things.55 is the first embodimentof freedomand so is in itHence, "property end."56 selfa substantive theoryis an occupancy theory;the owner's will Hegel's property mustbe presentin the object.57 Unlike Locke's theoryof appropriathestateofnature,occupancy in Hegel's view does not give tionfrom
54. "I as freewill am an object to myself in what I possess and therebyalso forthe first time am an actual will, and this is the aspect which constitutesthe categoryofproperty, the true and rightfactorin possession." PR ? 45. 55. PR ? 44. It is unclear why Hegel referred in this passage to the thing becoming "mine" [dieMeinige]ratherthan "the person's." Perhaps by thislack of parallelism he meant to suggestthe change fromabstract personhood to concrete individualitybrought about by embodimentof the will. 56. PR ? 45R. To understandwhy Hegel says propertyis only the first embodimentof one must understandboth the structure freedom, of the Philosoph,y ofRightand the Hegelian meaning of freedom. Hegel's Philosoph,y ofRight is divided into an Introduction and three Parts,entitled,"Abstract Right," "Morality," and "Community Morality" [Sittiichkeitj. See note 68 infra.The first Part considersrelationships among individuals viewed as personsor as abstractautonomousentities freewill,see note 50 supra,in the contextsof possessingarbitrary property, contract,and crime. The second Part considers individuals as subjective entities having a consciousness and conscience which direct the individual will towards its own conceptionof the good. The thirdPart considersindividuals as grounded in an objective ethical order consistingof the customs,history, and spirit of a nation. This discussion covers the civil society,and the state. Hegel argues that freedomis finallyrealized when the family, individualwill uniteswithand expressesitself as part of the objective ethical order--an absolute mind or spirit(GeCst) embodied by the state. See Solomon, Hegel's Concept of "Gecst",in HEGEL: A COLLECTION OF CRITICAL ESSAYS 125, 125 (A. MacIntyre ed. 1972) ("What clearlyemergesfromHegel's writings is that 'Geist' refers to some sortofgeneral consciousness, a single5mnd' common toall men. ") (emphasis in original); cf C. TAYLOR, HEGEL AND MODERN SOCIETY 11 1 (1979) (Geistis "cosmic spirit"; "spiritual reality underlyingthe universe as a whole"). For Hegel, real freedom(ratherthanjust its initial stage) depends upon the individual's assumptionof an appropriate role in the properlydeveloped state, a concept quite different fromthe notion of (negative) liberty, or freedomfromexternalconstraints.See note 7 supra. See Schacht,HegelonFreedom, in HEGEL: A COLLECTION OF CRITICAL ESSAYS, supra,at 289, 320. Cf Berki, PoliticalFreedom and HegelianMetaphysics, 16 POL. STUD. 365, 376 (1968) (Hegel's "philosophicalfreedom growswith comprehensiveness and with ever higher degrees of realized self-determination. Thus, an animal is freer than a physical object, a man freer than an animal, the familyfreer than the individual, the State freerthan the family,World-Historyfreer than the State, etc."). 57. "Since property is the embodzment of personality[DaseinderPersonlhkeit], my inward idea and will that something is mine is not enough to make it my property;to secure this end occupancy [dieBesitzergreifng] is requisite." PR ? 51.
rise to an initial entitlement which then has a permanent validity. Rather, continuousoccupation is necessaryto maintain a property betweena personand any particularexternalthing,berelationship cause "the will to possess somethingmust express itself."58As the autonomous will to possess comes and goes over time, so property mustcome and go.59 Hegel's argumentabout propertyin the realm of abstract right mostlyreaffirms the liberal positions on property.60But because Hegel believesthe rights he describesthereconcernonly the Kantian "abstractpersonality,"'61 he treatsthem as both logically and devel58. PR ? 64R. Hegel thus makes it clear that prescription or adverse possession is not based on an "external" theorythat a statuteof limitationsis needed to cut offthe "disputes and confusions which old claims would introduceinto the security of property." Id Rather, thingsbecome unowned when theyare "deprived of the actualityof the will and possession."
PR ? 64.
59. Alienabilityalso follows;thingswhich have become propertyare alienable simply by withdrawing one's will. PR ? 65. Those thingswhich constitutethe will or personhood must,however,be inalienable. PR ? 66. The concept of Mind [Gest] could not be actualized if personscould dispose of theirpersonhood. PR ? 66R. 60. Hegel believesthat his argumentyieldsnot only a propertyrelationship,butprtvate property. 46. Since my will, as the will of a person, and so as a single will, becomes objectiveto me in property, property acquires the characterof privateproperty; and common propertyof such a nature that it may be owned by separate persons acquiresthe characterof an inherently dissolublepartnership in which the retention of my share is explicitlya matterof my arbitrarypreference. PR ? 46. Hegel believes that "[o]wnership therefore is in essence freeand complete." PR ? 62. The notion of divided ownershipposes "an absolute contradiction." What is mine is "penetratedthroughand throughby my will," but that cannot be if the "impenetrable" will of anotheris supposedlypresentin the same thing. Id AlthoughHegel thoughthis argumentnecessitatedprivate property, he did not thinkit had anythingto do with who gets what. He took care to point out that in this sphere of abstractright,where he considersonly units of personal autonomy and no formsof social interaction or social entities, thereare no issuesofjustice in distribution.Hegel discusseshere only the "rational aspect"-that individuals possess propertyas expressionsof theirwills; he does not consider here the "particular aspect"-that how much one possesses depends on "subjective aims, needs, arbitrariness, abilities, external circumstances,and so forth." PR
Hegel adds: At this point, equality could only be the equality of abstract persons as such, and therefore the whole fieldof possession,this terrainof inequality falls outside it. We may not speak of the injustice of nature in the unequal distributionof possessionsand resources,since nature is not freeand therefore is neitherjust nor unjust . . . . On the other hand, subsistenceis not the same as possessionand belongs to anothersphere,i.e., to civil society. PR ? 49R. Hegel means by "civil society"[di' burger/he roughlywhat most liberGesellschaf] als mean by the state; that is, the sphere of political economy in which individuals pursue theirown selfish ends. See PR ?? 182-256; note 67 infra. 61. PR ? 40R.
Findlay. and incorporatedinto a new synthesis. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .May 1982] PROPERTYAND PERSONHOOD 975 of rightarising fromthe peropmentallyprior to any relationships with others in society.62 In Hegel's scheme of progressfrom abstractunitsof will to the finalideal unityof individuals and the state.g.For Hegel.he remarksthat the civil law's traditional classificationof rights. Do Hegel's remarkson property apply to a societyin which these later stages are to some degree already actualized? If one interprets the structure of the Phdsophy ofRightaccording to the most usual understandingof the Hegelian dialectic.153. Subsequent sections of his son's interaction book introduceother. M. TAYLOR. the Hegelian ideal state would stillcontain the propertyrelationships characteristic of liberalism.56 PROC. When personality or "immediate exclusive individuality"entersinto marriage. T.Hegel's initial sphereof abstract rightmightbe considered comparable to a Hobbesian stateof nature froma Kantian perspective. In fact. 63.derived from Justinian. occurringsuccessivelyin as well as in logic.thoughtthat abstract rightand moralityare both "absorbed into ethical life [community morality]as its constituents. 64." and the partiesbecome one person. in HEGEL: A COLLECTION OF CRITICAL ESSAYS. supra.then the type of communityentitythat realizes the Idea would contain propertyrelationships of the sort he set out in the sphere of abstractright. Findlay.64It followsthat theremust be family wherein"the family. They are at once destroyed. If this is correct. Knox. supra note 56.g. those of familyand political life.13. ARISTOTELIAN Soc'Y 1 (1955).. This distinction presentsa basic question forinterpreters of Hegel's property theory: To what extent are his considerationsof propertyrightsfromthe first Part ofPhdosophy ofRight("AbstractRight") supersededin turnby the considerationsin Part two ("Morality") and Part three ("Community Morality")? See note 56.63 Hegel departsfromclassical liberalismin discussingtheseotherkindsof property relationships. then earlier stages are "aufgehoben" by the later.PR ? 40R.or a singleautonomousunit. transcended. e. the concept of absolute mind as the perfection history of both the universaland all particulars. Conceptualizing a person merelyas a separate autonomous unit possessingarbitrarywill leaves out the "later" spheres of moral sentiments and participation in familyand community. more particular propertyrelationshipsthat arise fromthe nature of groups-the familyand the state-rather than fromindividual autonomy alone. 53-66 (1979). in comparingHegel's theoryto a theoryof perThey are important sonal property. Hegel thoughtof these dialectic stages as both historicaland conceptual.. HEGEL AND MODERN SOCIETY 49. was confusedbecause of its "disorderlyintermixture of rightswhich presuppose substantialties. property as person. PR ? 167. Translator's Foreword to HEGEL'S PHILOSOPHY OF RIGHT at x (1942). Hegel derivesfamily property fromthe personhoodof the family unit. C.e. individuals could not become fullydeveloped outside such relationships." Knox. the translatorof the Philosophy ofRight. Marriage is one of the "absolute principles"on which communitymoral- This content downloaded from 5. The Idea. because the concept of person in the theoryof personal property refers to the fullydeveloped individual. at 1.has its real exter62. it "surrenders itself to it. See. See note 56 supra. The Contemporary Relevance ofHege/.these otherkinds of property are higher relationships and moreadvanced." with those stemmingfrompersonhood simpliciter. was the ultimategoal of both his conceptual systemand the processof history. SomeMertzs of Hegeianism.101 on Sat.That is.
"67 and individuals within the state are subsumed into its community morality.as an aggregateof autonomous units of arbitrarywill."which they "know and will" and "recognize. note 67. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . is an aggregate of private property-owning individuals.and if its specificend is laid down as the securityand protectionof propertyand personal freedom. See PR ? 260.66 Hegel seemsto make property "private" on the same level as the unitof autonomythat is embodyingits will by holding it. He also endorsed the traditionalroles of husbands and wives. only abstractlyand thereforeas the rightof property. 34:957 nal existence. as theirown substantivemind. PR ?? 178-80. the properly developed state (in contrastto civil society)is an organic moral entity. Hegel's special use of the word Stt/chkeit.even though both distinguish wordsordinarily mean "morality. causes a translation problem. ."Hegel differentiated the two because he wanted Mora/htdt to connote the moralityof the individual conscience and Stt/zchkeit to connote the collective moralityof a societyincluding the totalityof its historyand customs. supra.however." PR ? 175.although most Hegel scholars either leave the word untranslatedor use Knox's "ethical life.the autonomous units in civil societyfulfill contracting each other's needs.101 on Sat. .the principleof thissystem of needs containsabsolute universality.).Hegel conceives of civil societyas "an associationof membersas self-subsistent individuals. supra." PR ? 208. and in a familyone has "self-consciousness of one's individuality withinthis unity" as a "member. Sitt/zchkezt is concretemorality. ular arbitrary ity depends."the actuality of the ethical Idea. Hegel objects to classical liberal theoriesof the state: If the state is confusedwith civil society. 319 n. He conservatively favored inheritancebut disfavoredfreedomof testation. 68.then the interestof ? 166.75 (Mora/itat is abstract morality.976 STANFORD LAWREVIEW [Vol. See note 56. Civil society. PR ? 167R. ."65Family property must therefore be common propertyby nature.pass over of theirown accord into the interest of the universal. He argues is privateto individualswhen discussingit in the conthat property textof the autonomousindividualwill and that it is essentially common within a family. He does not make the leap to state property. The state is "absolutely rational. In the sphereof political economy." PR ? 258. and in the state "personal individualityand its particular interests . 67." PR ? 157. 66."which I use in this article. For Hegel. By voluntarily witheach other." not as an "independent person. Knox translatedthisword as "ethical life" to it fromMoraztit.when discussing it in the context of the autonomousfamilyunit. the subject of the third Part of his work.68 of the state thus carriesthe seeds of destruction Hegel's theory of all liberalrights attachingto individuals (because in the state particwill passes over into willing the universal).69 Hence. This content downloaded from 5. Translator's Notes to PHILOSPHY OF RIGHT. 141. Hegel also argued that childrenare not propertysince theyare "potential freedom. and the "actuality of concretefreedom. PR ?? 33. PR ? 169. PR 65.Hegel draws conclusionsverysimilar to those theoristswho derive a "minimal" state fromstrictly individualistpremises. cf Knox. "As the privateparticularity of knowingand willing." PR ? 260." PR ? 158.153.13." id In contrast. A more suggestivetranslationof Sitt/zchket mightbe "communitymorality." 69. the subject of the second part of the work. the universality of freedom.even though his theoryof the state mightsuggestit. . PR ? 257. PR ? 171.
activity."70 Hegel at least clearlymakes the claim that a human being can only become properlydeveloped-actualize her freedom-in the contextof a community of others. Since the state is objective mind [Gcist]. See a/so K. he implicitly claims that personhood in the richersense of self-development and differentiation presupposes the contextof human community. PR ? 258R. .and mode of conduct have this substantive and universally valid life as theirstartingpoint and theirresult. Hegel does not make thisclaim. [The individual's] particular satisfaction. But the state's relation to the individual is quite different fromthis. He thoughthis haps because he is too firmly theoryof the state required that the state must take the formof a constitutional in which the monarchand the landed arismonarchy. If theserelationships justifyownership.71 The idea of embodied will. or at least contribute the individualsas such becomes the ultimateend of theirassociation. genuine individuality [Wahrheai].and that these relationships can be very close to a person's center and sanity. this claim has important ramifications fora theory of personal property which does relyon that richersense of personhood. PR ? 305. MARX. and communitymorality. and it follows that membershipof the state is somethingoptional. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . remindsus that people and things have ongoingrelationships which have theirown ebb and flow.153. If accepted.13.First.because that perspective incorporatesthe attributesof personhood that Hegel initially assumes away. B. 7 1. it is only as one of its membersthat the individual himselfhas objectivity. . thoughhe speaksof the personin the sphereof abstractrightonly in the Kantian senseof abstractrationality.the notion that the will is embodied in thingssuggests that the entity we know as a personcannot come to existwithoutboth differentiating itself fromthe physicalenvironment and yet maintainingrelationshipswith portionsof that environment.May 1982] PROPERTY AND PERSONHOOD 977 thereis in Hegel's theorya foundationforthe communitarianclaim is an organic entityin which private property that each community does not make sense. &e note 37 supra. Nevertheless a theoryof personal propertycan build upon some of Hegel's insights.101 on Sat. . perownership rooted in his own time. Hegeland Propert forPersonhood The intuitive personhood perspective on property is not equivalent to Hegelian personalitytheory. This content downloaded from 5. cut loose fromHegel's grand scheme of absolute mind. Thus. 70. tocracy "attain their position by birth" and "possess a will which restson itself alone. CRITIQUE OF HEGEL'S "PHILOSOPHY OF RIGHT" (1843).
TheFuture oftheConcept ofProperty PredWctedfrom Its Past.Pennock & J.This divisionof property resemblesa recurrent kind of critique of real-world property arrangements. Production and Revolution. Property and Soverezgny.978 STANFORD LAWREVIEW [Vol. 104 (J. This might have politicalconsequencesforclaims of the group on certainresourcesof the externalworld (i. property). 1980) (suggesting a distinctionbetween offensive and defensiveuse of property). Van Dyke. Hegel's notionthat ownershiprequirescontinuous embodimentof the will is appealing. Garet. 107. 5 PHIL. The Existence of Groups: An Adjudicative Theory of Group Rights (Ph. ACKERMAN. This content downloaded from 5. Berle. R.Property.D. Withoutaccepting this role forthe state. & PUB. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . See Fiss.Q.If in one's body is not too close to personhoodto be considered property at all. Sci. 73. Cohen.one may stillconclude that in a given social contextcertain groups are likely of their membersin the sense that the members to be constitutive find self-determination only within the groups. L. diss.PRIVATE PROPERTYANDTHE CONSTITUTION116-18. 67 n. in NOMOS XXII. thenit is the clearestcase of property property forpersonhood. 34:957 to itsjustification. 2-3 (1965) (propertyforproduction and propertyforconsumption). 56. Some of theserelationships are examined in textaccompanying notes 118-200. In addition to the critiques discussed in the text of this Part. 149 n. 65 COLUM.74 The underlying insight of the manydualist property theoriesseems to be that some property is accorded morestringent legal protectionthan otherproperty.e. 8 (1927) (property foruse and property forpower). POL. znJ*a. 74. This is not presently a well-developed philosophical literature.Justiceas Fairness.153. REV.For Groups?69 AM. 156 (1977) (social property and legal property).13. PROPERTY 28. The insightthat thereare two kindsof property appears in quite disparate contexts. Donahue. REV. or is otherwise deemed more important than otherproperty by social con72. The property/privacy nexusof the home is also a relatively clear case in our particularhistory and culture. Third.65 (1976).. Groups and theEqual Protection Clause.73 IV.72 Hegel thoughtthat freedom(rational self-determination) was only possible in the contextof a group (the properlyorganized and fully developed state). see B. 1. lIegel's incompletelydeveloped notion that propertyis held by the unit to which one attributes autonomyhas powerfulimplicationsforthe concept of group developmentand group rights. Second.101 on Sat. Yale 1981). Two KINDS OF PROPERTY: THE DICHOTOMY AS CRITIQUE One elementof the intuitive personhoodperspectiveis that propertyforpersonhoodgives rise to a stronger moral claim than other property. AFF. there may be an echo of Hegel's notion of an objective community moralityin the intuitionthat certain kinds of property relationships can be presumedto bear close bonds to personhood. 607 (1975). Chapman eds. 13 CORNELL L.
rather. explicitly The premise of this formof critique is that any dichotomyin property significantly affects thejustification of property in the rights real world. Liberal propertytheorieshave traditionally justified a property rightsscheme by relyingon some paradigm case. CAPITAL ch.in which the basic assumptionis the person in the state of nature. GREEN.Locke. For Locke. J.The personhood property can thus provide a dichotomythat captures this critical perspective intuition and accurately. and a dichotomyis establishedbetweenthatsubsetand forms of property that fall outside the purview of the justification. XXXIII. then thereis room fora new and alisttheories more precisetheoryof the areas of weaker and stronger property. 8 POL. ?? 211-32. K. 78. at 197-221.101 on Sat. the paradigm case was mixing one's labor with the environmentin a state of nature. Marx andHobhouse Marx's distinction between propertyrestingon one's own labor and property on the labor of othersis an example of thiskind resting ofcritique. 1 27.75 But if the paradigm case only applies to a subset of all the thingscalled thenonly that subsetisjustified. 77. I suggestthat the common threadin thesetheoriesrelatesthe stronger claims to recognizedindicia ofpersonhood. he concludes that if property is justifiedunder those conditions.justifiesproperty witha theory ofjust acquisition. To the extentthese theoriesare normative. ch. TheRightofthe StateznRegard to Property. Capitalist or bourgeois property.Marx and Engels allude to a in justification discontinuity based on this distinction: 75. supranote 29. in LECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION.May 1982] PROPERTYAND PERSONHOOD 979 sensus.theyare viewed as distincthistoricalstages. A critique of Hegel in a similar vein is Piper. some property If the areas of greaterand lesserprotectionunder the various ducoincide to any extent. Property and theLimitsoftheSe/f. Aveling trans.his theorycarries the inherentlimitationthat any form of property incompatiblewith freeindividualsis notjustified. MARX. resting at 790 (S. supra note 49. Moore & E. V. Marx said that privateproperty resting on the labor of othersis the "direct antithesis" ofprivateproperty on the producer'sown labor.the claim is that is worthier of protectionthan other property. Id ?? 36-50. 1889). for instance.76 tionsimpliedin the premises. C. 76. property. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . LOCKE.7 A.13. if Locke's claim is that property is justifiedbecause it is a condition necessaryto produce or sustain freeindividuals.153.then it is ipso factojustifiedin the capitalist marketsocietywith money and The leap may lead to incoherenceif it ignoreslimitawage-labor. resting This content downloaded from 5. THEORY 39 (1980).78 In the Communist Manifesto. supra note 3. Critiquesof Locke that reflect thisview are T. MACPHERSON. Marx's two kinds of propertycould not coexist. Thus. In a heroic inferential leap.
generally. 9-11 (2d ed.980 STANFORD LAWREVIEW [Vol. A similar criticism of the classical liberal justification of property is expressed in the dichotomy between property for use and property for power. . etc.79 In this passage. This distinction was later DUTIES ERTY: hen.. supra note 74. things. . supra note 80.13. the control of things. which gives freedom and security. Hobhouse went on to assert that "modern economic conditions have virtually abolished propertyfor use-apart from furniture. ENGELS. 80... The abstractrightof property is apt to ignorethese trifling distinctions . We Communistshave been reproachedwith the desire of abolishingthe rightof personallyacquiring propertyas the fruitof a man's own labour. 1st ed. 79. B. The Hustorzcal Evolutzon ofProperty. AND CRITICAL POSITIONS 81. the developmentof industryhas to a greatextentalready destroyed it. Hobhouse. was the historicalsuccessorof formsof propertyrestingon the fruits of one's own labor. Do you mean the property of the pettyartisan and of the small peasant. and most recently by C. but not property for "control of persons through things. at 9-1 1. MacPherson. THE COMMUNIST MANIFESTO 96 (Penguin Books ed. 1888). T. which property is alleged to be the groundwork of all personal freedom.. znFact and znIdea. This content downloaded from 5. introduced early in this century by L.Now these two functions of property. in PROPERTY: ITS AND RIGHTS 3. but something wherebyhe can controlanotherman and make it the basis of that man's labour and the scene of activitiesordered by himself.and the control of persons through which gives power to the owner. ." while bringing about "the accumulation of vast on wage labor. In some respectstheyare radically opposed . Property in the means of production is not the type of property that forms the basis for personal freedom.which he can make the basis of his labour and the scene of his ordered activities.. a form of propertythat preceded the bourgeois form?There is no need to abolish that. "control of persons through things" cannot be so justified. Hobhouse distinguishes "use" and "power" as two "social aspects of property" and he implies that the classical theory justifies property for use. "80 In a developed societya man's propertyis not merelysomething which he controlsand enjoys.101 on Sat. Id ch. Moore trans..are verydifferent... 1979) (S. .81 This passage implies that while "control of things" might be justified by the classical theory. . 1922). K. activityand independence . in PROP- noted by Morris Co- 1. Marx and Engels implicitly criticize liberal theories based on personality or on labor-desert as being inapplicable to capitalism. 12 (1978)... 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . MAINSTREAM Hobhouse. clothing.. The Meaning of Property.153. Hobhouse. MARX & F. 34:957 The distinguishing featureof Communism is not the abolition of property but the abolition of bourgeois property. and is stilldestroying it daily. XXXII.
13. see Stillman.that is. in Hegels and Marx'sPoliticalThought. the second focuses on the effect ofcertaintypesofproperty arrangements on personal expressionand development. 122 (1979). supranote 49. Freedom and Private in Marx. of course.Perhaps Marx would accept the idea that some solidityof expectationsbased on the freedom to fuseoneselfby one's efforts with the externalenvironment is justifiedbecause that act is bound up 82.May 1982] class. This content downloaded from 5. 83. between of something one has labored on and ownershipof things ownership others have labored on. ??227-31. but does not assert that privateownership of thingslabored on by oneselfis necessarily justified. Suggestivepassages are found in Marx & Engels. Tucker ed. work on. This. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .and the lifewhich theyserveas means is the life ofpnrvateproperty-labour and conversioninto capital. Although private property itself again conceivesall these directrealizationsof possessionas means oflife. They merelyargued that. howeverdistorted. See note 78 supra. While the first featurereflects the persistent insightthat the conceptof personhoodnecessarily includes some kinds of continuingrelationships with the external environment.supranote 49. H.-in short. both formulatea in property in termsof the purposesof the personexercisdichotomy ing controlover it.. a mere means to his existence."82 PROPERTY AND PERSONHOOD 981 masses of property forpower in the hands of a relativelynarrow This argumenthas in common with Marx two importantfeatures. AFF.both critiquesassume that human individualityand autonomybear some relation to one's freedomto use. Yet English reresting formers such as Hobhouse-and T. and formexpectationsabout the resourcesof the external environment. The German Ideology. drunk. Id at 23. 8 PHIL. and in Marx's discourseon estrangedor alienated labor in Marx. being. but that wage-laborperverts them. Brenkert.sounds similar to Marx's insistencethat propertyresting on the employmentof others' labor must inevitablybe the historicalsuccessor of property on the employmentof the producer's own labor. In the Marxist dichotomy.insofar as capitalistlaws and institutions do resultin such a property-less proletariat. Marx's point was not that objectrelations are unimportant.when it is used by us. On Marx and property.Property.etc. theyare unjustified and should be reformed. or when it is directlypossessed. Marx asserts that private ownership of thingslabored on by othersis unjustified. 1sted. in THE MARX-ENGELs READER 52 (R. Economic and PhilosophIcal Manuscripts of 1844. 1972). This impliesthat thereis some core of insight.worn. in the classical liberal theoriesof property. andIndwizduality Freedom. Privateproperty has made us so stupid and one-sided that an object is onlyours when we have it-when it exists forus as capital. Id at 73.83 Second. eaten.153. 1sted.101 on Sat. in THE MARX-ENGELS READER 110 (R. on the personhood which is supposed to be theirrazson d'`tre.See Green. Tucker ed. 1972).First. Wage-labor makes man's "lifehis essential activity. Green beforehim--did not assertthat capitalism must necessarilyresult in property-less (and thereforedehumanized) proletarian masses. & Property PUB.one can clearly distiguish.inhabited." Id at 62.
? 4. 85. In a societybased on barterbetween producerswho know each other. eds. MARX. G. forproperty held for"use value" than property stronger justification held for"exchange value. Marx used the term "value" simplyto referto the amount of labor socially necessaryto produce a commodity. supra. and a Distinctive of Contradictzon Advanced in MARKETS AND MORALS 107 (G.982 STANFORD LAW REVIEW [Vol. rather. ? 1. For more discussionof theseconcepts. This content downloaded from 5. I. To put this roughlyin Marxist in a marketsociety this perspectivewould provide a terminology. See K. Though Marx introducedno element of subjective intent. supra note 78.Leisure. man proves himselfa conscious species being .even though he was not of the artisan fromits willingto extractwhat he called the property he spoke of alienated labor historical period. 87. 34:957 with autonomy and individualityin a way not historicallydetermined by capitalistrelationsof production. Labor.Id ch. Brown Capzialism.13."that is.101 on Sat. CAPITAL. 86. supranote 78 ch. "Use-value" is the utilityto the consumer: "Use-values become a realityonly by use or consumption: they also constitutethe substance of all wealth. at 62. See note 78. ch.whichwas man's "species being. In the sectionof theEconomic andPhilosophitc on estrangedlabor.153.see Cohen. Marx stated: "In creatingan objective Manuscripts worldby his practical activity. whatevermay be the social formof that wealth.. MARX. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . supranote 83. "Exchange value" is basically what economistscall market value.86If one has a personhoodperspectiveand feels that a relationshipbewhen resources are bound up with tweenpersonand thingis stronger the individualthan when theyare freeto be traded or held fortrade. Marx did not hold that merelyproducingcommoditiesforexchange with other commoditieswas alienating. "Species being" stemsfromMarx's termGattungswesen. I. in working-up inorganicnature.one between laboring on resourcesthat are inmightwish to distinguish tended to remain bound up with one's own life and laboring on resourcesthat one intendsto use to make exchanges with others."87 Perhaps Hobhouse's dichotomyis meant to capture this kind of intuition." Id at 2-3. This distinction assumes the existenceof a marketsociety. This productionis his actiye species life. CAPITAL.this fetishism of commoditieswould not develop. see text accompanyingnotes 47-48 supra.But Hobhouse's distinction between propertyforuse and 84. I. K. is not alienated has an integrated relationship workedon could therebylegitiit would not followthat everything matelybecome property.. 1977).. Bermant & P. he held that alienation was produced by the "fetishism of commodities. thenone could more easilyjustifyownershipwhere resourcesare to be bound up with one's own life.84In his early writings as a perversion of man's nature as a laborer at one with his environment."85Althoughthe laborer who withthe environment. Dworkin." Economic and Philosophic Manuscripts of 1844. producing commoditiesfor market exchange.
whose "principal objective is to protect Layman's understanding of his relationshipto his things." In associating propertyforuse with something one can make "the scene of his ordered activities. at least against the government. supra note 74. It states that claims so based on social consensusare stronger.153. then it is Marx's dichotomyminus Marx's assertion that the two could not historically typesof property coexist. at 116-18.89Apparentlythis is the way subsequent writersinterpret the distinctionbetween propertyforuse and propertyfor power. A theorythat takes intentinto account need not be normative. Ackerman'sdichotomydiffers fromthe Hobhouse use/powerdichotomyin being formulated only in termsof whetheror not social consensus (the ordinarylanguage of social intercourse in the cultural mainstream)supportsa claim. 90. 91. 89. than claims not so based.88 It is not clear whetherthe status of the property holder as produceror non-producer is the only releor whetherthe intentof the holder also counts.the dichotomyis firmly based on the subjective way individuals value things. he seems to associate propertyfor use with personalproperty." Id at 117.That is. When Ackerman says his Ordinary Observer will distinguishbetween social propertyand legal propertyin interpreting the takingsclause of the fifth amendment. If this is all that Hobhouse means. Legal propertyis a claim that Layman does not believe is justified"without appealing to the opinion of a legal specialist.91 88. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . Hobhouse seems to associate propertyforuse simplywith that produced by one's own labor and propertyforpower simplywith that produced by the labor of others. Eg. This for- This content downloaded from 5.. It also exhibitsthe logical problem that all propertygives power over othersin the sense that it confers enforceableclaims on the holder and hence power to have themenforced. Cohen." Hobhouse seems to contemplate the continuing control and conof expectationwith regard to some resourcein the external tinuity environment. then he would have had to consider intentwith which an individual values something. the dichotomy meant to be between propertyvalued by an individual producingit onlyforits "use value" and all otherproperty?Or is it betweenproperty held by the individualproducingit and all other property? Intent may be irrelevant for Hobhouse as it is for Marx. See note 78 supra. ACKERMAN. Social property is a claim based on "existingsocial practiceswhich any well-socializedperson should recognizeas markinga thingout as Layman'sthing. and interpret the takingsclause Id accordingly. 156-57. supra note 74. Is vant distinction.101 on Sat." Id Ackerman'sObserving Judge."will considersocial propertya stronger claim against government interference than legal property.13. B.May 1982] PROPERTY AND PERSONHOOD 983 property forpowerremainsvague.90 Yet in Hobhouse there are tracesof the intuition whichI likenedto the distinction between "use value" and "exchange value.If the foundationof Hobhouse's dichotomywas a concernthat a justification of property that purportsto reston individual freedom could not extend to cover instancesof propertythat restrict individual freedom.
it seems that the inalienable entitlements theypoint to are not of the sorttraditionally thoughtof as propertyrights. maximizationofwelfare.or ifA can obtain an injunctionto preventB's interference. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . supranote 3. therewill also be no reason for distinctions between propertyentitlements and other kinds of individual entitlements except fordeferenceto linguistictradition. yet factoryownershipseems less related to the core individualistjustificationin termsof selfhood. If. so thereis only one kind of property-that which resultsin maximization of welfare. The Calabresi-Melamed use of the term "propertyrule" seems to bend the language.a "good" and not merelyan undifferentiated attribute of the environment) is the subject of an entitlement.thoughambiguously. Ru/es. An entitlement is protectedby a liabilityrule ifB can obtain it from A by payingsome extrinsically determinedprice (such as the "market" price).some utilitariansmight claim that sincethereis onlyone social goal.unlesssocial consensusconstitutes of a property justification claim. his formulation missesthe intuitionexpressed. In fact. REV.y In apparent contrast to these assertionsthat certain property claims are stronger than others. 92. One Vi'ew ofthe 85 HARv.984 STANFORD LAWREVIEW [Vol.on the otherhand. Both ownership of a factoryand ownership of a homestead are social propertyin our society.in the use/power distinction. In the incarnationof utilitarianism knownas economic analysisof law. 94.101 on Sat. theyalso designatea categoryof "inalienable" entitlements.or ifA can obtain only damages on account ofB's interference. 93.93An entitlement is protectedby a propertyrule if B can obtain it from A only by paying whateverprice A sets as a willing seller. To some extent. No one may choose to submit to murderor to sell herselfinto slavery. and if the ultimatejustificationof propertyis in termsof autonomyand self-hood. Ackermanintendsa normativedistinction. An entitlement to bodily integ- This content downloaded from 5. In this utilitarianscheme.it is not. zn/ra. But unlike the use/ power dichotomyit need not be related to the ultimatejustificationof property. Calabresi & Melamed. 1089 (1972). L.at least if owned in fee simple absolute. A Utizitarzkn Dzchotom. This is a cultural-historical of Posner's "universality"criterion interpretation foran efficient systemof propertyrights. Posner'spositionrepresents thisview: Efficiency will be maximized only when anythingthat is scarce in the relevant human societyduring the relevanttimeperiod (thus. In general. Liability and Ina/ienab6dzoy.13.since Cathedral. The CalabresiMelamed distinction betweenprotecting entitlements with "property rules"or "liabilityrules" is now a widelyrecognizedtool of economic analysis.thissystem does not correspondto the ordinarymeaning of property94Most mulationembodies the notion that property based on consensusmoralityis a stronger claim.See note 94. thereis no role fora distinction betweenpersonal rights and property rights. and may therebybe indirectlyrelated to individual moral autonomy. Property Ru/es. POSNER. 34:957 B.153.92 Yet thosewho espouse utilitarianism in the formof instrumental economics have elaborated a hierarchyof remedzes. R. even ifA is not a willingseller. Their hierarchyis not really a dichotomy.
. Ellickson has attempted to identify situationsin which somethingcan be said about these "distributional"concerns.not just because it is ostensiblyabout remediesand not the initialsettingof entitlements. supra note 3. NICHOLS. but also because it is formulated merelyas a statementthat different levels of protection do exist.that some kindsof entitlements are more worthyof protectionthan others.On theChoie Between Property Rulesand Liabilt'y Rules.and Fines as Land Use Controls. LEGAL STUD. REV.withouttelling us which items deserve which levels. All are simply goods. 98. NICHOLS' THE LAW OF EMINENT DOMAIN chs. See.and the thoughtpersists. Alternatives to Zoning. Eg. R. Polinsky. as well as help us to critiqueit where it goes wrong.101 on Sat.13. Calabresi & Melamed. supranote 93.99 Here I merely want to thatthe problemof levelsof entitlements reemphasize is verymuch a live issue. Ellickson. L. all have prices. Controlling Externalities and Protecting Entitlements.95 On the other hand. 18 ECON. at 1110.g. Polinsky. The distinction between propertyand liabilityrules is different fromthe othersmentioned. some rightsnot called property. StateConstitutional on thePowerofEminent Ltmitations Domatn.It should be possible to give moral reasons why some claims are or should be subjectto greaterprotection(eitherinalienabilityor propor freespeech is not different rity in kind froman entitlement to exclusive use of some object or resourcein the externalworld. 1 (1979).98Without attempting have investigated or interactionwith efficiency to outline theireffect concerns. See generally Berman v. ity Rule. 348 U.or free-rider or holdout problems. An Economic and Legal Anal'ysis. Sackman & R. 1981). 8J. 40 U.96 protectedby property Calabresi and Melamed sketchsome efficiency considerations for and liabilityrules. Parker. at 1106-10.Calabresi and Melamed also recognize that "distributional"considerations may be relevant to such a choice. This content downloaded from 5. like freedomfrombodily intrusion. Nuisance Rules.97 and others makingthe choice betweenproperty the problemin more depth. 97. CHI. L. INQUIRY 233 (1980). supra. Covenants. at 111-16 (sale of babies should be legalized). of the allocative efficiency Writers school suggestthat the criterion fora lesserlevel of protectionis the presenceof any condition that might block markettransactionsfromachieving the efficient outcome. supra note 93. Note.. POSNER. 385 (1977).such as information costs. 681 (1973). 1 P. But inalienability would often be disfavoredby markettheorists on efficiency grounds.Suburban Growth Controls. am interested moral theorywhich would providean alternative explanation forthe observedhierarchy of protection. 26 (1954). e.May 1982] PROPERTY AND PERSONHOOD 985 called property are protectedagainst the governrights traditionally mentonly by a liabilityrule. Or by inalienabilityrules. 96.77 HARV. 99. 3d ed. Property LiabilRight. are traditionally rules. forwhateverreasons. Calabresi & Melamed. andTax-SubsidyApproaches. 86 YALE LJ. Van Brunt rev.153. 717 (1964). See note 93. I-III U. 95. I in developing a non-utilitarian. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .S. Ellickson. REV.
the more one mightscrutinize the "voluntariness"of the transactionby which it is relinquished.153. the personhoodperspective generatesa hierarchy of entitlements: The more closelyconnectedwith personhood. In thisway the dichotomybetween personal and fungiblepropertyis similar to C. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . but simply that distinctionsare sometimes warranted depending upon the character or strengthof the connection.but a fewwordsare necessary.because the issue is when the law ought to disallow or void someone's attempt to relinquish an item voluntarily. as between individuals or between individuals and the government. Second. Edwin Baker's distinction between valuing activitiessubstantively(i. in Collective Baker.e. to personhoodto thinkof as property.such an exerciseis trivialto thoroughgoing ethical subjectivists. Easy examples of contractsthat would be disallowed would be sellingoneselfinto slaveryor agreeing to commit suicide. REV.as well as property.I findconvincingthe argumentthat inalienabilityattaches to personhooditself. 101.102 100. See textaccompanyingnotes 9-48 supra. This would requirean objective moral consensusabout the protectedobjects.L. 102.13. e. supra note 93. 472 (1980). In addition.986 STANFORD LAWREVIEW [Vol.89 YALE.A. more problematically.since some theoristswould not consider choices motivated by dire economic necessity "voluntary" enough to validate a transaction relinquishing a clearlypersonal item. at 1111-13. Counting Preferences Choice Situations.101 C.C. See. L. ThePersonhood Dzchotomy The personhooddichotomycomes about in the following way: A of property generaljustification entitlements in termsof their relationshipto personhoodcould hold that the rightsthat come within the generaljustification forma continuumfromfungibleto personal.in the Calabresi-Melamed terminology. The analysis becomes entwined with wealth distributionarguments. 34:957 either ertyrules)than others(eitherliabilityrulesor no entitlement)..contract.Calabresi & Melamed. discussionhere will be conespeciallythe criteriaforinalienability. these reasons are mere "moralisms.g. Distinguishing"inalienabilityrules" from"propertyrules" is an importantproblem that implicatesthe nature of contract.theremay be classes of transactions which should be presumedinvalid (hence categoriesof inalienability)because of the costs of case-by-caseinvestigation and the riskof erroragainst the "involuntary"seller.100 Though much mightbe said about the other distinctions..inalienabilitymight also attach to rights that are not too close to personhoodto be consideredproperty. 393-99 (1978). 25 U. the more an object seems to be personal. Thus."just another word for strongsubjectivepreferences. to property finedprimarily rules versusliabilityrules.J. Kronman.the stronger the entitlement.101 on Sat. This problem is beyond the scope of the presentarticle. and probably to rightsthat are too close cf Hegel's argument. Contract Law and Distributive Juslice. Of course. This is to argue not that fungibleproperty rightsare unrelatedto personhood. This content downloaded from 5. but which are at the personal end of the metaphorical continuum running frompersonal to fungible. less easy would be contractsto sell one's child or one's kidney. 381. intrinsically) and valuing theminstrumentally. supranote 59. Finally. L. First. may be perceived based on personhood. It thenmighthold thatthoserights near one end of the continuumfungible property rights-can be overriddenin some cases in which thosenear the other-personal property rights-cannot be.
not where and how it starts out. CHI. personal and fungible? I thinkthe answer is yes in many situations. 681.153.and not on the objective arrangements surrounding productionof the thing. Ellickson. REV. 104. It differs the Marxistdistinction betweenproperty resting on the labor of othersand property restingon one's own labor because it focuseson where a commodityends up. The same claim can change fromfungibleto personal depending on who holds it.101 on Sat.13.105 Though theyall derive froma common central insight. See. the subjectivenatureof the relationships it makesmoresenseto thinkof a continuumthat rangesfroma thing indispensableto someone's being to a thingwholly interchangeable withmoney. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . The wedding ring is fungibleto the artisan who made it and now holds it forexchange even though it is propertyrestingon the artisan's own labor. NuisanceRules.the personhood hierarchy is different fromthe property dichotomiesI cited from earlier.103 For example. such legal as homesteadingand special mortgageredemptionrightsshow a degree of special protections concern..May 1982] PROPERTYAND PERSONHOOD 987 Does it make sense to speak of two levels of property.it must telescoping be because withina givensocial contextcertaintypesof person-thing are understoodto fall close to one end or the other of relationships the continuum.it focuseson the person with whom it ends up-on an internalquality in the holder or a subjective relationshipbetweenthe holder and the thing. 105. e. Since the personhood perspectivedepends partly on between person and thing.104 There is both a positive sense that people are bound up with theirhomes and a normative sense that this is not fetishistic. the same item can change fromfungi103. While residencesare not specially protected against eminent domain. Many relationships betweenpersonsand thingswill fall somewherein the middle of this continuum. 735-37 (1973) (suggesting"bonus" systemto give approximatecompensationforconsumersurplus). An economistwould tend to findthat substantialconsumersurplus attaches to people's homes.Aithematives to Zoning: Covenants. L. In addition. Conversely. This content downloaded from 5.no in many others. See textaccompanyingnotes 118-62 infra.g. 40 U. If a dichotomy thiscontinuumto two end points is to be useful. See Part II supra.and Fines as Land Use ControZs. Perhaps the entrepreneur factory ownerhas ownershipof a particularfactory and its machines bound up with her being to some degree. so thatdecisionmakers withinthat social contextcan use thedichotomy as a guide to determine whichproperty is worthier of protection. in our social contexta house that is owned by someone who residesthere is generallyunderstoodto be towardthe personalend of the continuum.
Economists typicallyrely on efficiency criteria and not on the perspective of autonomy or personhood in seeking to determinewhethercertain entitlements should be accorded greater protection than others. by focusingattentionon the importanceof certain propertyto self-constitution. can avoid some distortions that mightresultfrom in which all enjustifications titlements are considered alike.109 106. Welfare Rzghts and A Dzchotomy zn Property The personhooddichotomyin property. See note 101 supra.101 on Sat. If that were true. when fungible claims of the rich deprivethe poor of meaningfulopforpersonhood. See text accompanying notes 93-100 supra. Since Hobhouse's "use/power" distinction seems to be merelyan ambiguous amalgam of the two Marxist distinctions just 106 it too would not correspond to the personhood mentioned.much that is now protectedby a propertyrule-for example. 109. Such a scheme might hold that personal rightsor civil libertiesare derived frompropertyrights. 108. See textaccompanyingnotes 97-100 supra. whateverpatternof entitlements that resultsfromthe voluntaryinteractionof This content downloaded from 5. But although the problem does not reportunities duce to such nice simplicity. In that respect. People and things become intertwined gradually.propertyrightsmightswallow up other concerns. In a neo-Lockean natural rightsscheme. one mightclaim that at least personal should be protectedby property property rules. 107. propertyheld only for investment-is overprotected. 34:957 ble to personalover timewithoutchanginghands. The Calabrese-Melamed distinction between propertyrules and it merelyrecognizesthat some enliabilityrulesis initially positivist. which exist a priori in persons. See text accompanying notes 88-91 supra. since some thingsheld for "use value" are still not bound up with personhood.153. All entitlements are treatedalike in the economic model. Once the government has mechanismsforensuringthat people's a priori rightsare not violated. 107 In orderto make it are harderto extinguish titlements than others. take on a moral function. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . dichotomy.Yet it would not be revolutionary enough forthose who thinkfungibleproperty should not always be protectedeven by liabilityrules-for example.988 STANFORD LAWREVIEW [Vol.13. See note 94 supra.108 D. The claim that fungible propertyshould not override personhood interestsof others is not considered radical when the personhood interestat stake is so close to personhood that we hold it to be inalienable. therewould be a nice simplicity in hypothshould be protectedby property esizingthat personalproperty rules and that fungibleproperty should be protectedby liabilityrules. The personhoodhierarchyalso does not correspondto the implicitMarxistdistinction between"use value" and "exchange value".the claim would be trulyrevolutionary.
g. REV 877 (1976). ANARCHY. BAR J. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . 269 (1978). Sparkman. The Disintegration of Property.TheRecrudescence Rights as the ofProperty Foremost Princple of Civil Liberties.See.that recognizing the distinctionbetween fungible and personal propertymight be a preferable approach leading to a similarresult. e.101 on Sat. he calls for "new property"rightsin governmentlargess to the extentnecessaryto maintain people's independence fromgovernment. Chapman eds. and is one response to perceivedinjusticesof a Lockean natural rightsscheme. A welfarerightstheorymighthold that entitlements to one's "just wants" based on the needs of personhood are to be given preference over other kindsof entitlements.where thing-ownership seems embedded in the ideas of self-constitution throughobject relations. We/fare Rightsin a ConstitutionalDemocrac. the distinctionbetween property and other rightsbreaks down. STATE AND UTOPIA (1974). 733 (1964). 659.'10 In such a scheme. R.Pennock & J. 113. 28 STAN. shelter.1"' There would be room for a personhooddichotomy but it would not be relatedto interests traditionally called property.May 1982] PROPERTY AND PERSONHOOD 989 It mightbe argued. 112.and then call them "property.g. 111. employmentand health care. the categoriesof ordinarylanguage the right-holders must not be disturbed.g.Property and Need: The We/fare Stateand Theories ofDistributive Justice. Grey. not a dichotomyin property.however.153. PROPERTY 69 (J. supra note 110. Note as well Senator John Sparkman's polemic against the Civil Rights Bill because of its threatto property rights. L.See. NOZICK." This is the tendency of Reich's "functional"approach.supra note 110.112 Whether or not the personhooddichotomy in property is usefulin such a theory depends on whetherit makes sense. See Van Alstyne. Grey. 31 (1964). TAKING RIGHTS SERIOUSLY 81-84. 1980). Court. Michelman. DWORKIN. Michelman.L. such as free speech. In the real world. to maintain a distinctionbetweenproperty and non-property rights. Reich.'13 I thinkthat it does make sense. I would argue.13.in the contextof a largerpersonhooddichotomyin entitlements.. in NOMOS XXII. 73 YALE LJ. Such a transformation aids in curtailingproperty rightsforthe sake of the goals of the welfarestate.a political system mustprotectproperty.. Note Dworkin's "rightsthesis. A welfarerights theory mightderive fromthe needs of personhooda setof core entitlements encompassingboth property such as interests. The New Property. U.Under such a scheme. It would allow curtailingfungiblepropertyrightswithout relinquishingthe notion of thing-ownership in personal property. CivilRights andProperty 24 FED. Rights.. Grey. therebydoing all it can to protectautonomyor personhood. R. Grey argues that the distinctionbetween propertyrightsand non-property rights loses its significancewhen a "bundle-of-rights" conception of propertyis substitutedfor a "thing-ownership" conception of property. See. e.The generaltaskof such a welfaretheory would be to carve out forprotection a core containingboth property interestsand otherinterests."holding that certain rightsbased upon the equal concernand respectdue personsmust "trump" utilitarianconcerns. however. e.that what a personhoodperspective dictatesis a dichotomy in entitlements. This content downloaded from 5.The FirstDecade of theBurger 43 LAW & CONTEMP.and other interests.Q. 1979 WASH. 110. 66 (1980). PROBS. Anotherapproach that also has the effect of doing away with any intrinsicdifference betweenproperty and non-property is simplyto identify rights all claims or interests that the government ought to protect.
115. 117. carveout of all personhoodrights a subcategory of personal property suggeststhat to say that propertyis a propertyof persons may be morethanjust wordplay. This content downloaded from 5. But a welfarerightstheoryincorporatingpropertyfor personhood would suggest not only that distribute government largessin order to make it possible forpeople to buy property in which to constitute themselves'16 but would further suggestthat governmentshould rearrange propertyrightsso thatfungible ofsome people does not overwhelmthe opporproperty tunitiesof the rest to constitutethemselvesin property.101 on Sat. See text accompanyingnotes 122-33 tn.153. For example. ratherthan simplydistributemoney to tenants (or provide housing itself. supra note 111. 116. This might followfromReich's argument that largess should become "property" so it could fulfill the function-making people independent of the government-which he saw the prevailingpatternof propertyrightsas failingto fulfill. The nature of our perceptionof "things" may be implicated. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . it would suggestthat should make it possible forall citizensto have whatever government is necessary property forpersonhood. and culture seem reason enough to maintain the distinction. paying attentionto the notion of personal propertywould lead not merelyto a rightto shelterin general. if one assumes that independence fromgovernmentis necessaryforself-constitution and that must make self-constitution government possible.even though.rather than simply tell the government to dole out Curtailingfungiblepropertyrightsthat impinge on others' opforself-constitution portunities may seem a more radical sort of reform than wealth redistributionthrough taxation. If the personhooddichotomy in property is taken as the source of a distributivemandate as part of such a generaltheory.and it may be worthnoticing the difference sometimes. forexample. The attachmentto "things"may be differothernecessities ent from of personhood.it would not determine questionsofjust distribution. but a rightto a particular house or apartment. by itself. it would tell the governmentto curtail landlords' rightsagainst tenants. in the issue of when government action constitutes a taking.990 STANFORD LAWREVIEW [Vol. The connotations of property as externalobjects reflect ordinary our perceptionofthe worldin terms ofcertainaggregations 114 To of stimuli.13. But purely 114./a. That is. For example. a welfarerightstheoryincorporatingthe right to personal property would tell the government to cease allowing one person to impinge on the personhoodof anotherby means of her controlover tangible resources. see Reich. &e text accompanying notes 163-81 bnifa. 34:957 117 resources.115 A welfarerightsor minimal entitlement theoryof just distribution mighthold that a government that respectspersonhood must guaranteecitizensall entitlements necessaryforpersonhood.
Anotherexample of the nexus is Ravin v. 537 P.y. The decision restedon the rightto privacy granted in Alaska's state constitution.S. Although the Court 118.18 with its mixtureof first and sanctity-of-the-home 19 In Stanamendment. A clear example of the nexus is Stanley v. Lzbery andbprvaEy. reasoning. Georgia . Two KINDS OF PROPERTY: A SELECTIVE SURVEY This Part surveysa number of disparate legal issues from the ofproperty viewpoint forpersonhood.Although such a survey does not amount to a systematic critiqueof the current allocation of property it nonethelessdemonstrates rights. and how itsexplicit perspective application can help resolvesome recurrent problems. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . The idea of the sanctity of the home is a rich fieldforexamining property forpersonhoodin the positive law. These issuesrepresent typesof cases in which the rough dichotomybetween personal and fungible property approximatesthe world well enough to be useful. unless doing so only forthe holders rights of certain assets would under the circumstancesviolate accepted normsof equality.and freedomof association. l.. The two are obviously but in reasoningas well as in the result. The home is a moral nexus between liberty.101 on Sat.2d 494 (1975). at 501. TheSancizyoftheHome 1.153.S. both how thepersonhood is implicitin our law. Connecticut."' Id. 493." 537 P.P.381 U. Kantner. Its two bulwarksare personal autonomy and the sanctityof the home. quoting State v. 315 (1972) (Levinson. dissenting).permitting taxation to provide largess forthe poor. The court said that "the right ambiguouslyintertwined to privacy'guaranteesto the individual the fullmeasure of controlover his own personality consistent with the security of himselfand others. This content downloaded from 5.13. privacy.2d at 504. 486 (1965). fourthand fifth not omitting amendments). 471. the SupremeCourt held that a state may not prosecutea person forpossessingobscene materials in her home. 53 Hawaii 327. State of Alaska. 557 (1969).May 1982] PROPERTY AND PERSONHOOD 991 is just like any other formof wealth. 119. it may equally permitcurtailingfungibleproperty that impingeon the poor. If a welfare fungible property rights theoryof distribution makes personhood interests take precedence oversome claims to wealth. privacy. A. The court also said that the home "carrieswith it associationsand meaningswhich make it particularlyimportantas the situsof privacy.2d 306. V.J. notice of the reference to "marital bedrooms" in Griswoldv.The opinion is not a straightforward analysis but rathera set of ruminations on the various meanings of privacy in the law and in common sense. The court in fact thoughtthat much of the Bill of Rights was aimed at or interpretedin light of the sanctity of the home (third. in whichthe Alaska Supreme Court held that the state could not criminalizepossessionof marijuana forpersonal use in one's home. 394 U.
at 565. that thereare certaintypesof materialsthat the individual may not read or even possess . . The home is affirmatively part of oneself-propertyforpersonhood-and not just the agreed-onlocale forprotectionfromoutside interference. If the FirstAmendmentmeans anything. Furtherreasoningis needed to get fromthe privacy rationale to a "sanctityof the home" rationale. 34:957 restedits holding on the "philosophyof the first amendment. But if libertyis the reason for limitingthe government in such a case. This content downloaded from 5.101 on Sat. There is also the feelingthat it would be an insultforthe state to invade one's home because it is the scene of and future. The ofthe home as an aspect of the personhoodperspective sanctity seems to be at workin the moderndevelopmentof the law of landlord and tenant. e. See. Whatever may be the justificationsfor other statutes regulating obscenity. 121. "Georgia contends. it containsa strandof property forpersonhood. In other words.we can readilysee that thisis whereto set arbitrary 121 offthe necessaryprivatesanctuary. then the rationale has nothingto do with wherethe actor is when she tries to exercise her will. Courts frequently picturethe residentiallease transactionas 120. .992 STANFORD LAWREVIEW [Vol..S. supranote 7. L.153. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . it means that a State has no businesstellinga man. 984-85 (1978). be a landlord's propertytoo.one embodiesor constitutes oneselfthere.g. . Social convention and people's normal expectationsmake the home a logical place to consider the will least limited." it is apparent that the Court was influencedby an appreciation of our society'straditionalconnectionbetween one's home and one's sense of autonomyand personhood." 394 U. sitting alone in his own house. . what books he may read or what filmshe may watch.such government is an inprescription of an aspect of personhoodin the Kantian sense of autonfringement omy or arbitrary will. we do not thinktheyreach into the privacy of one's own home.120 One reason the government should not prescribewhat one may do in one's home is liberty. 2. Residential tenancy as property forpersonhood One problemis that someone's home may not be exclusivelyher it may simultaneously property. It is not just that libertyneeds some sanctuaryand the home is a logical one to choose because of social consensus.13. TRIBE. one's history one's life and growth. . The argumentwould be that people do not have sufficient liberty unlesstheyhave some realm shut offfromthe interference of others. There is more to the rationale based on sanctityof the home. The liberty rationalecan be bent into a privacyrationaleby considering the limitationson liberty set by the presenceand activitiesof otherpeople. at 906-07.
28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .D. and many state legislatures followedsuit..1-5. 10 Cal.13. 704 (1974). 3d 129. 428 F. a tenantseeks to purchase fromhis landlord shelterfor a specifiedperiod of time. The landlord sells housing as a commercial businessman and has much greateropportunity.6 (1977). 925 (1970): Today's urban tenants. REV.U. but it may be an entirelyunwarranted generalizationfor other communities in diverse states that have adopted the same rationales. 1022-23. See Javins v.L. notjust poor ones.or rentthe remodeledbasementor attic of theirhome.Housing Policy. 130 Cal.). In a lease contract. Viewing the leasehold as personal property recognizesa claim in all apartmentdwellers. The inequality in bargaining power between landlord and tenant has been well documented .Some landlordslive in one halfof a duplex and rent theotherhalf. First Nat'l Realty Corp.Courts began to in questionas more closelyrelated to the personhood view the rights of the tenantthan to that of the landlord. .S. 111 Cal.the vast majorityof whom live in multiple dwelling houses. See also Birkenfeld v. could reflect merelya convictionabout wealthredistribution. mean that landlords place tenantsin a take it or leave it situation.153. City of Berkeley. The common law revolution in tenants'rights. Some tenantsrentan apartmentso that membersof theirfirmwill have a place to conduct confidential business. to the extentit reliesonly on landlords being richand tenantsbeing poor. but solely in "a house suitable foroccupation. Superior Court. . Codesand Tenant Housing Remedies: An Integration. 550 P. A similarity existsbetween the development of tenure rightsin residentialtenancies and tenurerights injobs. 124. 465.123 Of course. The pictureof a poor tenantand commerciallandlord may have been a fairgeneralization forresidentialtenanciesin Washington. this picture of the transactionis overgeneralized. Various impediments to competition in the rental housing market." .122 This is one basis forthe revolution in tenants'rights. 400 U. 158-59. Rptr. See RESTATEMENT (SECOND) OF PROPERTY ?? 5. denied. where the revolution in the common law began.2d 1168..May 1982] PROPERTYAND PERSONHOOD 993 takingplace betweena poor or middle-classtenantacquiring a home and a businessenterprise owningand leasing residentialproperty. Abbott. Cir.'24 But it is my thesisthat the intuition that the 122. .and accordinglymoved to protectthe leasehold as the tenant's home. incentiveand capacity to inspect and maintain the conditionof his building.17 Cal. . GLENDON. 1 (1976). 123. not in the land. . Rptr. 1078-79 (D. 3d 616.2d 1071. Thirteenstates have enacted the UniformResidential Landlord and Tenant Act (1974) [hereinafter cited as URLTA]. 56 B. See M. Green v. One mightexplain both of thesedevelopmentson the basis of general norms forwealth distribution or on the basis of moral reasoningabout what rightsare necessaryto This content downloaded from 5. THE NEW FAMILY AND THE NEW PROPERTY 143-205 (1981).C. cert. . 517 P.such as racial and class discriminationand standardized form leases. and the implied warrantyof habitabilityhas become the majorityrule on the duty to maintain the premises.2d 1001. . with its liberal positionson tenants' rightsand remedies.C. are interested. 486-87 (1976).101 on Sat.
400 U. First Nat'l Realty Corp.S.). New tenants'rightsare grantedto all tenants. .regardless of what the lease contractsays about the term. Hirsh. ? 2A:18-61. building [etc. The difficulties denied. the attachmentof selfto a particularplace with its particularcontextof objects.(2) making the habitabilityrightsinalienable (non-waivable) moves them out of the realm of contractand into the realm of property.especially where rent controlstatutesallow uncontrolled price increaseswhen the unitsare vacated. Courts imposingwarranties of habitabilityoftensay theyare simplyapplying contractrules to leases. 135 (1921).. e. 925 (1970). &e. Yet I would argue thatsomething is "leftover" with regard to residentialtenancies.125 The notion that the law should grant permanenttenure to tenants duringgood behavior.. Cir. STAT.g. the landlord'sreversion sinceit renders conditionaland thus in effect changes the time-honored meaning of fee simple absolute. Although this kind of statute seems to be a direct manifestationof the pershonhood perspective when it is enacted alone..other than owner-occupiedpremiseswith not morethan two rentalunits. 34:957 leasehold is personalis also at workin the recentcommon law development.is a more directinstanceof the personhoodperspectiveapplied to residential tenancies. except upon establishment of one of the followinggroundsas good cause. ANN.153.. See. 126.such as waste. Block v.'26 This kind of statuteworksa profoundchange in propertylaw.B. N.may be removed by the county districtcourt or the Superior Court fromany house.g.and that is the sanctity of the home.S. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .C. .J.". arguingthat the parties bargain on the assumption that habitable premises will be supplied. Such a statutesupposes that the tenant has put rootsinto the place (which explains the one-yearwaiting period).g. . Viewing the leasehold as personal would tend to inth"eir courtsand legislatures to grantto all tenantsentitlements fluence inhome-a perpetual and tendedto make an apartmenta comfortable non-waivableguaranteeof habitability. with thisare (1) reasonable partieswould not assume habitable premiseswill be supplied if the common law rule was still in effect. See. It also incorporatesthe normativejudgmentthat tenantsshould be allowed to become attached to places and that the legal systemshould encourage them to do so. 1981): "No lessee or tenant . e. protectpersonhood.101 on Sat. The connectionwithpersonhood is the need forfood and shelter. Consider a hypothetical statute (ofa kindoften proposedby tenants'rights advoc-ates) providingthat a tenancycannot be terminated except forspecifiedreasons. . e.even where wealth to tenantswho are wealthierthan the resultis to redistribute landlords. Restricting the groundsforevictionis necessaryto implementthe statute.] leased forresidentialpurposes. cert. . where it is proposed in conjunction with rentcontrol it may simplybe a safeguarddesigned to assure the success of the redistributive scheme. This content downloaded from 5. 2695. at least in form. H. 256 U. Javins v. 125. 1977 (not enacted): "[N]o action or proceeding to recover possessionof a dwellingunit may be maintained against any tenant who has resided in said dwellingunit fora continuousperiod of one year or more immediatelypriorto the announcement of said action or proceedingexcept upon one of the followinggrounds.1 (West Supp.994 STANFORD LAWREVIEW [Vol.2d 1071 (D.13. Or. 428 F.. afterthe tenant has been there for a year.. . .
Whetherimposingsuch warrantiescould actually improve the quality of low-income housinghas been much doubted. 1016 (1969). Habib. as impermissibly if motivated retaliatory by tenantactivities.101. Second. Some of the importantasof his model are: landlordsare perfectly sumptions competitive.J.101 on Sat. CAL. 729 (1976).e. See Hirsch. REV.so long as it is not the wrongreason-may be seen as a way stationalong the path towardmakingthe landlord's reversion condiand the leasehold permanent (though tional. because it is fungible.although the argument is less direct. Rather. Ackerman does not show that the costsof habitabilitystandards are in fact borne by landlords.13. 393 U.See. such as eviction. Cir. that in today'ssocietya tenantmakes an apartmenther home in the sense of needed forpersonhood.Hirsch & Margolis.J. ineffectual.AnEmpincalObservation EfectsofHabitabdqzy ontheAckerman-Komesar Debate. which depended on private enforcement. 130.denied. TheImpled Warranty ofHabitabi/ty in 28 STAN.not collusive or oligopolistic. ? 2A:18-61. 1093 (1971). landlords make sufficient profitto absorb all costs of maintaining apartments up to code standardsand stillstay in the landlord business (or. See Edwards v.'30 Ackermansuggeststhat decent housing should be127.the rationale was that to permitsuch evictionswould renderthe housing codes.. that the old rule.Regression Analysis ofthe Laws Upon Rent. 1098 (1975). First. The autonomyand individualityof the landlord is more clearly implicated when the landlord is not simplya commercialinvestor. Housing Subsidies andIncome Redistribution Polit. L.because it is personal.2d 687 (D. Some jurisdictionshave enacted legislation that defines certain landlord conduct.153. Ackerman. 129. Practice. then the extraordinary developmentof the doctrine of retaliatory which a landlord may evict forany reason or no eviction. The Great GreenHope. he constructs a model to show that landlords would bear the expense of bringingapartmentsup to code standards under strictcode enforcement(and therefore also under the imposition of warrantiesof habitability)if his model's assumptionsheld true.1 (West Supp. If the prevailingpatternof leaseholds in a giventimeand place is that both landlord and tenantoccupy the land at the same time. CODE ? 1942.then the need for sanctity of the home would not favor the tenant. STAT. 128. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . cert. 1982). 1981) (exemption to tenant's tenure for landlords who reside on premisesand maintain only one or two rental units). Of HousingCodes. The attemptto assure poor tenantsof decent housing by imposof habitability129 ing implied warranties may -also be understoodin of the light personhoodperspective. the government This content downloaded from 5. L.63 CALIF.C. Note. defeasible). CIV. The doctrinebegan with the notion that the landlord would not be able to end a month-to-month tenancyifher motivationforevictionwas to retaliateagainst the tenant for complainingof housingcode violationson the premises.or cuttingoffthe heat.under a sanctuary whichthe landlord could evict a tenantwithoutcause at the expiration of the tenancy-a rule that mighthave been related to the auof the landlord-is of lesserimportanceor tonomyand individuality less clearlyimplicatedin the typicalcase today. 1968). 397 F. URLTA ? 5. REV.g.S.increasingthe rent.to the extenttheycannot. In an article that defendsimposinghabitabilityobligations on landlords.5 (West Supp.May 1982] PROPERTYAND PERSONHOOD 995 These judgments are based on two assumptions. Cf N. -under reason. ANN. 80 YALE L.127Once such a statute is viewed as an instanceof the personhoodperspectiveat work.Regulating Slurn HousingMarkets On Behalof thePoor.
"Each person must be prepared to answer the question of whenanyof his powersis challenged by anyone legitimacy disadvantaged by theirexercise. Id at 15-19. The fourth amendment homes and cars. when the housing the middle class moves in. Instead.. Those who observe "gentrification"in areas subject to code enforcement (like Washington..the prejudices supportingtheir oppressionmust continue unabated.153. all interchangeablelocal low-income housing is broughtup to standard at once so that people fleeingfroman unreconstructed ghettowill not bid up the prices in a neighboringreconstructed ghetto. because "in a societyin which wealth is unjustlydistributedit is fair to impose a requirementof decencyupon thosein the relatively privilegedclasses who engage in long-lasting with the impoverished. it appears to be closer to the argumentthat private law should cease allowing some people's fungibleproperty rightsto deprive other people of importantopportunitiesfor personhood. Id atl 173. This content downloaded from 5. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .C. 34:957 come a rightbased upon the tenant's "dignityas a person.101 on Sat. 133 The argumentwould justifycharginghabitabilitycosts to landlords whenever landlords'fungible property rightsare prohibiting tenants from or maintainingthe kind of personal relationshipin establishing the home that our cultureconsidersthe basis of individuality. The last one is the most ironic: In order for a code enforcementscheme to benefitthose who suffer fromracial or class oppression.13. 3.) argue that this is not the case.D. See B."Id at 4-5 (footnoteomitted). Preventing evictionand imposingwarrantiesof habitabilityprotect possessionof the home and the quality of physical comfortit will enterthe marketto make up the deficitin supply). but it is not simply a conventional argument for wealth redistribution. and that iron-cladrace or class prejudicewill keep outsidersfrommovinginto the ghettoeven ifghettohousingsubstantially improvesin quality (i. It is difficult to suppose that all of these assumptions would hold true for any given community. 132. While Ackermandid not elaborate this argument.996 STANFORD LAWREVIEW [Vol. 131. Id at 1171. improves. Affirmative action to reduce or end exploitation is required of the liberal statesman."'132 relationships This may be a species of welfarerightsor "just wants" argument based on personhood. the demand curve won't shift so as to enable a rentincrease).consideringresidentialtenancies as personal propertyhelps complete the moral underpinningthat he considered tentative and sketchy. Id at 249-64. ACKERMAN. Ackerman'stentativeargumentthat the law should enforcelandlords' moral obligation to respecttenants'dignityis consonant with his later elaboration of the moralityrequired of the citizensand lawmakersin the liberal state. the demand will not increaserelativeto supply so as to enable a rent increase). "131 He argues further that it is fairto charge some of the costs to landlords ratherthan to tax societyas a whole. SOCIAL JUSTICE IN THE LIBERAL STATE (1980).e.e. 133. Legitimacy depends upon treatingpeople with equal respect or moral equality.the marginal ghetto dwelleris completelyindifferent to betterhousing and will not pay a penny more forit (i.
at 7.135 The majoritybased its opinion on a firmdistinctionbetween the home and all other places wherecitizensor theireffects may be found. 445 U.the threedissenters in Payton argued that "the Fourth Amendmentis concerned with protecting people.S. The Supreme Court recentlyheld.id at 17 (Blackmun. in Pa.101 on Sat. So in a general way." 433 U. 573. 573.S.J.Anotheraspect of the sanctityof the home. the sanctityof the home also has much to do withthe path the Supreme Court has taken in interpreting the fourth amendment's protection against unreasonablesearches and seizuresand its warrantrequirement.153. 116 U." 445 U..S. 313 (1972)). U. 615 (1980) (White. dissenting). United States Dist. Id at 582 n.25. at 585. This content downloaded from 5. United States. Id at 16 (Brennan. The Court endorsed the statementof thedissenters below that "the purposeof the FourthAmendmentis to guard against arbitrary governmental invasionsof the home.J.. 616. 389 U. and private communicationsimplicate interests offices." 445 U. at 582. 604-05 (1980) (White.S. 7 (1977). 137.May 1982] PROPERTY AND PERSONHOOD 997 affords. 433 U. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . 1.13.134In declaring felonyarrestswith probable cause to be unconstitutional ifcarriedout in the suspect'shome. 423 U.is privacy-home is a place where intimate thingsare kept from prying are carriedon away from eyesand intimaterelationships pryingears.S. recognizing "a distinction betweensearchesand seizuresthat take place on a man's property-his home or office-and those carried out elsewhere.that while warrantless in arrests public are constitutional. 347. New York.'" 445 U. The majorityopinion said that the governmentwas wrong in arguing that "only homes. Both the concurringand dissentingopinions agreed with this view. 591-98. the Court quoted this phrase fromKatz v. In United States v.'" Id at 585 (quoting United States v.S.S.S. Payton v. could not be opened and searched in official custodywithouta warrant. 136. dissenting). New York. in other circumstances the Court is quite scornfulof such a dichotomy. Similarly. as mentioned earlier. 474 (1971). 630 (1886): "[T]he principlesreflected in the Amendment . which lie at the core of the Fourth Amendment.S. The challenged New York statute permitting the practice had been in effectfor nearly 100 years and was in fact thoughtto be the common law rule. seea/soUnited States v. the Court rejecteda well establishedpractice. In Chadwickthe court held that a locked footlocker. at 586 n.. 351 (1967). warrantless arrestsin the home are not. 297. 411 (1976).445 U. 135. seized on the probable cause groundsthat it contained contraband when its ownerswerearrested. 573.J.j 7. Chadwick. 582. New Hampshire. "[T]he 'physical entryof the home is the chiefevil against which the wordingof the Fourth Amendment is directed." 445 U.J.S. not "137 The theoreticaldifficulty places.S.. Court. Watson. And it quoted the classic passage from Boyd v.reminding us that the fourth amendment "protects people.S. 403 U.S.. 407 U. 589-90 (1980). The Payton majorityalso adopted the passage fromCoolidge v. dissenting). and no talismanicsignificance is given to the fact that an arrestoccurs in the home ratherthan elsewhere. New York. not places. 'apply to all invasionson the part of the government and its employees of the sanctityof a man's home and the privaciesof life. See Payton v. of explaining what protecting the core of personal autonomyfromthe government has to do with the sanctityof the home or of one's propertyhelps to explain the the Court has had in delineatingthe scope of the fourth difficulties 134. concurring).136Yet.y/on v.S.
Id at 625-28.g. in effect. See.S. 810 (1765)). Carrington. 311 (1921).). 387 U. as ruled in the Boyd Case. and breakingopen his desks.145 It also did not providea rationaleforthe seizureof "mere evidence. Carrzngton.998 STANFORD LAWREVIEW [Vol. 101 S. REV.C.13.the government seizes themas agent of the trueowner. In Warden. a seizure. 34:95 7 amendment.Amsterdam. J.95 Eng. .S. 309. Amendment.supra. to seize the accused's property otherwise" 'would be. United rated in Boyd States. REV. hardly bear an inspection . 294 (1967). 349 (1974). of the highestorder are at stake. to compel the defendantto become a witnessagainst himself. 298." 138. Silverman v.S.A. 2841. the property argumentis defeased because the goods do not belong to the holder. Robbins v. .the Court reasoned that an individual'smost personal thoughtsas manifestedin private papers deservedstringent Intrusionsare not to be toleratedunprotections. . 116U." Papersare the owner'sgoods and chattels. . and searchingand examin141 Lord Camden had said: ing his papers. e.. . 505 (1961). partictheory ularlyin the early eavesdroppingcases where the legalityof the intrusion mightdepend upon the technicalities of state trespasslaw. 138 was thoughtof in termsof The fourthamendmenthistorically protecting property. 343 (1979).'40 Boyd quoted less state interests fromthe opinion of Lord Camden in Entck v. This content downloaded from 5. 143.Se/f-Incrzmnation and PnvatePapersin theBurger Court." 387 U. See note 143 supra. at 302. concurring.. L. Id. 27 U. Ct. it had "derived fromBoyd v. Rep. 2847 (1981) (Powell. aggravation trespass This property of the fourth theory amendmentrequired a defeasing argumentto justifyany seizures. 139. (quoting Entick v. .. the Court noted that in Gouled v. extensively an action in trespassfor"enteringthe plaintiffsdwelling-house. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . 807. at 627-28. the propositionthat warrants'may be resortedto only when a primaryrightto such search and seizure may be found in the interestwhich the public or the complainant may have in the propertyto be seized. Id at 626. 140. .The Dem'se of Boyd. See Warden v. United States. United States. 616 (1886).143 Withrespect to possession ofcontrabandor fruits or instrumentalities of crime. 144. .see Gerstein. Hayden. See. California. 145. In the case of stolen goods.153. enduring that theywill and carried moved awaythesecret nature ofthosegoodswillbe an of the . yet where private papers are re- 142.g. 365 U. etc.142 ..S. The Lockean formof this rationale is elabov. 255 U.boxes. or when a valid exercise of the police power renderspossessionof the propertyby the accused unlawful and provides that it may be taken"'.144 The property had awkward resultsin the case law.'39In Boyd.101 on Sat. on theFourth Pespectwves 58 MINN. United States.the property argumentis defeased because it is illegal to own the objects in question.S. On the fifth amendment aspect of Boyd. 141.L. L. . e. theyare his dearest and are so farfrom property.
The intrusion was a "search" forfourthamendmentpurposes.S. 387 U. 148.the expectationmustbe one that societyis prepared to recognizeas reasonable. JusticeHarlan's concurrencein Katz152 made clear that the test forwhethersomeone has a legitimateexpectation of privacy in a given settinghas two prongs.because. second. 149. 151. United States'47 decided that privacy. not property. not places. Se also United States v. 147.S. even thoughtherewas no trespassagainst Mr. 435 (1976).S. v. at 351. United States.S. 294 (1967). 389 U.both of which are positivist. Id at 304."'51 Mr. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .101 on Sat. at 301.S. this was one of the privaciesof lifethat deservedprotection. whereas sanctity in Pay/on the Court would again emphasize the firsthalf of that phrase. 387 U. 389 U. 152. Katz could not constitutionally be spied upon in a bugged telephone booth (absent a warrant)to obtain evidence against him. Id at 360. 153 This positivism quicklygot the Court intodifficulty.13. Miller. Katz.ifthe government announced that the police may search a citizen's bedroom with impunity. For example.well-informedcitizenscould no longer reasonably expect privacy in their bedrooms. &S note 136 supra.in Haydenit took up the second: "We have recognized that the principal object of the Fourth Amendmentis the protectionof privacy rather than property. First. As it was to do later in the Payioncase. he had a legitimate expectationof privacy (in his conversation) when he entered the booth. 150. 153.153.148 the CourtquotedBoyd's that the fourth statement amendmentwas intended to protect"the of a man's home and the privaciesof life. In Warden the Court interred the "mere evidence" rule. 425 U. Hayden. Dissatisfied the ered anomalous resultsof a musty old doctrine. at 361. is the philosophicalbedrockof the fourth amendment.S. Katz v. United Statesthe Court made its famousannouncement that "the Fourth Amendmentprotectspeople. 347 (1967).the Court in Warden v. Hayden 146 and Katz v. 389 U."a person [must] have exhibited an actual (subjective) expectation of privacy"and."'149 But. This content downloaded from 5."'50 And inKatz v.May 1982] PROPERTYAND PERSONHOOD 999 because of the absence of a justification defeasingthe holder's propin the evidentiary erty rights withwhat it considobject. The Court now recognizesthat a "normativeinquiry" is 146. Even outside the sanctityof the home. and have increasingly discarded fictionaland procedural barriers rested on propertyconcepts.
413 U. 42 (1970). and because inventorysearches of impounded vehicles had been made standard operatingprocedureby certainpolice departments. United States.g. and the "automobile exception" to the warrantrequirement was impliedlylimitedto instances wheremobility was a worry. Cady v.S.S. And the Courthas indicatedthatthe personhoodperspective on property (the of the home) sometimesprovides its moral background by sanctity the way it draws the line at warrantless arrestsin the home. 433 (1971). 735.S. Dombrowski. e. by applying theKatz "expectationof privacy"testto the situationwherecars are impounded for reasons not connected with criminal investigation. while warrantless searches are not-why one's goods should be more protected than one's body-is an irony of fourth amendmentlaw upon which the personhood perspectivedoes not shed any particular light. Coolidge v. Maryland.regardless of what the Court says? When automobilesearches first became common.regardless mightsay. The Court has also found a diminishedexpectationof privacyin cars because theyare licensed and subject to many regulations. 428 U. It has thusbeen able to duck the question of exactlyhow that normativeinquiry would proceed. 159.S. See. 740 n.S. Maroney. But some inchoate feelingthat cars are indeed personal may have influencedthe This content downloaded from 5.101 on Sat..'58 In doing so. e."Id at 590.'56But the Court broadened thisexception by holding that cars impounded by police may be searched withouta warrantif theycould have been searched withouta warrant while theywere stillon the road. Warrantless automobile searcheson probable cause were permittedonly where the vehicle's mobilitythreatened that it mightelude the officers' grasp.See.S. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .159 154. 403 U. Chambers v. Watson.5 (1979).'54 So farthe Court has not acknowledgedthat ifa "normative inquiry"is relevantto such a case. 442 U. most people undoubtedly use theirprivate automobiles as repositories of personal effects. See text accompanying notes 159-60 rngfra.1000 STANFORD LAWREVIEW [Vol. Lewis. should cars be private.S. 158. 156. 417 U.153.13. Opperman. 132 (1925). In Cardwell v. regardlessof what the Court says. Cady v. See Smith v.'55 If homes should be private. 155. 411 (1976). See United States v. In spite of the Court's statement. the Court treated cars as presumptively private.g. the of what the government courtimplies. the Court in essence declared that cars are generallynot consideredprivate.. Carroll v. 439 (1973). the Court stated: "One has a lesser expectationof privacyin a motorvehicle because its functionis transportation and it seldom servesas one's residenceor as the repository of personal effects. the Court entirely eliminatedfourth amendmentprotections withregard to a large categoryof searches by findingthat there was little expectationof privacyin cars.S. Dombrowski. it is relevantto all cases. Why warrantlessarrestsin public should be prima facie valid (on probable cause).S. 538.413 U. 34:95 7 needed in such a case. See notes 134-35 and textaccompanying notes 134-36 supra. 267 U. Homes should be private. South Dakota v. 157.'5' Furthermore. 399 U. 364 (1976). (1974). New Hampshire. 443 (1973). 423 U.
28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . 705 (1977) (statemay not constitutionally forceone to display license plate motto as condition upon using one's car).13.and are the recipients of tenderlovingcare. First. and cars formthe on privatethoughts backdropforcarrying or intimaterelationships. It is too simplistic forthe Court to say thatthe fourth amendment excludesproperty considerations and focusesexclusivelyon privacy. This theory has the advantage of being somewhatcongruent with the historical approach to the fourth amendment. just as homes do. and ifour societyis now one in which many people's homes are not that sortof enclave (because of overcrowding. and privacyare intimately Property intertwined. See text accompanying notes 139-44 supra.The errorriskedby doing so (costs to the government) seems less importantthan the risk of moral error againstpersonhoodinherent in some of the presentrules. Other cars are simplypart of a company's sales fleet. 430 U. This content downloaded from 5.papers. The fourth amendmentis wordednot in terms ofprivacybut ratherin termsof protecting people's "persons"and people's relationships withcertainaspects of theirexternalenvironment (their"houses.101 on Sat. Second.May 1982] PROPERTY AND PERSONHOOD 1001 The personhoodperspective can give us two avenues of approach in decidingthe normative questionwhethercars ought to be a strong enoughsanctuaryagainst government intrusion that theyshould not be penetratedwithouta warrant.then it is as much an intrusion to invade a car as it is an intrusion to invade a home. Accordingly.'60It is also consistentwithan approach that treatsthe Bill of Rights as a list of enuoutcomein Wooley v.if in our societycars are in the generalcase likelyto be personal. 160. then a liberalgovernment that mustrespectpersonhoodmay be required to make it possible forpeople to treattheircars as such enclaves.153.and effects"). insofar as property is about the relationship between people and things.S.It has a greatdeal to do withproperty. Are cars likely to be personal? Some cars expressone's personal taste and style. The argument may also hold fora societyin which most people do have homes but spend a great deal of time in theircars. Cars are the repository of personal effects. certaininterests protectedby the fourth amendment. if privateenclaves are needed forpersonhoodto develop and flourish.at least to the extent of narrowingexceptions to the fourthamendment'swarrantrequirement. Maynard. cars should be treatedas personal. But the reverencefor cars in the popular culturemightsuggesttheyare towardthe personalend of the continuum. If throughsocial analysis and normative inquiryone can delineatecategoriesof personalpropthenthisinquiryalso identifies erty. forexample).
For example. Ida at 1227. In Rakas v. this perspective of property for per- merated interests indicating that government must respect sonhoodfailsto give us a completetheoryof the fourth amendment. CAL.13. 80 HARV. .S. (Even casual visitors have a protectedinterest in their "persons"-physical body-because the fourthamendment protects "persons. This provokedthe dissenters to invokethe ironyofKatz: "The court today holds that the FourthAmendmentprotectsproperty. B. at 156. He rationalizesfourincompletestrandsof case law in termsofjudicial intuitionsrelatingprimarilyto thisinherent utilitarianstructure. 128 (1978).the court has granted standingto (recognizeda protectedinterest in) those who essentiallytreat the place as home. supranote 133. papers and effects.S.g. and.") See Ybarra v.101 on Sat. Hinderingthe Court's developmentof a normativeinquiry forthe fourthamendmenthas been distasteforthe exclusionaryrule. thatamendmentgrantssecurity to one's "person.162 vant to the relationships B. papers and effects.e. 163. . 439 U. DWORKIN. This is not inconsistent withthe property-for-personhood perspective. But the Court has not yet undertakena systematic moral inquiry that would classifyprotectedinterests forthe fourth amendment. R. have some continuingrelationshipwith it. 53 S. L. This approach restson the premise that a liberal governmentmust treat people withequal concernand respectand must treat them equally as persons. &S. Illinois. The court has found this approach appealing in some fields." as well since.first. some cases. L. but seems too narrow. the perspectiveof as one's house. if that relationshipis deemed legitimateby society. 34:957 personhood. 162. Illinois.The "physical invasion" testrelates to high demoralization costs and low settlement costs.. Utility and Fairness. not people. 1143 (1980). The personhood perspective cannot generatea comprehensive theoryof propertyrightsvis-a-vis it can only add another moral inquiry that helps the government. 85 (1979). Aspects Problem oftheTaktng The whole question of governmentregulation and "taking" of private propertyis the most difficult.1002 STANFORD LAWREVIEW [Vol. .See. See 439 U.Super Death. e. An issue similar to the status of "mere passengers" in a car is the fourthamendment "standing" of household visitors. i.. Radin.S. REV. The important issue forthe personhoodperspectiveis not the state of the legal title. some justices seize upon whateverrationale is handy to validate searches. second. The resultin Rakas is not inconsistent withthe personhoodperspective. its eighth amendment jurisprudence restson equal respectforhuman dignity." 439 U. But this is a fieldin which a unifiedtheoryhas clarify not been forthcoming163-even the Supreme Court admits that it has 161. The "diminution of value" test boils This content downloaded from 5.153. 1165 (1967).S.161 Of course. property forpersonhooddoes not exhaustthe moral perspectives relebetween personsand things. at 141. Because of theirdiscomfort with the rule. Michelman proposes a sophisti'LjustCompensation" cated utilitariancalculus designed to explain many of the anomalies of the case law.As to items found in the apartment. eg. CruelAnishment and Respectfor PerDue Processfor sons. REV. 444 U. which sometimesallows criminalsto go free because of technicalviolations. a pluralityheld that people riding in a car do not have standing under the fourth amendmentto challenge a search unless theyown the car or the item whose seizure is challenged. Aoperty.Comments on theEthical Foundations of Law. yet most promisingarea for the applying personhood dichotomy.but the state of the person'srelationshipwith the object. ACKERMAN. TAKING RIGHTS SERIOUSLY (1977). &S Michelman. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . ." as well as "houses.
quite simply. my car.id.167 If thiswere so. to discreteunitsor "bundles property of rights"that ordinarily come packaged togetherin our society. the personhood theory helps us understandthe natureof the rightdictating that discreteunits ought to be protected. B. 167. .. at 123-24.153.S. 104 (1978). thentheremightbe a special demoralizationabout losing one of unitsthatpresumably thesediscrete depriveda personof more utility than losing a larger dollar value fromsome other lesseningof net worththat leftthe numberof discreteunits relativelyintact. In the positivistinterpretation of why we shouldfocusupon discrete unitsratherthan only upon the size of the wealth loss.rather traditional than thinking habituallyabout theirentirenet worth. 165." Id. Object-loss versus Ackermanargues that stronger claims attach to items that are in ordinarylanguage-that is. and the "harm and benefit"testis aimed at identifying "anti-nuisance" measures which merelyrectify a pre-existing unilateral redistribution and hence do not properlyraise a compensation issue. PRIVATEPROPERTYAND THE CONSTITUTION 113-67 (1977). at 1233.while seizure of a one-acre ing regulations plot ofunused gravelpatch will be compensated. supra note 163. Transp.id at 1235. [T]his court. at 1234. 164. it would have to be true that people thinkof theirassets in discreteunits. Similarly. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .13. The divergent resultsAckerman seeks to explain might also be defendedon moral groundsifthose groundsestablisha rightto keep discrete units intact. 165 He claims he can thusexplain the resultswhich have mystified economists: For example. wrote: "The question of what constitutes a 'taking' forpurposes of the FifthAmendmenthas proved to be a problem of considerable difficulty. and that its decisionsare largelyad hoc. An argumentthat discreteunits are more importantthan total down to an approximationof the "physical invasion" test. ACKERMAN.in the normativeinterpetation. forthe majority. In Penn Cent. at 1239. 166. See id at 129-34. The "balancing" of the claimant's losses with society'sgains relates to demoralization costs. my piano. v.thoughperhaps not much monetaryloss can be measured?166 In order for Ackerman's ordinarylanguage explanation to be welfare-maximizing.why is it that six-figure losses imposed by zonwill go uncompensated. 438 U. has been unable to develop any 'set formula'fordetermining when 'justice and fairness' require that economic injuriescaused by public action be compensated by the govratherthan remainingdisproportionately ernment. .or bundlesof rights(e. Co. 1. . This content downloaded from 5.May 1982] PROPERTY AND PERSONHOOD 1003 no coherentexplanation that will cover all of its cases. Such a way of thinking is postulated in Michelman. my sofa).g. JusticeBrennan. the personhoodtheorymay explain the postulated special demoralization. concentratedon a few persons.101 on Sat. Id. City of New York.164 wealth-loss.
The cases economistsfind mysterious are mysterious just because economists generally treatproperty as fungible. But theargument above suggests that anotherelementin the explanation is courts' understanding of the necessityof object relationsin ordinarylife.there must be some continuityin relating to "things. In order to lead a normal life. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions ." Some things must remain if anythingis to move. This content downloaded from 5. that is more disorienting than to discoverthat her house has decreased in marketvalue by 5%. 34:957 assets takes the followingform." the loss of which causes more disruptionand disorientation than does a simple in decrease aggregatewealth. ifsomeone returns home to findher sofa has disappeared. to the way our perceptionsepacorresponding rates the world into distinct "things. For example.her whitesofa were instantly replaced by a blue one of equal marketvalue. If. by magic.one musthave an ongoingrelationshipwith the externalenvironment. If the white sofa were totally fungible. it would cause no loss in net worth but would still cause some disruptionin her life.13. This argumentassumes that all discreteunits one owns and perceivesas part of her continuingenvironment are to some degree personal. A person cannot be fullya person withouta sense of continuityof self over time. some points of reference stationary must be or constant thoughtand action is not possible." One's expectationscrystallizearound certain "things. then magically replacing it with a blue one would cause no disruption.Mere ease of categorizationmay complete the explanation: Grantingreliefforobject-losspermitsline-drawing. But this alone does not fullyexplain why courts are likely to consider object-lossmore importantthan wealth-loss. Courts can perceivewhetheror not an object has been taken. One the ongoingrelationship perceives to the environment as a set of individual relationships.1004 STANFORD LAWREVIEW [Vol. In fact.but cannot in the same way discernwhether"too much" wealth has been taken.153. neitherwould replacingit with money. and thosecases treatit as personal. To maintain that over time and to exerciseone's libertyor autonsense of continuity omy. Ackerman'sordinarylanguage analysismay help account forthe courts' tendencyto protect discreteobjects more than general net worth: The ordinarymeaning of propertyis tied up with ordinary patternsof object perception.101 on Sat. consisting of both "things" and other people. Object-lossis more important than wealth-loss because object-lossis speciallyrelatedto personhoodin a way that wealth-loss is not.
the moral inquiryforwhetherfungibleproperty could be taken would be the same as the moral inquiryforwhetherit is fairto impose a tax on this particularperson. 172. 170. one mightexpect to findan implied limitationon the eminent domain power.101 on Sat. 171.13. This suggeststhat if the personhood perspectiveis expressed in law. versus personal. fungible But the theoryof personal property suggeststhat not all objectloss is equally important.170 Hence. cease to be "myself' if it were taken.or perhapsthat the object is not "too" personal comparedwith the importanceto the government of acquiring that particularobject forsocial purposes. See text accompanying notes 31-33 supra. Evolving Standards fortheCruel and Unusual Punishments Clause. On the otherhand.169 If my kidneymay be called it is not property my property. 126 U.'72 That is. They mightjust as well be treatedby whatevergeneral moral rules govern wealth-lossat the hands of the government. in the contextof a legal system. 169. ifsome object wereso bound up withme that I would hypothetically. A governmentshould not take such an object from me unless my hypothetical withthe object were viewed as fetishism relationship or slaveryto material thingsratherthan constructive of personhood.'71 interests For instance. a fewobjects may be so close to the personal end ofthecontinuumthatno compensationcould be "just.see Radin. Such an implied limitationmight well be couched in terms of substantive due This content downloaded from 5. Some objects may approach the fungible end of the continuumso that thejustification forprotecting them as speciallyrelated to personsdisappears. In genmentcould take some fungible eral. That prima facie case mightbe rebuttedif the government could show that the object is not personal. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . See note 163 supra.153.See text accompanying notes 44-45 supra.theremightbe a prima faciecase against takingit. Objrct-loss. For an attempt to elaborate such a theoryof review based on risk of error. PA.If the moral rules governingwealth-loss to Michelman's utilitariansuggestion-governmentmay correspond wealthis necessary to generatehigherwelfarein which takewhatever the individual can confidently expect to share168-then the governitemswithoutcompensation. subject to condemnationforthe general public welfare. REV. then a government that must respectpersonsought not to take it. TheJunsprudence ofDeath." That is.one mightexpectto findthe characteristic use of standardsof reviewand burdensof proofdesignedto shiftriskof erroraway fromprotected in personalproperty.May 1982] PROPERTYAND PERSONHOOD 1005 2. one might expect to find that a special 168.if therewere reason to that some suspect object were close to the personalend of the continuum. 989 (1978). L.
a.181 Colo. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . some fragmentary limitation evidence suggests ifconnectedwithgroup autonomyor assothatgroup property rights. 411.173 Perhaps the peris not strong sonhoodperspective enough to outweighotherconcerns.J'd. 34:957 class of property like a familyhome is protectedagainst the government by a "propertyrule" and not just a "liability rule. Pillar of Fire v.Pennock & J.Property Rights andtheConstitution.For example. See Sager. eminent domain may be employed forany scheme a governingbody that has not utterlytaken leave of its corporate senses mightchoose to undertake. one state court held that a condemnorcould not take a parcel sacred to a religous sect unlessit could show no adequate alternative. The legislativesettlement of the Indians' This content downloaded from 5. See.101 on Sat. perhaps the personhoodperspectiveis so deeply on the problem. See JointTribal Council of the Passamaquoddy Tribe v.528 F." Or one might expect to find that a special class of propertyis protected shows a "compelling state inagainst takingunless the government terest"and that takingit is the "least intrusive alternative.we expect that the embeddedthat. the fact that the personhood has not surfacedto give some explicitprotectionto famperspective ilyhomesfrom government taking. Chapman eds. forexample.1006 STANFORD LAWREVIEW [Vol. seems to be anomalous.2d 1250 (1973).174 The most interestingarea in this connectionmay be the evolvingstance of federal and state governments toward Native American group claims to theirancestralterritory. and a subjective too much." that requirementhas passed beyond the pale of seriousjudicial enforcement.We condemning authority property will not take homemay simplytake forgrantedthatthe government steads when parkinglots will do. perhapswe are unwilling homes are personalbecause many houses are held only forinvestment.175 process. City of East Cleveland. 509 P. inquiryintoeach case slowsdown government On the otherhand. 1980): While exercisesof the power of eminent domain nominally depend fortheirlegitimacy upon the existenceof a "public purpose. 388 F. Still.In practice. For examlower administrative to presumethat all single-family ple. 1975). 1975). ciation. 174. Supp. to zone foroccupancy by nuclear familiesonly.are givenenhanced protection. where a pluralityfound a substantivedue process right to live in one's home with one's extended hence a substantivedue process limitationon the power of local government family.S.153.13. need to appear even-handed and the especially the government's costs associated with simplerrules. Moore v. 173. Althoughthe personhoodperspectivehas not yielded a general on eminentdomain.withoutfocusing will take fungible wherepossible. Me. in NOMOS XXII. PROPERTY 376. Denver Urban Renewal Authority. 378 (J." This general limitationhas not developed. 431 U.such as stricter scrutiny. 649 (D. Morton. 494 (1977).2d 370 (1st Cir. 175.
su. Whethercompensationand transfer of titleto the condemnorwould be the appropriate remedy in this typeof action is currently in controversy. For example. 177 condemnation.S. inJustv.101 on Sat. 3d 266. 201 N. Inverse The earlierdiscussionsuggestedthat uncompensated"mere" regulation. "mere diminution" in value yields no rightto relief).S. seems irrational. 598 P. regulationwould effectuate a taking. See Michelman.pra note 165. 450 U. 447 U.178 the Wisconsin court held that waterfront land was not taken by the county wetlands act whichprohibited the filling and subsequentdevelopmentof the land.2d 25 (1979). 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . thenthe offending able to object-loss. at 1197-201. 255 (1980) (In California in order fora zoning ordinance to be considered a compensable takingit must involvedeprivationof "substantiallyall reasonable use" of the property.W. City of Tiburon. Se.153.447 U. 2d 7. It seems likely that vicissitudes courtswould protectone's home to a far greaterextent than one's commercial in purelymonetary plans.Jd. 348 U. 24 Cal. at 1233 (1967). 272 (1955). 3. 178. in which case just compensationwill be due. The court concluded that a superveninglegislativeact to requirean ownerto keep the land in its natural state was not a taking.. Michelman. terms. 180.unlessa federaltreatypromisesthat it will not. 179. it is well establishedthat the federalgovernment may "take" Indian land withouteven monetary compensation.S. Agins v. v.is more easily sustained by courts than takingof discreteitems.even ifthe result. Tiburon.S. United States. at 142. "Inversecondemnation"refers to an action broughtby a property owner claiming that a government action not officially in eminentdomain has in fact "taken" her property. Marinette Count.even if more costly. 177.g. Se United States v. This inference helps explain the "mere" in some courts'reference to "mere diminutionof marketvalue.As Michelman and Ackermanboth point out. 56 Wis. 179 But it is possible to inferthat a court is more willing to let the legislature destroythe expectation of gain from fungible development rights than it would be to let the legislaturedestroythe personalityties someonehad investedin a home or land. Set Agins v. Co. B. 621 (1981). Sioux Nation of Indians. San Diego Gas & Elec. 255 (1980). the "diminution of value" test found in the case law is really used to test whether of an object was taken as to be assimilso greata proportion 176 If so. 371 (1980). supra note 163. In contrast.because it is seen as wealth-lossratherthan object-loss. Tee-Hit-Ton Indians v.S. a. ACKERMAN. 448 U.13. and compensation might be sought in "inverse The personhoodperspective may give us further insightinto the of the "diminutionof value" test.180 The courts'broad deferclaim that the statehad unfairly obtained some of theirancestral territory provided forextraordinary protectionagainst state eminentdomain once certain lands were reacquired for the Indians. Its application of the "harm/benefit" testis easily dismissedby thosewho reasonin terms of expectationand marketvalue. City of San Diego.pra note 163. su.May 1982] PROPERTY AND PERSONHOOD 1007 condemnation. e." This content downloaded from 5." considerednot compensable even though it may amount to huge losses of expected returnon investment. 176.2d 761 (1972).
308 (1968).. 407 U. The elaborationof the of the personhooddicotomyin propertyto theoriesof relationship justice based on personhoodis beyond the scope of this essay. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza. Lloyd Corp.as Ellickson & Tarlock make clear. Inc. Alabama.S. v. 424 U. 194-98 (1981). 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .1008 STANFORD LAWREVIEW [Vol. property. Rob*185 the Sup to ureme Court decided that the right toexclude ins. 182. it would be difficult to prove that courts' deferenceto land use regulationsstems fromperception of the affected as fungible. Alabama through Hudgensv. had effectively overruledAmalgamated Food Employees Union Local 590 v.although. in this fieldcan be presumedto know theirrisks-even in investors the way of a certain probabilityof "unexpected" changes in the law-and hence already to have monetized them. declared that Lloyd Corp. In addition to the presumption that theirproperty is fungible. 326 U. v. th free 181. 184.Actionsare not likelyto be broughtby those who have put down roots property into a priorpermitteduse. 551 (1972). 507 (1976). See Part V-C supra. NLRB.S. but a glance at some disputes involving non-propertyinterestsin personhood will help place the personhooddichotomyin a larger context. when new regulationsare imposed. 447 U. 407 U. Local bodies sometimes provide thatnonconforming uses must be "amortized" over a numberof years. 183. 391 U.181 C.S.g. 501 (1946). 551 (1972). it is important to realize that in a largerscheme that accords special recognition to core personhood in general. ELLICKSON & A. R. NLRB. local bodies usually exemptpre-existing uses.S. because. supra note 163. 507 (1976). While I have argued that personalproperty should be specially I do not argue that thereis no personhoodinterest recognized.153.. 308 (1968). Tanner.e.some personhoodinterests interests not embodied in propertywill take precedenceover claims to fungibleproperty. The line of cases fromMarsh v. 424 U.S. at 1238. See Michelman. even in fungible 182 Nevertheless. 185. Logan Valley Plaza.S.184 In a later case. Inc..The Supreme Court ultimatelydecided that the propertyowner wins over the speech claimant. Hudgens v. LAND-USE non-conforming CONTROLS: CASES AND MATERIALS 190. Unfortunately.a theory based upon personhoodmay be structured so that property forpersonhoodis merely a subcategory ofentitlements forpersonhood. 74 (1980). 34:957 ence to land-use regulationsthat cause large decreases in market value of land may also reflectthe fact that inverse condemnation actionsare almostalways broughtby thosewho hold land forinvestment.S.13. Pruneyard Shopping Center v. NLRB183 addressedthe problem of people who claimed freespeech rights on otherpeople's commercialprivateproperty. Hudgens v.101 on Sat. TARLOCK. 391 U. See. Tanner. This content downloaded from 5.S. Fungible versus Rights Interests Propert in Personhood Non-Property As suggested ofjust distribution earlier. Marsh v. this would not be applied to a home or other personal property.
It appears that to Marshall "privacy" invokesthe same complex of protectedvalues I associate with "personhood. Comment. Dissentingin Llo. U. because "the shopping center premisesare open to the public to the same extentas the commercialcenterof a normal town. eitherof of moral rightsbased on personhood188 the strength or. is likely to be tied to the personhoodof the speaker." v.S.because homeowners have a privacyclaim and commercialownersdo not. to translate the effects utilitarian of on individual and aggregate into terms.13. at 551. butef L.eg. Shopping center propertyis not likely to be bound up with the personhood of the shopping center owner. One might roughlyassume that "commercial" speech is not closelyenough related to personhood and "noncommercial"or "political" speech is.186 amendThe primaryargumenton behalf of recognizinga first mentrightin the speakerswas that the typesof commercialproperty that the ownersshould in questionwere quasi-public." 391 U.101 on Sat. At least in the moral welfareifspeech rights weighing. But. 159 (1974). likely are grantedor denied. L. especially if considered political.. freedomthat is given a preferred place in our hierarchyof values. 24 AM.yd Marshall explicitlybalanced "the freedomto speak.althoughhe reliesprimarily on the quasi-public propertyargument.J. privateproperty This content downloaded from 5. 188. TRIBE. This intuitionis nascent in Justice Marshall's opinions in the cases cited in note 183 supra. 90 YALE L. REV." state trespasslaw may not be interpreted "whollyto exclude those membersof the public" speaking "in a manner and fora purpose generallyconsonantwith the use to which the propertyis actually put. Id at 324.the balance would have to consider the speech-content. Tanner. at 319-20. a Corp.153. One might also consider the importance to personhood of speaking at a particular shopping centerratherthan some otherforum. For example. Private Abridgement of Speechand theState Constitutions. whetherthe speech is likelyto be closelyconbut only to determine nected to personhood. as a reason foroverridingrespondents'"claimed absolute rightby state law to prohibit any use of theirproperty by otherswithouttheirconsent. See. 165 (1980). while public speech. which is likelyto 186."Marshall implies that the speakers should prevail over commercial propertyowners but not homeowners. does provideaccess to privatecommerhold thatitsown constitution cial shoppingcentersforspeech claimants. at 1165-67 (1978). The situationinvitesbalancing. in Logan Valley.Large-scalecommercialproperty ownership. Althoughthe would-be speakershave no federalfirst it is not a takingfora state to mentrightto go on privateproperty.The resultof thisrough weighshould yield to others'personhood property rights ing is thatfungible claims.and therefore 187 treat speech claimants the way the governmentwould have But thereis a separate argumentto be made on behalf of the speech claimants. supra note 7.May 1982] PROPERTY AND PERSONHOOD 1009 is not a federally protectedproperty speech on commercialproperty amendright."407 U. 187. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . See Note.S. 580. [with] the freedomof a owner to controlhis property. ThePub/cForumfrom Marsh to Lloyd.
28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .1010 STANFORD LAWREVIEW [Vol. Donahue.it would not be characterizedas closelytied to personhood. Superior Court. 16 Cal.34:957 mustbe deemed not to contain rightswhollyto exclude be fungible. at 1167.. 193.J.101 on Sat. 189. 3d 392. that the interestin forming a corporation is less importantthan the interestin forminga political partyor religiousgroup. Thus. The Court remanded Bell so that the state court could consider whether Maryland's subsequently-enacted Public Accommodations Law would apply to void the trespass convictions." See also Agricultural Labor Relations Bd. 378 U. 226 (1964). PROPERTY 28. 104 (J."9 Is the property owner who seeks to exclude another person using fungiblepropertyrightsin a way that signifito develop and express cantlycurtailsthe other'sset of opportunities personhoodin our society? From this perspectiveone may decide.`92 The issue in Bell-which the Court was able to avoid decidingbecause intervening civil rights legislationobviated the issue193 was whether a restaurant owner could invokea state trespasslaw to exclude blacks who demanded service. The issue became moot because the Civil Rights Act of 1964. non-commercial speakers. The shoppingcenterdemonstration controversy presents only one of the largerproblemof elaboratingthe moral limitamanifestation tionson state trespasslaw. 183 (1976).2d 687. 58 N.cg.similarto the distinction evinced in theoriesof freedomof speech that rest on personal dignityor autonomy. e. 277 A. L. From the personhood perspective. Chapman eds. especiallythose that cannot speak effectively 189 elsewhere. that those who deliver basic welfare services to farm should be able to enter large farmsover the objections of workers corporategrowers. 128 Cal. The Future of the Concept of Property Predictedfrom itsPast. See. of 62 IOWA L. v. The general problem is to decide the enforceability of exclusion-"property"-rights against various in entry. A parallel theoryof freedomof association would hold Freedom. a content distinction becomes relevant.S. State v.. supra note 7. See Part IV-D supra.S. Shack. See. in NOMOS XXII.both the moral status of the shopping center property (roughlyfungible) and the moral status of the claimed speech interests(related to personhood?) are relevant.Pennock & J. If the speech interest were whollycommercial. 67-68 n. 297. A hard case formakingdistinctions on the basis of personhoodis Bell v. at 228. 192.'9' But the personhoodperspective givesbetterinsightinto some situationsthan others.153. 1 (1976). Tribe argues that thereis a problem with the "public function"analysis in that it makes first amendment rightsdepend on speech content. 372 (1971) (state trespasslaw cannot be enforcedby farmeragainst OEO workerseeking entryto aid migrant workers): "Title to real property cannot include dominionover the destinyof personsthe owner permits to come upon the premises. Commercial A Problem :n the Theory Speech. 378 U. This content downloaded from 5. forexample. 546 P. Baker. Consequentlytherewould be no compellingreason to preferthe would-be speaker over the shopping center owner. Rptr. Maryland.13. REV. 191.g. 190. TRIBE. 1980). The larger problem so decategoriesof claimed interests finedbears some relationship to one formof welfarerightsargument discussedearlier.2d 369.
group cohesion may be importantor places of public accommodation. ? 1447. concurring). which might be narrowed still further by other moral argumentsnot based solely on individual personhood. The possibility that relyingsolely on the personhood perspectivemay permit "discrimination" on the part of small proprietors may be more importantin the landlord-tenantcontext. J.101 on Sat. But as the communitariancritique of the traditional notion of person remindsus.194In other words.One reason tion whether is that we lack a convincing theoryof this kind of case is difficult group rights. lishmentwhere she may be catering to the prejudices of others to increase profits. 378 U.S. other moral arguments.C.a proprietorcould argue that she had herpersonhoodbound up withbeing able to exclude blacks. (2) (1976).13. at 245 (Douglas.C. at 246. Is it fair to ask someone who rents out the basement of her home to live in close with a person who represents proximity somethingpersonallyrepugnant to her? (Imagine a Jew whose parentsdied in the holocaust being asked to rentpart of her home to a member of the American Nazi Party.perhaps involving social obligationstoward historically oppressed groups. 194. In thiskindofcase. to be broughtforward case forthe personhoodperspective A difficult ariseswhen groups claiming to be necessaryto their members' self-constitution bring claims."Id. 28 U. The concurringopinions of Justices Goldberg and Douglas suggestthat the propertyowner's argumentshould win if but should lose if she runs a commercialestabshe is a homeowner. then no restaurant can afford to serveblacks unless it can make more profits servingblacks only than servingwhites only. or if a court or legislatureimposes this "agreement" on them. The dilemma disappears when all businesses agree to serve blacks. The corporationowning the restaurantrefusedservice not because of dislike for Negroes but because "'it' thought 'it' could make more money by running a segregated restaurant.) Perhaps some such feelingof the limitingcase justifiesthe exemption in Title VIII of the 1968 Civil Rights Act forsingle-family homes sold or rented by the owner and forsmall multiple dwellingsin which the owner resides. these opinions find a reason to claimed exclusion right is fungible rather believe the proprietor's The case is arguably a standoff than personal.. But if most white customerswould preferto dine without blacks. But clearly this limitationwould apply only to a narrow class of cases.would have on behalf of the black claimants. 195.1975a-d. personhoodis involvedforthe conflicting members of each group primarily in the claim of freedomof associaor not the group'sclaim involvesproperty. The dilemma here is that restaurantsas businesses would presumablyprefer to serveeveryonebecause that will maximize theirprofit. ? 3603(b)(1).May 1982] PROPERTYAND PERSONVHOOD 1011 From the perspectiveof personhood.153.S. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . ??1971. whilethe blacks could argue that theirpersonhoodis bound up with being served.C.S. 42 U.2000a-h (1976) prohibits discrimination in This content downloaded from 5.'95 fromthe perspectiveof personhoodif we imagine a small proprietor whose prejudice and whose personhood is inseparable from the is non-commercial business. At this point.S.42 U.
The lower court opinion took note of the fact that other Long Island communities This content downloaded from 5.Y.exclusive of household servants. 70 supra. PoliticalMarkets and Community Se/f-Deterrnmnation. 34:957 even necessaryto personhood." 416 U. adoption. had a much less plausible claim than did the 700 people of Belle Terre that a crucial claim of personhood forits people depended on upholding the ordinance.1012 STANFORD LAWREVIEW [Vol. 199. It is difficult to choose betweenthese two arguments. 431 U.'96 An example of this kind of case can be constructedby a somev.in the guise of freedomof association. TRIBE. if one imagines 700 single-family residences governedby a set of restrictive servitudes. the studentsargue thattheirleasehold is personal. who attended nearby S. Legitimacy. The owner-landlordand three tenants brought the action to invalidate the ordinance afterthe Village threatenedto enforceit against them. City of East Cleveland. Thus a government constitutive of herself that must respectpersonsshould not preventher fromchoosing to live this way. see L.S.the case could easily involve propertyforpersonhood on both sides.Then. One justice found thisrightto be a propertyright. L. 197. supranote 7. 200. But see text accompanying note 200 infra.N. Michelman. The Village's claim would have been more plausible had the residents'group values not represented the American cultural mainstream.200He mentionedfamilyvalues. or marriage.and since her choice is more clearlyselfconstitutive. Moore had a better case than the students in Belle Terre. the rightto live with her extended familywas importantto Mrs. The Village restricted land-use to single-family dwellings. or marriageshall be deemed to constitute a family.000. A number of persons together but not exceeding two (2) living and cooking togetheras a single housekeepingunit though not relatedby blood.since theyhad not yethad timeto put down rootsin the village. adoption. JudicialModels of Local Government Competing 53 IND. Boraas. Six studentsliving togetherin a rentedhouse challenged the regulation.At the same. 1 (1974).198 This dispute can be seen as involvingpersonhood. 198. on both sides.S.time.S. living and cooking as a singlehousekeepingunit.13. 187-99 (1977-1978). Moore as as an individual and memberof a group. at 2.J. The personhood insighthelps to explain the overlap of propertyrhetoricwith substantive due processrhetoric. 989-90. The six students. leased the house for 18 months. 494 (1977). See note 56 and text accompanying notes 27. 416 U.East Cleveland.and the townspeopleargue that their benefitunder the servitudeis personal. From the personhood perspective. JusticeDouglas may have decided forthe village because the students'personhoodinterest seemed weaker. hence a substantivedue process limitation on the power of local governmentto zone for occupancy by nuclear familiesonly.199In fact. 145. where a plurality found a substantivedue process rightto live in one's home with one's extended family.101 on Sat. at 975-80.. a town of 40.197 The 700 resiwhat freeanalysis of VillageofBelle Terre dents of the Village of Belle Terre zoned their town to be open essentially only to nuclear families. 985."Family" was definedto mean "[o]ne or more persons related by blood. Stony Brook. unless it can show a morallycompellingreason to overrideher choice. 196.U.Mrs. since it would be much more difficult forher to leave the communityin which she made her home to expressher lifestyle elsewhere. Part of the difficulty comes in trying to fathomwhy the court went the otherway in Moore v. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . For insightful thoughts of commentators who keep recurring to the puzzle posed by the case.153.
CONCLUSION Just as Warren and Brandeis argued long ago that there was a rightto privacythat had not yet been named.but it was not readilybelievable that the homestead was personal.since it now This content downloaded from 5.and implications.. because more clearlynecessaryto theirbeing able to constitute themselves as a group and hence as personswithinthat group. 476 F.153. 817 (2d Cir.and the other does not. Thus. TheRight to Privay. they should be treatedsimilarly.20'this article may be understoodto argue that there is a rightto personal propertythat should be recognized. 104 Wis.manifestations.101 on Sat. if the village residentshad represented a minority group or some group outside the mainstreamof American theirclaims would seem stronger culture. Pabst.2d 806. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .I have preliminarily argued that property rightsthat are notpersonal should not necessarilytake precedenceover stronger claims related to personhood. L. I have not attemptedto use the personhoodperspectivein propertyto determinea comprehensive structure specifying both a general justification of propertyand its detailed institutional workingout. the family.202 At this stage of knowledgeand insight equally convenientforStony Brook studentswould not have excluded them. 201. The Melms remaindermen sued forwaste. Concomitantly. 7.May 1982] PROPERTYAND PERSONHOOD 1013 and the importanceof maintainingplaces where those values could be freely expressed. the holder of a life estatepur autrevie in the Melms residence. VI. Some other legal fieldsin which propertyforpersonhood seems relevant are: (1) The doctrineof ameliorativewaste probably now restsimplicitlyon the assumption that the reversioner or remaindermanhas personhood interests at stake that are irrelevantto the valuations of the marketplace.W. Warren & Brandeis. 1973). Yet one may be troubled by that aspect of the case which permitsthose who represent mainstreammajoritymoral attitudesto exclude dissenters. 79 N. Instead. REV. Where otherkindsof object relationsattain qualitativelysimilar individual and social importance.I have only given a surveyof some of its roots.Those who constitutethemselvesas membersof traditionalfamiliespresumablyhave ample opportunities in our culture to reinforce and expressthat life-style. 4 HARV.13.demolishedit to add the land to its brewerynext door. 193 (1890). In the well-knowncase of Melms v. 738 (1899). The surveyof itsmanifestations in Part IV suprawas meant to be suggestiveand by no means exhaustive. The personhood perspectivecan give a clearer answer where one group standsto lose one of its fewopportunities to expresspersonhood.and the fabricof society. 202. Our reverence forthe sanctity of the home is rooted in the understanding that the home is inextricably part of the individual. Pabst Brewing Co.
The California Art Preservation Act..1014 STANFORD LAWREVIEW [Vol. .6 (West Supp. crops. This kind of claim is called drodt moral (moral right) or (author's personalityright). 139. 1982). CIV.101 on Sat. L. and artiststherefore have an interest in protectingtheirworksof fine art againstsuch alterationor destruction. the federalBankruptcyCode exemptsthe debtor's interest(not to exceed $200 per item) in "household furnishings. The court denied reliefbut based its decision on a utilitarian rationale. REV. & PROF.or household use. LEGAL STUD.The creditors'claims are clearly fungibleand the exempt items may be personal.01-. The CaVfornia rights ResaleRoyales ActAs a TestCaseforPreemption Under the 1976 Coprght Law. personal. 81 COLUM. grantingartistsadditional property in the formof a 5% royaltymost timesa work changes hands. but it simply assumes land is "unique" and it does not give adequate scope to the uniquenessof othergoods to some holders.g. . Bus. ? 522(d)(4). The UNIFORM LAND TRANSACrIONS AcT (1978) grants enhanced rightsto a "protectedparty"-defined essentiallyas a homeowner mortgagor-in many circumstances. 271." 11 U. See 3 COLLIER ON BANKRUPTCY family. 11 522. CODE ? 986 (West Supp. and that thereis also a public interest in preserving the of cultural and artisticcreations. which in some cases (i.as a starting about the rolesof the personhoodperspective. CIV. CIV. See Note. See ? 1-203 and Commissioners'Comment to ? 1-203. (3) An interesting recent development that seems to stem directlyfrom the civil law tradition of which Hegel was a part is the grantingto artistsof rightsover theirwork afterit has passed out of their hands. personal. 143-50 (1978). point forfurther in societyought interests (1) At least some conventionalproperty to be recognizedand preservedas personal.to give the artistthe rightto preventownersof her work fromalteringor destroying it. animals.." integrity California also went beyond copyrightin enacting the droit de suite (California Resale RoyaltiesAct. (6) The common law requirementthat parties' attemptsto create servitudesupon land will be honoredonly ifthey"touch and concern" the land could be related to preservationof autonomy and human dignity.J.g.S. (2) Where we can ascertain that a given propertyrightis personal. land transfers) would be a groundfordenyingspecificperformance where it is now routinely granted.C. which is an expressionof the artist'spersonality.153. CODE ? 2949 (West 1974) (prohibiting declaringdefaultor acceleration upon further encumbrance of owner-occupiedsingle-family residence). or musical instruments that are held primarilyfor .e. or household use. . . 89 YALE L. declares "that the physical alteration or deof fineart. CAL.which proUrheberpersonl:chkeasrecht tectsonlyagainst economic exploitationof one's workby others.e. 34:957 I suggest. CODE ? 10242. This content downloaded from 5. longernotice beforeinstituting foreclosure and a ban on deficiency judgments. ? 522(d)(4) (Supp. . See Schwartz.Neitherdoes it take into account the factthat the item may be personal to the seller and fungibleto the buyer seeking enforcement.Judicial Supervisron of Servitudes. books. . 1981). III 1979). thereis a prima facie case that that rightshould be protected stood in an industrialwasteland. CAL. CODE ? 987 (West Supp.26 (15th ed. these propositions: thought. For example. (4) The law has long allowed bankrupted persons to preserve some propertyclaims against theircreditors. See Reichman.CAL. (5) Special protections forhomeownerswho borrow on purchase-moneymortgagesare common. 296-98 (1979). .CAL." Id. The CaseforSpecfic Performance. and $500 worthof "jewelry held primarilyfor .. family. 1315 (1981). (2) The doctrineof specificperformancegives enforcement of contracts for "unique" goods. It goes beyond copyright. 1982) Qimitingprepaymentchargesforloans on owner-occupiedsingle-family residences). e. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions . See. 7 J.13.is detrimentalto the struction artist'sreputation. 1982)).
the claimants'opportunities in the contextof our societywould be destroyed or significantly lessened.13. to become fullydeveloped personsin the contextof our societywould be destroyedor lessened. (3) Where we can ascertain that a propertyright is fungible.153.This case is strongest where without the claimed the claimants' opportunities personhoodinterest. This case wherewithoutthe claimed protection of property is strongest as perto become fullydeveloped persons sonal.101 on Sat. significantly This content downloaded from 5. thereis a prima faciecase that that rightshould yield to some extent in the faceof conflicting recognizedpersonhoodinterests. and probably also where the personal propertyrights are claimed by individuals who are maintaining and expressingtheir group identity. 28 Dec 2013 11:44:31 AM All use subject to JSTOR Terms and Conditions .May 1982] PROPERTY AND PERSONHOOD 1015 and against cancellato some extentagainst invasionby government claims of other tionby conflicting fungible property people. not embodied in property.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.