Document Type
Article
Publication Title
Virginia Law Review
Publication Date
5-2012
ISSN
0042-6601
Page Number
635
Keywords
property, personhood, progressive, atrocity, violence, adverse possession
Disciplines
Law | Property Law and Real Estate
Abstract
This Article proceeds in three parts. Part 1 examines the centrality and progressive valence of personhood as a conception of property and sketches out a case for why atrocity might foster beliefs of entitlement, gesturing towards Radin's own "intuitive account" of personhood. However, instead of rooting my discussion in Hegel as Radin did, I turn to social psychology and accounts of law and violence to show how bad acts committed in the course of acquiring and owning property can create a deep connection between owner and land. In Part II, I attempt to historicize personhood in the American property tradition. I focus on the Puritan settlement of Massachusetts and the origins of a peculiarly American identification with property: what made it possible for English settlers to embrace the land rather than resist the wilderness. I suggest that personhood was a feature of ownership without moral valence: the product of cooperation and community-building with Native Americans, but also of genocidal conflict with them. As a primary case study, I examine King Philip's War, a conflict in 1675-76 that echoed for hundreds of years in the Indian wars that moved westward across the continent." In Part III, I survey how atrocity continues to foster personhood in an array of contexts involving common ownership, exclusion, and use. I argue that property law is often successful in promoting "human flourishing" and cooperation when it does not attempt to decide cases on the basis of a personhood value in property.
Recommended Citation
Daniel J. Sharfstein,
Atrocity, Entitlement, and Personhood in Property, 98 Virginia Law Review. 635
(2012)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/385