Property – is it personal?


So with the courts apparently in the doldrums in terms of issuing decisions (lots of sentencing and immigration decisions in the First Circuit, nothing of Maine law note), I have the time to wax philosophical based on my trip to Japan and other recent events, about the nature of property.

Japan is a crowded island, and to survive and thrive, the people share a communal mentality. The housing from the outside is rather drab.  Individual statements are made through how one dresses, and other expressions with personal property, like gifts.  There are whole stores that sell special gorgeous wrapping fabric for presents.  Presentation – of you, gifts, food, etc. is very important.

All of these observations made me think about the body of legal philosophy that proposes that, unlike the actual law today, personal property should be valued more greatly than real property, because it is an expression of selfhood.  Margaret Radin was probably the more prominent proponent of this view.  (E.g. Property and Personhood, 34 Stan. L. 957 (1982).)  Among other things, these commentators note how historically, there was no great legal divide between property and personal rights – rather, the personal and property were all of a piece.  See generally L. Underkuffler, On Property: An Essay, 100 Yale L Journal 127 (1990).  John Locke, for example, said, "Though the earth, and all inferior Creatures be common to all Men, yet every Man has a PROPERTY in his own person."  (Second Treatise of Government, s. 27).  James Madison said "Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses."  (J. Madison, Property at 102 (1792)).

Interestingly, this line of commentary, focusing on property as an expression of selfhood, is usually applied to erode property rights – essentially because it deems property value contextual, in a relativist legal world, and so manipulable by political or legislative value-setting.  This contrasts with a  more natural law, objectivist view of property as an immutable thing in itself.  To me, however, the argument could be turned on its head, to elevate property protection without the post-Lochner distinctions between property and personal rights.

Obviously, generally speaking, we do not use a relativist valuation for property, or elevate personal property over real property today.  When the government takes property, for example, it looks to objective market value.  It doesn't matter that they are taking your old homestead, in the family for generations – its worth is the going rate, stripped of those emotional investments.  The same market value test applies whether the property is real or personal.

As a practical matter, it's difficult to see how the law could be otherwise.  The problem with a contextual, mushy subjective test is that someone has to then decide the value, individually, not only eliminating predictability and bright lines, but investing that decision-maker with a lot of power.  So the current view of valuing property from an objective, market perspective is probably not only the workable one, but as fair as we can get for a general rule.

That said, there is certainly some "property" that should be the exception to the rule.  Two weeks ago my dog, Fricka, died.  While the law would value her by this general market standard, I know, like any dog owner, how absurd this is.  Money can't buy what Fricka was worth, and I will miss her.