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How Squatters, Pirates, and Protesters Improve the Law of Ownership
By Eduardo Moiss Pealver, Sonia K. Katyal
Yale UNIVERSITY PRESSCopyright © 2010 Eduardo Moiss Pealver and Sonia K. Katyal
All rights reserved.
WHY PROPERTY OUTLAWS?
We are not the first to observe the role of intentional lawbreaking in fostering valuable legal change. Legal theorists have long left some space for the occasional disorder created by conscientious civil disobedience. Two aspects of this literature, however, are of particular interest to us. First, these discussions typically fail to distinguish among the various substantive areas of law on which the mechanisms of intentional lawbreaking might operate. Second, with a few notable exceptions, they tend to disfavor or condemn what we are calling "acquisitive" disobedience. In this chapter we address the first of these issues. Later in the book we address, among other things, the significance (and at times insignificance) of the outlaw's goals in evaluating the proper legal response to lawbreakers.
Within the Western legal tradition, theorists have for centuries taken the position that citizens are not obliged to obey unjust laws. Saint Augustine, for example, famously said that "a law that is unjust seems to be no law at all." Thomas Aquinas adopted and refined the Augustinian position in his own natural law jurisprudence. Unjust laws are not laws, Aquinas said, but rather acts of violence. Frequently misunderstood (and misconstrued), the essence of Aquinas's position is that an unjust law does not compel obedience of its own moral force, although one may be obligated to obey unjust laws in order to avoid creating even worse consequences, such as social disorder or demoralization. Although Aquinas's concern with the consequences of legal disobedience substantially qualifies his endorsement of unlawful behavior by citizens confronting unjust laws, Thomistic legal theory leaves ample room for justified disobedience. Thus, it was not at all inappropriate that, in defending the morality of his own campaign of civil disobedience against racial injustice in his famous "Letter from a Birmingham Jail," Martin Luther King Jr. relied heavily on this Augustinian-Thomistic natural law tradition.
More recently, Ronald Dworkin has made a powerful argument for the (limited) legitimacy of civil disobedience, an argument rooted in the dignity and power of individual conscience. Dworkin argues that lawbreaking can sometimes be justified when it is undertaken to protect a person's sense of integrity, as when the law requires people to perform acts that they view as deeply immoral, or when lawbreaking is employed as a means of expressing views about the injustice of an existing law. He distinguishes these two motives for lawbreaking from conduct aimed at merely expressing or hindering the foolishness of a particular law, which he considers more difficult to justify. Moreover, he distinguishes all three sorts of conscientious lawbreaking from "ordinary criminal activity motivated by selfishness or anger or cruelty or madness," which he says is always wrong. Distinctions like Dworkin's have also been drawn by John Rawls (who argues that disobedience could not be based on group or self-interest alone) and Michael Walzer (who contrasts justifiable civil disobedience with "frivolous or criminal disobedience" not based on "morally serious" objections).
In contrast to the justice-centered account of the natural law tradition and the focus on individual conscience within Dworkin's theory of justified disobedience, the work of some scholars has focused on the instrumental role of disobedience as a tool to challenge the inertia of the political system that impedes the realization of majority sentiment. In a recent essay in the Yale Law Journal, Daniel Markovits sets forth a more expansive justification of disobedience than Dworkin's, a justification based not on the governing role of individual conscience but on the nature of governance itself. His paper valuably highlights the institutional role of intentional lawbreaking as a tool for exposing and overcoming inertia within democratic processes. Markovits views inertia as an inescapable feature of democracy, one that is necessary for the cultivation and reproduction of democratic engagement. He argues that through the practice he terms "democratic disobedience," civil disobedients can overcome that inertia by using disobedience to bring outmoded laws dramatically to the attention of lawmakers and the electorate, forcing onto the agenda issues that might otherwise go undetected.
Finally, in his classic Harvard Law Review foreword "Nomos and Narrative," Robert Cover takes an even broader approach, describing some lawbreaking as part of a process of decentralized legal interpretation through which dissenting groups pursue their own normative visions by structuring their lives around their own particular legal understandings. According to Cover, the private legal conceptions of these dissenting groups are, at least as an initial matter, no less "law" than the official legal understandings enshrined in the formal law of the dominant community. It is possible, Cover argues, that lawbreakers and judges alike "are all engaged in the task of constitutional understanding," and their distinctive perspectives "make us realize that we cannot pretend to a unitary law." In contrast to conceptions of civil disobedience that view lawbreaking as an exceptional case of justified deviation from official versions of the law, and to Markovits's discussion of disobedience as a mechanism for vindicating subsumed majoritarian impulses, Cover's pluralistic approach views conscientious disobedience as an example of faithful commitment to a dissenting minority's own understanding of law.
Applying this conception, Cover describes the Greensboro protesters we discussed in the opening pages of this book not as lawbreakers so much as a group of people aligning their actions with their own reading of the Constitution. According to Cover, that behavior does not occur in a vacuum. By choosing to honor their commitment to an unofficial version of law, the lunch-counter protesters remained true to their legal vision while communicating to those in officialdom a forceful message of dissent. Equally important, in a manner not possible through any other means of legal discourse, they forced public officials to examine the strength of their own commitments to the official legal status quo—and some officials answered by embracing the protesters' legal interpretation.
These four approaches we have been describing offer valuable insights into the legitimate role of legal disobedience in a democratic society. They have not, however, taken account of the possibility that there might be a special relationship between disobedient dissent and the law of property, understood broadly to include both tangible and intellectual property. We seek to add texture to these broader philosophical discussions of disobedience by focusing on the special significance that property lawbreaking has for private citizens who are disenfranchised from institutionalized structures. Outlaws and altlaws have played a uniquely important role by repeatedly vindicating rights and overcoming democratic inertia. By creating an informal space for actively reevaluating and challenging dominant legal understandings, they have helped catalyze deliberation about the degree to which the law may be based on outdated assumptions or has otherwise failed to give due regard to the rights or interests of some segment of the community.
In focusing on the particular value of lawbreaking for the development of property law, however, we do not deny that disobedience can be (and has been) used effectively to express political dissent about any number of questions. Our argument for the special significance of property lawbreaking proceeds in four stages: (1) first, we observe the (subjective and objective) importance of property in people's day-to-day lives; (2) next, for reasons related to its importance, we argue that property doctrines and distributions have a particularly strong tendency toward inertia and ossification; (3) somewhat paradoxically, however, despite its apparent stability, violations of property laws are typically seen as less culpable than other categories of unlawful acts; and (4) because of property's blend of importance, stability, and violability, property lawbreaking acquires a unique communicative power to reimagine our relationships with the material world and with each other and to provide an informal forum for airing conflicts over resources between owners and nonowners, which the law can eventually shift to accommodate.
The Important Role of Property in People's Lives
Tangible- and intangible-property laws play a vital role in shaping people's lives. Hegelian thinkers, such as Margaret Jane Radin, have thoughtfully elaborated theories asserting that property ownership is uniquely essential to the construction of personal identity and personhood. These theorists argue that the control we enjoy over our property develops our capacity to act as autonomous beings. Moreover, our public exhibition of such control permits us to communicate that autonomy to our fellow citizens.
One need not fully embrace Hegel's Philosophy of Right, or go as far as Radin in asserting a connection between property and identity, to appreciate the unique value of property in the construction and experience of our social reality. Ownership of land and the structures attached to land provide the spaces and places in which we carry out our social existence and clarify the divisions of labor, responsibility, and authority necessary for the very conduct of human society. We form and communicate our identities as individuals or members of groups by wrapping ourselves in personal or cultural property. Likewise, our contemporary popular culture is embodied in expressions and innovations that are increasingly protected by intellectual property. Accordingly, property rights and the social norms that accompany (and are often reinforced by) ownership play a vital role in ordering our interactions with other human beings. As the Canadian geographer Nicholas Blomley has put it, "the environment of the everyday is ... propertied, divided into both thine and mine and more generally into public and private domains, all of which depend upon and presuppose the internalization of subtle and diverse property rules that enjoin comportment, movement, and action."
The importance of property for human beings points in several directions at once. On the one hand, it suggests a need to protect existing property entitlements forcefully. On the other hand, the centrality of property to the satisfaction of fundamental human needs in turn creates a strong impetus for those excluded from participation in the system of ownership to challenge both existing property rules and established allocations of entitlements.
For example, those who lack access to the social benefits of private ownership, such as the very poor and the homeless, find themselves extraordinarily isolated from much of the social and commercial activity that most of us take for granted. This social isolation, rooted ultimately in our system of property distribution, can cause enormous psychological, and even physical, harm. The isolating and disabling effects of exclusion from participation in a property system, however, mean that those on the outside looking in will often have few means to communicate their dissent beyond the simple act of taking or occupying.
This duality of stability and conflict is further complicated by the simultaneous over- and underinclusiveness of ownership as the crucial link between property and identity. Not all property owners feel the same expressive and interactive link between property, ownership, and identity, a factor that directly implicates the productive role of the lawbreaker in shifting entitlements. Vast numbers of property owners (publicly traded corporations and their shareholders, for example) feel no essential connection to a great deal of their owned properties. Conversely, many nonowners feel strong connections to many things they do not own but come into intimate contact with for any number of reasons.
The possibility of such a mismatch was, for example, the basis on which sit-down strikers in 1936 and 1937 defended their occupation of tire and automobile factories in an effort to force manufacturers to recognize workers' rights under federal law to unionize and bargain collectively. In 1937 alone, roughly 400,000 workers participated in nearly 500 sit-down strikes. At the height of the sit-down movement, industrial employment in Detroit slumped by a third as a result of the strikes. The largest of these strikes, the famous occupation of the General Motors facilities in Flint, Michigan, which involved tens of thousands of GM workers, began in the last days of 1936 and was resolved (favorably to the workers) just as the Supreme Court was hearing oral arguments in the pivotal NLRB v. Jones & Laughlin Steel Corp. case (the case that gave us the so-called "switch in time" in which the Court reversed its earlier opposition to the New Deal, averting a confrontation with the Roosevelt administration and a possible constitutional crisis).
Employers responded to the sudden explosion of factory occupations by appealing to the sanctity of private property rights. According to Jim Pope, when GM initially refused to negotiate with sit-down strikers, it "claimed to be fighting for the rights of every car manufacturer, business, and even homeowner, for the sit-down strike was 'striking at the very heart of the right of possession of private property.'" Employees, however, scoffed at the attempts by industrial employers to compare the nature of their ownership rights with those of homeowners. "Corporate property," they argued, "can be no one's 'castle' because the exclusion of others would render it useless." To the contrary, the workers argued, their contribution to the production of corporate wealth gave them a property right of sorts in their relationship to the company, one that rivaled or exceeded the property rights of shareholder-owners. Robert Morss Lovett, a GM shareholder writing for the Nation, agreed. He provocatively posed the question: "Who has the better human and natural right to call the Fisher plant his—I, whose connection with General Motors is determined by the price recorded on the New York Stock Exchange, or the worker whose life and livelihood are bound up in the operation of making cars?" It is precisely this imperfect fit between formal ownership and perceived moral entitlement that underlies the ambiguous role of the property outlaw and sets the stage for potentially productive disobedience.
Property's Conservatism and Stability
In part because of its importance, property law is unusually resistant to change. Indeed, central to the ability of the institution of property to carry out its functions are the stability and predictability that it fosters for both owners and nonowners alike. As Abraham Bell and Gideon Parchomovsky have argued, "the institution of property is designed to create and defend the value that inheres in stable ownership." Further, fixed, stable property rules, Thomas Merrill and Henry Smith have suggested, provide informational benefits not just for the owner but also for the entire community that orders itself around those entitlements. In addition, as Radin has observed, stable property rights help individuals develop their identities and carry out their life plans.
Almost by definition, then, property law resists changes to its contours for the very reason that change, as such, strikes at one of its core values. Indeed, American property law is full of doctrines whose principal purpose appears to be the hindrance of nonconsensual alterations in existing property allocations and entitlements. Laws governing contract, fraud, theft, and trespass wrap existing property entitlements in a blanket of public and private legal protection. And the law of the Fifth Amendment's takings clause, particularly the doctrine of regulatory takings, makes it more difficult for the government to rearrange or redefine existing property rights. A regulatory taking can only be found when there has been some change in property law. By requiring government to compensate property owners for certain—particularly severe—changes, regulatory takings law serves as a check on political property reform, a function that has endeared it to libertarians as a legal vehicle for hindering activist government.
Similarly, both property and intellectual property doctrines demonstrate a pervasive tendency to favor first-in-time property users. When two litigants have more or less equivalent claims, property law almost reflexively favors the prior user, appropriator, or occupant. Likewise, the conclusion that a plaintiff has "come to a nuisance," although not an ironclad defense, often makes it harder (or at least more expensive) for that plaintiff to obtain relief. Within trademark law, which protects brands and logos, the law almost always favors the senior user of a mark, even if a junior user has made strong claims of investment. These choices have the collective effect of providing a legal endorsement for preexisting property uses.
Excerpted from Property Outlaws by Eduardo MoisÃ?s PeÃ?alver. Copyright © 2010 by Eduardo MoisÃ?s PeÃ?alver and Sonia K. Katyal. Excerpted by permission of Yale UNIVERSITY PRESS.
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