|legal theory: philosophy|
Radin's "Personhood" Approach
The views of Margaret Jane Radin that I describe here are set forth in the Introduction and first two chapters of her book, Reinterpreting Property (Chicago: University of Chicago Press, 1993). They are inspired, Radin says, but are not meant precisely to track, by Hegel's views about the reasons for having a social institution of private property, developed in his Philosophy of Right (or Philosophy of Law). You can find a superb treatment and development of Hegel's property theory in Jeremy Waldon, The Right to Private Property (Oxford: Oxford University Press, 1988).
In order to get the connection between Radin and Hegel, all you need to know about Hegel's general philosophical view and his more specific thought about private property is this. Hegel maintained that a human being cannot live a full or proper human life, a life that matches up to the special human capacity for freely exercised agency, without coming to a full consciousness and appreciation of herself as a person sharing a society and a culture with other human beings and indeed sharing with them the making of that society and culture. In Hegel's view, furthermore, achievement of this kind of self-appreciation is not possible except through a person's voluntary and designed interactions with the material and social worlds -- interactions that leave on those worlds the mark or imprint of her agency, her efficacy, in a way that not only is visible to her but that she knows is visible to others, as her work. But people cannot, in general, have much hope of imprinting themselves on the material and social worlds in this way (Hegel says) unless they can be made secure in their control over parcels of the material world, extended through at least a moderate length of time. Hence, the institution of private property is justified in a consequentialist manner, as conducive to the fulfillment of a basic and universal human interest. Of course, this consequentialist justification for private property institutions in general gives rise, as well, to a basis for criticizing particular forms and details of such institutions (a point on which, it might occur to you, some successor German social philosophers were quick to pick up).
Plainly, Hegel's justification of private property is a right-based justification. Plainly, it "take[s] [the individual's] decision or conduct as of fundamental importance." This theory, though, unlike Kantian theory as rendered by Ackerman, quite expressly relies on consequentialist reasons for attributing private property rights to individuals. That is, it relies on reasons arising out of a concern for certain interests of individuals that the theory regards as crucial to their well-being and flourishing, for the advancement of which a social practice of recognizing and respecting private property rights has beneficial consequences. And one can see, then, how the specific nature of these vitally important interests of individuals suggests the attachment of especial significance to property rights of a particular kind -- namely, rights to retain control and possession of those discrete parts of the physical and social worlds in which one has invested one's inspirations and energies in such a way as to make them into extensions of oneself, so that one's relationship with them has become partially constitutive of one's self-recognition or identity.
It is from these aspects of Hegel's property theory that Radin developed her ideas about "property for personhood" and her distinction between "personal" and "fungible" property. She develops these ideas in Chapters 1 and 2 of her book, Reinterpreting Property (Chicago: University of Chicago Press, 1993).
What application, if any, has Radin's philosophically-grounded theorizing about private property to the taking question? At first blush, the answer would seem to be none, because there is a mismatch between the central concerns of Radin's theory and the specific focus of the taking question. The taking question is specifically one about how to decide when governmental interference with the use and enjoyment of private property is such as to oblige the government to compensate the owner of the property for his loss. Radin's writing sometimes implies that the case is stronger for compensability if the affected item of property is "personal" as opposed to "fungible." However, that suggestion appears to make no sense. The government, let us suppose, finds itself in dire need of platinum to deal with a national emergency, and so a law is passed requiring everyone to turn in their platinum. Joe Jeweler owns five platinum wedding rings. Harry Husband owns one. Joe's wedding rings are fungible property to him, Harry's is personal property to him. Personal property, says Radin, is property that "cannot be replaced without pain by money or another similar object of equivalent market value," because it is a "particular object" in which an person's "individuality and selfhood [have] become intertwined." If so, then compensating Harry doesn't help matters, although compensating Joe certainly does. The personal/fungible distinction thus seems not to feed into the taking question in the way Radin apparently wants it to.
Radin's answer can be found in chapter 2 of Reinterpreting Property, on "Residential Rent Control." We can grasp it most clearly if we get our test case back before us. This time, let us suppose that the judge is persuaded that settlement costs are lower than both demoralization costs and utility gains. That being so, she will order compensation regardless of whether she is a utilitarian (because doing so maximizes society's over-all benefit from the rent law) or a Kantian (because only by doing so can society avoid treating affected owners as mere means to society's ends). But, argues Radin, the judge may very well not do so if she uses personhood theory as her philosophical (or, Ackerman's term, "scientific") frame of reference.
Radin begins her argument by emphasizing how people's homes, whether rented or owned, are a prime example of property that is "personal" to them, not fungible, while pointing out that property rented out by landlords is fungible to them, not personal. She then continues:
It is plausible to maintain that if government must respect equally the personhood of all, it cannot permit forms of fungible property that make full self-development impossible for one class and are not necessary for the self-development of the holders. If the government has erroneously permitted wrongful fungible property . . . and acts to correct its error, compensation is not appropriate for reasons analogous to why it is inappropriate to compensate "expropriated" slaveholders . . . . The citizenry as a whole is not required to legitimate (by paying the value of) a benefit that the beneficiary held in error and as a wrong against our ideas of individual worth.
Radin's argument here proceeds, of course, from the not-very-surprising proposition that people's homes, whether rented or owned, are a case of property that is "personal" to them, not fungible. You should be able to see immediately how this argument would apply to defeat the claims of landlords to compensation for the revenue and market-value losses imposed on them by our hypothetical rent law.
I ask you now to focus on the structure of Radin's argument, not on whether you find yourself in the end persuaded by it (which you won't if you tend more to utilitarianism, Kantianism (a la Ackerman), or Lockean theory than you do to personhood theory). Notice first how the argument redeems the claim that the personal/fungible distinction connects with the taking question, and does so in a rather surprising way. Radin's point turns out not to be the (insupportable) one that people do have especially strong claims to be compensated for government-imposed losses of use or enjoyment of personal as opposed to fungible property. Rather, hers is the quite different point that people do not have strong claims to be compensated by society for losses of modes of use and enjoyment that it was morally wrong for society to have granted in the first place. That is where the personal/fungible distinction comes in, because Radin maintains that it is morally wrong, at least sometimes, for society to allow some people to deploy their fungible property in ways that defeat other people's enjoyment of their personal property.
That brings us back to our point about the structure of Radin's argument--that is, that the argument is both right-based and consequentialist. It's particularly interesting to see how these features of Radin's theory explain why it reaches different results from both utilitarianism (which is adamantly (social) goal-based) and Kantianism (which is adamantly non-consequentialist) in our test case. In Radin's right-based argument, the individual tenant's claim not to be stripped of her home is a trump; in goal-based utilitarian theory, there are no trumps. In Radin's consequentialist argument, the individual tenant's right not to be stripped of personal property (a home) is morally stronger than the individual landowner's right not to be stripped of fungible property (revenue and market value). What makes it stronger is that being stripped of personal property has categorically worse consequences for people than being stripped of fungible property. By contrast, in Ackerman's Kantian theory, consequences do not count, and the human right not to be treated as a mere means is always of infinite moral strength.