Dignity taking

Last updated

Dignity taking is the destruction or confiscation of property rights from owners or occupiers, where the intentional or unintentional outcome is dehumanization or infantilization. [1] There are two requirements: (1) involuntary property destruction or confiscation and (2) dehumanization or infantilization. [2] Dehumanization is “the failure to recognize an individual or group's humanity” and infantilization is “the restriction of an individual or group's autonomy based on the failure to recognize and respect their full capacity to reason.” [1] Evidence of a dignity taking can be established empirically through either a top-down approach, examining the motive and intent behind those who initiated the taking, or a bottom-up approach, examining the viewpoints of dispossessed people. [2]

Contents

When this larger harm called a dignity taking occurs, mere reparations (or compensation for physical things taken) are not enough. [1] Dignity restoration is required. [2] Dignity restoration is a remedy that seeks to provide dispossessed individuals and communities with material compensation through processes that affirm their humanity and reinforce their agency. [1] In practical terms, the remedial process places dispossessed individuals or communities in the driver's seat and gives them a significant degree of autonomy in deciding how they are made whole. [2]

The dignity takings/dignity restoration framework was first created by Professor Bernadette Atuahene following her empirical exploration of land dispossession and restitution in South Africa in her book, We Want What's Ours: Learning from South Africa's Restitution Program (Oxford University Press 2014). [1] Since then, many scholars across disciplines have applied these socio-legal concepts to an array of case studies in various time periods and geographic locations, providing a transnational, historicized approach to understanding involuntary property loss and its material and non-material consequences. [3]

The dignity takings/dignity restoration framework provides a lexicon to describe and analyze property takings from poor and vulnerable populations across the globe in different historical periods; focuses on redress by linking events of property dispossession to highlight opportunities for learning, resistance, and solidarity; allows people who are not property scholars to participate in the conversation about involuntary property loss and adequate remedies; captures both the material and immaterial consequences of property confiscation; and inserts dignity into the scholarly discourse about property, countering the singular focus on efficiency, which has dominated legal analysis since the ascendancy of law and economics. [2]

Violent conflict

American Revolutionary War and Loyalists

Legal historian Daniel Hulsebosch applied the dignity takings framework to the American Revolutionary War when the nascent governments subjected Loyalists to a civil death by expropriating their properties, revoking their professional licenses, annulling their civil and political rights, and detaining and banishing them. [4] The American revolutionary government dehumanized Loyalists by taking their lives—the most severe form of dehumanization. [4] The states also infantilized Loyalists by stripping them of their most essential rights and thus impairing their basic autonomy. [4]

Though Loyalists were deprived of their property alongside acts of dehumanization and infantilization, Hulsebosch found that it was not a dignity taking because their stigmatized identity was a choice, rather than an immutable characteristic. [4] However, it seems there may be two different types of dignity takings: for some people, the source of their oppression is an identity that they chose and can disavow at any time, but others are subjugated by an identity that they cannot escape. [1]

Iraqi Kurds

Political scientist Craig Albert analyzed whether the treatment of Iraqi Kurds under both the Islamic State (ISIS) and Saddam Hussein's Baath regime constituted a dignity taking. Both regimes denied Kurdish self-rule through massive property depravation and state-led violence. [5]

Albert's research outlined the circumstances required for the denial of self-rule to be considered infantilization: the community must have a will to self-govern, the community must have the capacity to self-govern, and no greater conflict must result from granting sovereign rule. [5] In his case study of the Iraqi Kurds, Albert concluded that all three factors were present,and that a dignity taking had occurred. [5]

Criminal punishment

Lua Yuille describes gang injunctions as dignity takings. [6] Gang injunctions prohibit suspected gang members from engaging in a wide range of activities that would otherwise be legal. [6] They cannot, for example, in public wear “gang clothes,” or carry “marking substances” like paint cans, pens, and other writing utensils they can potentially use for graffiti. [6] This bans gang members from using certain property in public. [7] These bans amount to the deprivation of identity property, which is property that implicates how people understand themselves. [6] Additionally, Yuille found that the state treats young gang members like inhumane “super predators,” instead of as children and teenagers. [6] The City of Monrovia subjected suspected gang members to a dignity taking because this dehumanizing treatment occurred with the deprivation of their identity property [6]

Labor & Employment

Undocumented workers in Chicago

Sociologist and legal scholar Cesar Rosado conducted ethnographic work in a Chicago worker center called Arise, which provides services to ensure that vulnerable and undocumented workers can exercise their labor rights. [8] Rosado looked at whether two claims of unpaid wages fit within the framework of a dignity taking. [8] First, the unpaid wages constituted the property taken from the workers. [8] When there are severe power asymmetries between employers and workers, infantilization can occur as employers rob their workers of agency. [8] Rosado concluded that wage theft claims can constitute a dignity taking. [8]

Mining and construction battalions in Communist Poland

Polish legal scholars Ewa Kozerska and Piotr Stec argue that Communist Poland's mining and construction battalions are another example of dignity takings because wage theft accompanied dehumanizing treatment. [9] Deemed unworthy of standard military training or uniforms, the battalions' soldiers were considered “class enemies,” e.g. landowners, economic elites, dissenters and their family members, and clerics. [9] Although the battalions operated under the guise of military service, the soldiers were slaves subject to forced labor, treated like animals, and dehumanized. [9]

Public policy

Nationalization of land, farms, and property in Communist Poland

Legal scholars Kozerska and Stec also describe the nationalization of land, agricultural production, and other property in post war Communist Poland as a dignity taking. [9] The state provided landowners no compensation for their nationalized property, and forced them to leave town and abandon their communities. [9] Though the goal of communism was not to dehumanize and infantilize the landowning population—but to free the working class from control and abuse by the owners of capital—the dehumanization and infantilization of the capital class was a necessary evil in this larger liberatory project. [9] According to Kozerska and Stec, “these individuals were persecuted even after expropriation, as they were stigmatized for being a bezet (i.e., former landowner)” and deprived of nearly all opportunity for gainful employment. [9]

Forced evictions in rural China

Legal scholar Eva Pils also writes about a communist nation—China—and how forced evictions intended to create space for China's rapidly expanding cities involved a dignity taking. [10] China has allowed private ownership of urban buildings since the reforms of the 1980s, but not ownership of the underlying land. [10] Since urban owners can buy and sell their buildings, but rural owners cannot, rural properties are extremely vulnerable to expropriation in China as the burgeoning urban real estate market encroaches upon them. [10] Relying on ethnographic interviews, Pils also determined that rural Chinese citizens are routinely infantilized and dehumanized in the course of the dignity taking because the state believes that they are “low quality”, unruly, confused individuals who need to be forcibly educated for their own good in what the state euphemistically calls study classes. [10]

Pils primary contribution was to alter the definition of a dignity taking. In We Want What's Ours, [11] the property confiscation had to occur “without paying just compensation or without a legitimate public purpose.” [11] Pils argues that because the method the Chinese state used to acquire the land and remove its inhabitants was dehumanizing and infantilizing, even if it pays just compensation and the taking is for the legitimate purpose of economic development, a dignity taking has still occurred. [10] Hence, the updated definition of a dignity taking is when a state directly or indirectly destroys or confiscates property rights from owners or occupiers, and the intentional or unintentional outcome is dehumanization or infantilization. [2]

Coverture

Coverture is a legal doctrine dismantled during the twentieth century that prohibited a wife from owning property or entering into contracts in her own name. [12] Historical documents also reveal that the infantilization of women was intended by legislators who codified coverture. But, for women who owned property, the act that precipitated the alleged dignity taking was marriage, which legal scholar Hendrik Hartog argues is more accurately understood as dignity bestowing rather than dignity denying. [13] A bottom up empirical interrogation using original sources established that becoming a wife was a source of dignity for women and it was spinsterhood that was a source of shame. Marriage was a gateway to adulthood and did not trap women in a permanent form of childhood, as the definition of infantilization requires. As a result, Hartog argued that coverture did not constitute a dignity taking because it lacked the dehumanization or infantilization element. [12] Hartog argues that most women chose to enter into relationships where they were subordinate to and dependent upon a man. [13]

Community property

Chicago Public Schools

Legal scholar Matthew Shaw studied the controversial 2013 closure of 49 public schools—which occurred primarily in Chicago's communities of color— and concluded it was a dignity taking. [14] Neighborhood schools are formally state property, but informally they are community property shared by residents in its vicinity. [14]

Japantown in Sacramento, California

Legal scholar Thomas Joo has argued that the demolition of Sacramento's Japantown as part of the city's urban renewal program constituted a dignity taking. [15] Urban renewal was a public program created in the 1940s and 50s that used eminent domain to transfer ownership of homes and businesses in blighted areas to private developers for redevelopment. The avowed purpose of urban renewal was to eliminate urban decay. In practice, it eliminated long standing communities—mostly communities of color like Japantown—which belonged to the people who inhabited, ran businesses in, and frequented the area. Consequently, when authorities demolished Japantown, the larger community as well as individual homeowners and business proprietors suffered an involuntary property loss. [15] After examining key archival records, Joo did not find evidence that city officials intended to dehumanize or infantilize occupants of Japantown. [15] However, the Japanese American occupants newly returned from the internment camps of World War II felt that the demolition of their community was a continuation of this dehumanizing internment. [15]

Los Angeles' King-Drew Hospital

Legal scholar Shaun Ossei-Owusu notes the trend of urban hospital closings in low-income communities, and argues that the closure of Los Angeles' King-Drew hospital in 2007 was a dignity taking. [16] Because King-Drew was the only hospital in the city of Compton and surrounding areas that treated everyone regardless of insurance coverage, it was the community property of those within the hospital's catchment area. [16] Bureaucratic neglect and negligence led to several deaths—the most severe form of dehumanization. [16] After the Los Angeles Times published an award-winning expose on the hospital's many shortcomings, the federal government put it under review and then closed the hospital in 2007. [16] This involuntary property loss as a result of dehumanizing neglect and mistreatment constituted a dignity taking. [16]

Gay bathhouses in New York City

Political Scientist Stephen Engel and English professor Thomas Lyle argue that the shuttering of gay bathhouses in New York at the height of the HIV/AIDS epidemic was a dignity taking. [17] Although the public discourse characterized gay bathhouses as threats to public health and closed them under this pretext, empirical evidence shows that bathhouses were community institutions that actually bolstered public health through education and awareness campaigns. [17] Through closure, state authorities infantilized gay communities by stripping them of their autonomy [17] By shutting down the gay bathhouses, state authorities “destroy[ed] community, depriv[ed] gay men of an important source of emotional sustenance and connection, and ignor[ed] the community-based work accomplished.” [17]

Related Research Articles

In United States constitutional law, a regulatory taking occurs when governmental regulations limit the use of private property to such a degree that the landowner is effectively deprived of all economically reasonable use or value of their property. Under the Fifth Amendment to the United States Constitution governments are required to pay just compensation for such takings. The amendment is incorporated to the states via the Due Process Clause of the Fourteenth Amendment.

Buchanan v. Warley, 245 U.S. 60 (1917), is a case in which the Supreme Court of the United States addressed civil government-instituted racial segregation in residential areas. The Court held unanimously that a Louisville, Kentucky, city ordinance prohibiting the sale of real property to blacks in white-majority neighborhoods or buildings and vice versa violated the Fourteenth Amendment's protections for freedom of contract. The ruling of the Kentucky Court of Appeals was thus reversed.

<span class="mw-page-title-main">Richard Epstein</span> American legal scholar (born 1943)

Richard Allen Epstein is an American legal scholar known for his writings on torts, contracts, property rights, law and economics, classical liberalism, and libertarianism. He is the Laurence A. Tisch Professor of Law at New York University and the director of the Classical Liberal Institute. He also serves as the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution and the James Parker Hall Distinguished Service Professor of Law emeritus and a senior lecturer at the University of Chicago.

<span class="mw-page-title-main">Dehumanization</span> Behavior or process that undermines individuality of and in others

Dehumanization is the denial of full humanity in others along with the cruelty and suffering that accompany it. A practical definition refers to it as the viewing and the treatment of other people as though they lack the mental capacities that are commonly attributed to human beings. In this definition, every act or thought that regards a person as "less than" human is dehumanization.

The chief instrument through which judicial activism has flourished in India is public interest litigation (PIL) or social action litigation (SAL). It refers to litigation undertaken to secure public interest and demonstrates the availability of justice to socially-disadvantaged parties and was introduced by Justice P. N. Bhagwati and Justice V.R. Krishna Iyer. It is a relaxation on the traditional rule of locus standi. Before 1980s the judiciary and the Supreme Court of India entertained litigation only from parties affected directly or indirectly by the defendant. It heard and decided cases only under its original and appellate jurisdictions. However, the Supreme Court began permitting cases on the grounds of public interest litigation, which means that even people who are not directly involved in the case may bring matters of public interest to the court. It is the court's privilege to entertain the application for the PIL.

Kelo v. City of New London, 545 U.S. 469 (2005), was a landmark decision by the Supreme Court of the United States in which the Court held, 5–4, that the use of eminent domain to transfer land from one private owner to another private owner to further economic development does not violate the Takings Clause of the Fifth Amendment. In the case, plaintiff Susette Kelo sued the city of New London, Connecticut, for violating her civil rights after the city tried to acquire her house's property through eminent domain so that the land could be used as part of a "comprehensive redevelopment plan". Justice John Paul Stevens wrote for the five-justice majority that the city's use of eminent domain was permissible under the Takings Clause, because the general benefits the community would enjoy from economic growth qualified as "public use".

Inverse condemnation is a legal concept and cause of action used by property owners when a governmental entity takes an action which damages or decreases the value of private property without obtaining ownership of the property through the use of eminent domain. Thus, unlike the typical eminent domain case, the property owner is the plaintiff and not the defendant.

The American Bar Foundation (ABF) is an independent, nonprofit national research institute established in 1952 and located in Chicago, United States. Its mission is to expand knowledge and advance justice by supporting innovative, interdisciplinary and rigorous empirical research on law, legal processes and legal institutions. This program of sociolegal research is conducted by an interdisciplinary staff of Research Faculty trained in such diverse fields as law, sociology, psychology, political science, philosophy, economics, history, and anthropology.

<span class="mw-page-title-main">William Treanor</span> American lawyer

William Michael Treanor is an American attorney and legal scholar. He is the dean of Georgetown University Law Center, the former dean of Fordham University School of Law, and an expert on constitutional law, having twice been cited in Supreme Court opinions. He continues to teach as a professor. Treanor held several high-profile government positions and he is an advocate of civil service. His teaching and work evidence Treanor's commitment to his philosophy of a complete legal education: "Intellectual excellence, the craft of lawyering, and dedication to public service."

<span class="mw-page-title-main">Margaret Jane Radin</span> American legal scholar

Margaret Jane Radin is the Henry King Ransom Professor of Law, emerita, at the University of Michigan Law School by vocation, and a flutist by avocation. Radin has held law faculty positions at University of Toronto, University of Michigan, Stanford University, University of Southern California, and University of Oregon, and has been a faculty visitor at Harvard University, Princeton University, University of California at Berkeley, and New York University. Radin's best known scholarly work explores the basis and limits of property rights and contractual obligation. She has also contributed significantly to feminist legal theory, legal and political philosophy, and the evolution of law in the digital world. At the same time, she has continued to perform and study music.

The Brigham–Kanner Property Rights Prize is awarded each Fall by the William & Mary Law School, at the Brigham-Kanner Property Rights Conference. The Conference and Prize were proposed in 2003 by Joseph T. Waldo, a graduate of the Marshall-Wythe School of Law with the support of the then Dean of the Law School, W. Taylor Reveley, III, who would later become president of the college. The Conference and Prize were inaugurated in 2004. The Conference and Prize are named after Toby Prince Brigham and Gideon Kanner for "their contributions to private property rights, their efforts to advance the constitutional protection of property, and their accomplishments in preserving the important role that private property plays in protecting individual and civil rights." Toby Prince Brigham is a founding partner of Brigham Moore in Florida. Gideon Kanner is professor of law emeritus at the Loyola Law School in Los Angeles. The Brigham-Kanner Prize is awarded annually during the Brigham-Kanner Property Rights Conference.

<i>Empress Casino Joliet Corp. v. Giannoulias</i>

Empress Casino Joliet Corporation v. Giannoulias, 231 Ill.2d 62, 896 N.E.2d 277 (2008), is a case from Supreme Court of Illinois in which four casinos challenged a tax imposed by Public Act 94-804. The Act was challenged on the grounds that it was an unconstitutional taking. The Court held categorically that a tax could never be a taking within the meaning of the Fifth Amendment to the Constitution.

Infantilization is the prolonged treatment of one who is not a child, as though they are a child. Studies have shown that an individual, when infantilized, is overwhelmingly likely to feel disrespected. Such individuals may report a sense of transgression akin to dehumanization.

Reparations are broadly understood as compensation given for an abuse or injury. The colloquial meaning of reparations has changed substantively over the last century. In the early 1900s, reparations were interstate exchanges that were punitive mechanisms determined by treaty and paid by the surrendering side of conflict, such as the World War I reparations paid by Germany and its allies. Reparations are now understood as not only war damages but also compensation and other measures provided to victims of severe human rights violations by the parties responsible. The right of the victim of an injury to receive reparations and the duty of the part responsible to provide them has been secured by the United Nations.

Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013), is a United States Supreme Court case in which the Court held that land-use agencies imposing conditions on the issuance of development permits must comply with the "nexus" and "rough proportionality" standards of Nollan v. California Coastal Commission and Dolan v. City of Tigard, even if the condition consists of a requirement to pay money, and even if the permit is denied for failure to agree to the condition. It was the first case in which monetary exactions were found to be unconstitutional conditions.

In the United States, eminent domain is the power of a state or the federal government to take private property for public use while requiring just compensation to be given to the original owner. It can be legislatively delegated by the state to municipalities, government subdivisions, or even to private persons or corporations, when they are authorized to exercise the functions of public character.

Stephen Marcus Engel is an American academic and political scientist who is currently a professor of politics at Bates College in Lewiston, Maine. He is an affiliated scholar with the American Bar Association.

Susanna L. Blumenthal is the William Prosser Professor of Law and Professor of History at the University of Minnesota. She won the Merle Curti Award for her book Law and the Modern Mind.

Dignity restoration is a form of reparations that provides material compensation to dispossessed individuals and communities through processes that affirm their humanity and reinforce their agency. Dignity restoration is most commonly understood as a remedy for a related concept, dignity taking – when a state directly or indirectly destroys or confiscates property rights from owners or occupiers and the intentional or unintentional outcome is dehumanization or infantilization.

<span class="mw-page-title-main">Bernadette Atuahene</span> American property law scholar, professor of law, and author

Bernadette Atuahene is an American professor of law, property law scholar, and author. She is the inaugural James E. Jones Chair at the University of Wisconsin Law School, and previously was a professor at Chicago-Kent College of Law and a research professor for the American Bar Foundation.

References

  1. 1 2 3 4 5 6 Atuahene, Bernadette (2016). "Dignity Takings and Dignity Restoration: Creating a New Theoretical Framework for Understanding Involuntary Property Loss and the Remedies Required". Law & Social Inquiry. 41 (4): 796–823. doi:10.1111/lsi.12249. ISSN   1747-4469. S2CID   151377162.
  2. 1 2 3 4 5 6 Atuahene, Bernadette (2016-10-27). "Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss". Annual Review of Law and Social Science. 12 (1): 174. doi:10.1146/annurev-lawsocsci-110615-084457. ISSN  1550-3585.
  3. ↑ "Center on Socio-Legal Approaches to Property". Chicago-Kent College of Law. 2017-08-03. Archived from the original on 2021-08-31. Retrieved 2021-08-31.
  4. 1 2 3 4 Hulsebosch, Daniel J. (2016). "Exile, Choice, and Loyalism: Taking and Restoring Dignity in the American Revolution". Law & Social Inquiry. 41 (4): 841–865. doi:10.1111/lsi.12215. ISSN   0897-6546. S2CID   148287411.
  5. 1 2 3 Albert, Craig (2017). "No Place to Call Home: The Iraqi Kurds Under the Ba'ath, Saddam Hussein, and ISIS". Chicago-Kent L. Rev. 92: 817.
  6. 1 2 3 4 5 6 Yuille, Lua (2017). "Dignity Takings in Gangland's Suburban Frontier". Chicago-Kent L. Rev. 92: 793.
  7. ↑ "Anti-Gang Injunction | City of Monrovia". cityofmonrovia.org. Retrieved 2021-08-31.
  8. 1 2 3 4 5 Rosado Marzán, César (2018-03-06). "Dignity Takings and Wage Theft". Chicago-Kent Law Review. 92 (3): 1203–1222. ISSN   0009-3599.
  9. 1 2 3 4 5 6 7 Kozerska, Ewa; Stec, Piotr (2018-03-06). "Dignity Takings in Communist Poland: Collectivization and Slave Soldiers". Chicago-Kent Law Review. 92 (3): 1115–1121. ISSN   0009-3599.
  10. 1 2 3 4 5 Pils, Eva (2016). "Resisting Dignity Takings in China". Law & Social Inquiry. 41 (4): 888–916. doi:10.1111/lsi.12203. ISSN   1747-4469. S2CID   146335471.
  11. 1 2 Atuahene, Bernadette (2014). We Want What's Ours: Learning from South Africa's Land Restitution Program. Oxford University Press.
  12. 1 2 Hartog, Hendrik (2016). "Coverture and Dignity: A Comment". Law & Social Inquiry. 41 (4): 833–840. doi:10.1111/lsi.12200. ISSN   0897-6546. S2CID   148226100.
  13. 1 2 Hartog, Hendrik (2016). "Coverture and Dignity: A Comment". Law & Social Inquiry. 41 (4): 835. doi:10.1111/lsi.12200. ISSN  0897-6546.
  14. 1 2 Shaw, Matthew (2018-03-06). "Creating the Urban Educational Desert through School Closures and Dignity Taking". Chicago-Kent Law Review. 92 (3): 1087. ISSN   0009-3599.
  15. 1 2 3 4 Joo, Thomas (2017). "Urban Renewal and Sacramento's Lost Japantown". Chicago-Kent L. Rev. 92 (3): 1005–1031.
  16. 1 2 3 4 5 Ossei-Owusu, Shaun (2018-03-06). "The State Giveth and Taketh Away: Race, Class, and Urban Hospital Closings". Chicago-Kent Law Review. 92 (3): 1037. ISSN   0009-3599.
  17. 1 2 3 4 Engel, Stephen; Lyle, Timothy (2018-03-06). "Fucking With Dignity: Public Sex, Queer Intimate Kinship, and How the AIDS Epidemic Bathhouse Closures Constituted a Dignity Taking". Chicago-Kent Law Review. 92 (3): 961. ISSN   0009-3599.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.