Most people possess certain objects they feel are almost part
of themselves. These objects are closely bound up with personhood
because they are part of the way we constitute ourselves as continuing
personal entities in the world. They may be as different as people
are different, but some common examples might be a wedding ring,
a portrait, an heirloom, or a house.
One may gauge the strength or significance of someone's relationship
with an object by the kind of pain that would be occasioned by
its loss. On this view, an object is closely related to one's
personhood if its loss causes pain that cannot be relieved by
the object's replacement. If so, that particular object is bound
up with the holder. For instance, if a wedding ring is stole from
a jeweler, insurance proceeds can reimburse the jeweler, but if
a wedding ring is stolen from a loving wearer, the price of a
replacement will not restore the status quo--perhaps no amount
of money can do so.
The opposite of holding an object that has become a part of oneself
is holding an object that is perfectly replaceable with other
goods of equal market value. One holds such an object for purely
instrumental reasons. The archetype of such a good is, of course,
money, which is almost always held only to buy other things. A
dollar is worth no more than what one chooses to but with it,
and one dollar bill is as good as another. Other examples are
the wedding ring in the hands of the jeweler, the automobile in
the hands of the dealer, the land in the hands of the developer,
or the apartment in the hand of the commercial landlord. I shall
call these theoretical opposites--property that is bound up with
a person and property that is held purely instrumentally--personal
property and fungible property respectively.
Why refer these intuitions to personhood at all? It may appear
that the category I call personal property could be described
as simply a category of property for personal autonomy or liberty.
Property for personal autonomy or liberty might be a class of
objects or resources necessary to be a person or whose absence
would hinder the autonomy or liberty attributed to a person. Bu
there is something more in an affirmative notion of an individual
being bound up with an external "thing." If autonomy
is understood as abstract rationality and responsibility attributed
to an individual, it fails to convey this sense of connection
with the external world. Neither does liberty, if understood in
the bare sense of freedom from interference by others with autonomous
choices regarding control of one's external environment.
Once we admit that a person can be bound up with an external "thing"
in some constitutive sense, we can argue that by virtue of this
connection the person should be accorded broad liberty with respect
to control over that "thing." But here liberty follows
from property for personhood; personhood is the basic concept,
not liberty. Of course, if liberty is viewed not as freedom from
interference, or "negative freedom," but rather as some
positive will that by acting on the external world is constitutive
of the person, then liberty comes closer to capturing the idea
of the self being intimately bound up with things in the external
world.
It intuitively appears that there is such a thing as property
for personhood because people become bound up with "things."
But this intuitive view does not compel the conclusion that property
for personhood deserves moral recognition or legal protection,
because arguably there is bad as well as good in being bound up
with external objects. If there is a traditional understanding
that a well-developed person must invest herself to some extent
in external objects, there is no less a traditional understanding
that one should not invest oneself in the wrong way or to too
great an extent in external objects. Property is damnation as
well as salvation, object-fetishism as well as moral groundwork.
In this view, the relationship between the shoe fetishist and
his shoe will not be respected like that between the spouse and
her wedding ring. At the extreme, anyone who lives only for material
objects is considered not to be a well-developed person, but rather
to be lacking some important attribute of humanity.
The intuitive view of property for personhood just stated is
wholly subjective: self-identification through objects varies
from person to person. But if property for personhood cannot be
viewed as other than arbitrary and subjective, then personal objects
merely represent strong preferences, and to argue for their recognition
by the legal system might collapse to a simple utilitarian preference
summing. To avoid this collapse requires objective criteria differentiating
good from bad identification with objects in order to identify
a realm of personal property deserving recognition. The necessary
objective criteria might be sought by appeal to extrinsic moral
reality, to scientific truths of psychology, or to the concept
of person itself. Taking the latter route, this Part approaches
the problem of developing a standard for recognizing claims to
personal property by referring to the concept of "person"
itself. If that concept necessarily includes certain features,
then those features can determine what personal property is while
still avoiding ethical subjectivism.
A. Theories of the Person
The polymorphous nature of the word "person" inevitably
creates problems for a moral thesis about property built upon
notions of personhood. "Person" stems from the Latin
persona, meaning, among other things, a theatrical role. In Roman
law, persona came to mean simply an entity possessing legal rights
and duties. Today it commonly signifies any human being. But for
philosophers the nature of a person has never been reduced to
a generally accepted theory. An overview of their continuing debate
suggests four main lines of theory.
Perhaps closest to the persona of Roman law, the first conception
is of the person as rights-holder. For Kant, the person is a free
and rational agent whose existence is an end in itself. I shall
call Kantian the view of person focusing on universal abstract
rationality. In this view, personhood has no component of individual
human differences, but rather by definition excludes the tastes,
talents, and individual histories that differentiate one from
another.
Another classical view of the person makes its essential attribute
self-consciousness and memory. Locke defines a person as "a
thinking intelligent being, that has reason and reflection, and
can consider itself as itself, the same thinking thing in different
times and places." For Locke, memory signifies this continuous
self-consciousness. Locke's theory still holds great appeal for
those who puzzle over the mysteries of personal identity.
These two classical views are compatible with thinking of persons
as disembodied minds or immaterial essences. In contrast is the
view that persons are human bodies. The sophisticated version
is that continuous embodiment is a necessary but not sufficient
condition of personhood. To recognize something as a person is,
among other things, to attribute bodily continuity to it. Indeed,
Wittgenstein says that the best picture of the human soul is the
human body.
Last, some theorists find these traditional views too pale, and
suggest that the individual's ability to project a continuing
life plan into the future is as important as memory or continuing
consciousness. Allied with this is the view that what counts in
recognizing something as a person is a consistent character structure.
Persons are what they are in virtue of their past and future integrated
by their character.
Other ways of thinking about persons may not fall within these
four rough categories. The thorough empiricist or metaphysical
skeptic may say there is no such "thing" as a person.
To that end, Hume argues that a person is "nothing but a
bundle or collection of different perceptions," and that
the feeling of self-identify over time is merely a persistent
illusion. The behavioral psychologist might say that the self
is nothing separate from the body's processes and activity in
the environment. In a similarly empirical and skeptical vein,
a positive economist might conceive of a person as nothing but
a bundle or collection of tastes and desires, conventionally recognized
as a unit; but the economist must borrow enough of the Kantian
view to attribute instrumental rationality to this aggregate.
Alternatively, non-behavioral psychologists may think of the person
as a self, a subject of mental states. This conception relates
both to the Lockean self-consciousness theory of the person and
to the theory of character structure. Still, the structural postulates
of Freudian theory may perhaps be considered a separate theory
of the person.
A communitarian would find all of those concepts of personhood
wrongheaded because they all derive from the individualistic worldview
that flowered in western society with the industrial revolution.
In a society in which the only human entity recognized in social
intercourse is some aggregate like the family or clan, there could
not be such intense philosophical attention to the biological
individual and its ontological, psychological, moral and political
status. In view of the individualist roots of those theories of
the person, it comes as no surprise that thinkers who wish to
progress from an individualist to a communitarian world-view are
impatient with them. Communitarians see the myth of the self-contained
"man" in a state of nature as politically misleading
and dangerous. Persons are embedded in language, history, and
culture, which are social creations; there can be no such thing
as a person without society.
For the sake of simplicity, I shall initially confine my inquiry
to the types of the person posited by the more traditional, individual-oriented
theories. But the communitarian critique reminds us that the idea
of the person in the abstract should not be pushed beyond its
usefulness. In what follows I shall on occasion attempt to pay
attention to the role of groups both as constituted by persons
and as constitutive of persons.
B. Property and Theories of the Person
Bypassing for the moment Kantian rationality and Lockean memory,
let us begin with the person conceived as bodily continuity. Locke
says that "every Man has a Property in his own Person,"
from which it immediately follows that "[t]he Labour of his
Body, and the Work of his hands . . . are properly his."
Though, as we have seen, Locke elsewhere considers the person
as reflective consciousness and memory, he may well mean here
that one literally owns one's limbs and hence must own their product.
If not, perhaps property in one's person should be understood
to mean simply that an individual has an entitlement to be a person
or to be treated as a person. This would probably include the
right to self-preservation on which Locke bases the right to appropriate.
If it makes sense to say that one owns one's body, then, on the
embodiment theory of personhood, the body is quintessentially
personal property because it is literally constitutive of one's
personhood. If the body is property, then objectively it is property
for personhood. This line of thinking leads to a property theory
for the tort of assault and battery: Interference with my body
is interference with my personal property. Certain external things,
for example, the shirt off my back, may also be considered personal
property if they are closely enough connected with the body.
The idea of property in one's body presents some interesting paradoxes.
In some cases, bodily parts can become fungible commodities, just
as other personal property can become fungible with a change in
its relationship with the owner: Blood can be withdrawn and used
in a transfusion; hair can be cut off and used by a wigmaker;
organs can be transplanted. On the other hand, bodily parts may
be too "personal" to be property at all. We have an
intuition that property necessarily refers to something in the
outside world, separate from oneself. Though the general idea
of property for personhood means that the boundary between person
and thing cannot be a bright line, still the idea of property
seems to require some perceptible boundary, at least insofar as
property requires the notion of thing, and the notion of thing
requires separation from self. This intuition makes it seem appropriate
to call parts of the body property only after they have been removed
from the system.
Another paradox is whether replacing any of my body parts with
fungible plastic makes me a different person, and whether the
plastic parts once inserted should be considered personal property
or something else. The plastic parts question represents the converse
of the problem concerning the sale of natural organs. The natural
organ becomes fungible property when removed from the body, but
remains purely personal, thus seemingly not property, while it
is still inside the body. Conversely, plastic parts are fungible
when sold to the hospital, but once inserted they are no longer
fungible, and should be considered as the natural organs they
replace, hence perhaps no longer property at all.
Next, let us consider the person as individual rationality, the
Kantian person. If persons are bare abstract rational agents,
there is no necessary connection between persons and property.
Therefore, Kantian rationality cannot yield an objective theory
of personal property. One might introduce external objects to
a population of Kantian persons in the state of nature or in Rawls's
original position to see how they divide things among themselves
(and so it might be hard to think of justice among these persons
without property), but object relationships are still not a necessary
corollary to the concept of personhood in this view.
In Locke's view of persons as continuing self-consciousness characterized
by memory, the external world may enter the concept of person.
Memory is made of relationships with other people and the world
of objects. Much of the property we unhesitatingly consider personal--for
example, family albums, diaries, photographs, heirlooms, and the
home--is connected with memory and the continuity of self through
memory. But the pure Lockean conception of personhood does not
necessarily imply that object relations (and the expected continuity
of those relations that property gives) are essential to the constitution
of persons, because that conception is disembodied enough not
to stress our differentiation from one another. It is possible
to hold the Lockean conception and still believe that memory is
part of an immaterial essence of the person that has no inherent
connection to the material world. But in a neo-Lockean view rejecting
such dualism and making self-differentiation important, it seems
object relations are necessary and central to self-constitution.
Finally, let us consider the view that what is important in personhood
is a continuing character structure encompassing future projects
or plans, as well as past events and feelings. The general idea
of expressing one's character through property is quite familiar.
It is frequently remarked that dogs resemble their masters; the
attributes of many material goods, such as cars and clothes, can
proclaim character traits of their owners. Of course, many would
say that becoming too enthralled with property takes away time
and energy needed to develop other faculties constitutive of personhood.
But, for example, if you express your generosity by giving away
fruits that grow in your orchard, then if the orchard ceases to
be your property, you are no longer able to express your character.
This at least suggests that property may have an important relationship
to certain character traits that partly constitute a person.
This view of personhood also gives us insight into why protecting
people's "expectations" of continuing control over objects
seems so important. If an object you now control is bound up in
your future plans or in your anticipation of your future self,
and it is partly these plans for your own continuity that make
you a person, then your personhood depends on the realization
of these expectations. This turn to expectations might seem to
send property theory back toward Bentham, who declared that "the
idea of property consists in an established expectation."
But this justification for honoring expectations is far from Benthamite,
because it applies only to personal property. In order to conclude
that an object figuring into someone's expectations is personal,
we must conclude both that the person is bound up with the object
to a great enough extent, and that the relationship belongs to
the class of "good" rather than "bad" object-relations.
Hence we are forced to face the problem of fetishism, or "bad"
object-relations.
C. The Problem of Fetishism
We must construct sufficiently objective criteria to identify
close object relations that should be excluded from recognition
as personal property because the particular nature of the relationship
works to hinder rather than to support healthy self-constitution.
A key to distinguishing these cases is "healthy." We
can tell the difference between personal property and fetishism
the same way we can tell the difference between a healthy person
and a sick person, or between a sane person and an insane person.
In fact, the concepts of sanity and personhood are intertwined:
At some point we question whether the insane person is a person
at all. Using the word "we" here, however, implies that
a consensus exists and can be discerned. Because I seek a source
of objective judgments about property for personhood, but do not
wish to rely on natural law or simple moral realism, consensus
must be a sufficient source of objective moral criteria--and I
believe it can be, sometimes, without destroying the meaning of
objectivity. In the context of property for personhood, then,
a "thing" that someone claims to be bound up with nevertheless
should not be treated as personal vis-a-vis other people's claimed
rights and interests when there is an objective moral consensus
that to be bound up with that category of "thing" is
inconsistent with personhood or healthy self-constitution.
Judgments of insanity or fetishism are both made on the basis
of the minimum indicia it takes to recognize an individual as
one of us. There does not seem to be the same reason to restrain
a private fetishist as there would be to restrain an insane person
prone to violence against others. But the restraint of denying
the fetishist's property special recognition as personal is less
severe than that imposed on someone deemed violently insane. To
refuse on moral grounds to call fetishist property personal is
not to refuse to call it property at all. The immediate consequence
of denying personal status to something is merely to treat that
thing as fungible property, and hence to deny only those claims
that might rely on a preferred status of personal property.
A broader aspect of the problem of fetishism is suggested by Marx's
"fetishism of commodities." Marx attributed power in
a market society to the commodities that form the market. He believed
that people become subordinate in their relations to these commodities.
In other words, under capitalism property itself is anti-personhood.
Even if one does not accept that all capitalist market relations
with objects destroy personhood, it is probably true that most
people view the caricature capitalist with distaste. Most people
might consider her lacking in some essential attribute of personhood,
such as the capacity to respect other people or the environment.
If there is some moral cut-off point, beyond which one is attached
too much or in the wrong way to property, the extent to which
someone may emulate the caricature capitalist and still claim
property for personhood is not clear, but is not unlimited. Although
the caricature capitalist cannot express her nature without control
over a vast quantity of things and other people, her need for
this control to constitute herself the complete capitalist could
not objectively be recognized as personal property because at
some point there is an objective moral consensus that such control
is destroying personhood rather than fostering it.