Margaret Jane Radin,
Property and Personhood

34 Stan. L. Rev. 957 (1982)


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.