57 Pages Posted: 17 Jul 2012
Date Written: July 16, 2012
For a generation since Margaret Jane Radin’s classic article Property and Personhood, scholars have viewed personhood as a conception of property that affirms autonomy, dignity, and basic civil rights, a progressive alternative to traditional, more economically focused property theories. This article presents a fundamental challenge to personhood as a progressive approach to property. It shows that personhood claims often derive from violent and other harmful acts committed in the course of acquiring and owning property. This persistent and pervasive connection between personhood and violence — the “atrocity value” in property — upends core assumptions about the American property tradition and complicates the progressive social function of property law. This article explains why atrocity creates entitlement, drawing from social psychology and accounts of law and violence to show how violence can foster personhood. The article then explores the deep historical roots of atrocity within the American property tradition, which helped establish an abiding cultural value that encouraged personal identification with property. Finally, the article surveys how atrocity continues to foster personhood in an array of contexts involving common ownership, exclusion, and use. Ultimately, personhood emerges less as a progressive value in property than as a challenge that the law has had to negotiate. Property law is often successful in promoting progressive and cooperative goals because courts do not attempt to decide cases on the basis of a personhood value in property.
Keywords: Property, Personhood, Radin, Progressive, Atrocity, Violence, Native Americans, King Philip's War, Commons, Trespass, Adverse Possession, Nuisance, Regulatory Takings
Suggested Citation: Suggested Citation
Sharfstein, Daniel J., Atrocity, Entitlement, and Personhood in Property (July 16, 2012). Virginia Law Review, Vol. 98, No. 635, 2012; Vanderbilt Law and Economics Research Paper No. 12-23; Vanderbilt Public Law Research Paper No. 12-30. Available at SSRN: https://ssrn.com/abstract=2109960
By Dan Kahan