Pragmatism and Postcolonialism: Protecting Non-Owners in Property Law

Abstract

Property law has a particular problem with non-owners. Although property law has a very clear understanding of the rights of “owners,” it has only a vague understanding of the rights of “non-owners.” The problem is significant, because modern property law is so often called upon to balance the rights and needs of owners and non-owners. With so vague an understanding of one set of rights, property law cannot adequately perform this function. The New Jersey case of State v. Shack exemplifies this problem, because it purports to be a case about protecting non-owners. By examining both the case and the texts upon which the Court relied in deciding the case, this Article argues that the New Jersey Supreme Court could not understand, and therefore could not adequately protect, the non-owners in the case. Instead, in its effort to evince a set of rights powerful enough to overcome the property owner’s rights, the Court eliminated the voices of the migrant workers it claimed to protect.

This Article draws upon postcolonialist theory both in examining the problem and in prescribing a solution. In its prescription, the Article proposes a pragmatic form of postcolonialist inquiry as a theoretical foundation for protecting non-owners in property law. Relying on the less iconic case of Hilder v. St. Peter, the Article proposes three devices within the common law tradition that are well suited to the task of representing and protecting non-owners. As Hilder demonstrates, by the pragmatic use of storytelling, the personalization of claims, and the precise matching of remedies to harm and need, legal decision-makers can more fully consider and protect the rights and needs of non-owners.