Dignity Takings & Dignity Restoration: New Socio-Legal Contributions to the Takings Literature

Much of the existing literature on the unconsented taking of property focuses on constitutional takings rather than on the complete opposite side of the takings spectrum, where property is taken by individuals or states, no (or nominal) compensation is paid, and dehumanization or infantilization result.  Using the South African case, Atuahene develops two socio-legal concepts—dignity takings and dignity restoration—that allow us to systematically explore the other side of the takings spectrum.  The concept of a dignity takings provides a vocabulary to describe and analyze the takings that poor and vulnerable populations have routinely been subjected to across the globe and in different historical periods; while the concept of dignity restoration provides a lexicon to discuss attendant remedies necessary and, more importantly, a space to re-imagine their purpose and potential.

Law and Social Inquiry (LSI) is a prominent peer-reviewed socio-legal journal.  In the LSI symposium dedicated to “We Want What’s Ours,” several scholars have empirically examined and extended the concepts of dignity takings and dignity restoration in a wide array of cases, including the separation of Hopi people from their sacred lands (Justin Richland, University of Chicago), the requirement that all married women give their property to their husbands under the laws of coverture (Dirk Hartog, Princeton), the dispossession of Arabs in Israel (Alexsander Kedar, Haifa University), the looting, burning and destruction of African-American property during and after the Tulsa race riots (Alfred Brophy, UNC Chapel-Hill), the property taken from the Loyalists after the American Revolution (Daniel Hulsebosch, NYU), the forced evictions in China intended to create space for its rapidly expanding cities (Eva Pils, University of London Kings College), the racially restrictive covenants in the US (Carol Rose, Yale), and the taking of Jewish property in France and the Netherlands during World War II (Wouter Veraart, VU University Amsterdam).   

Symposium Papers

When More than Property Is Lost: The Dignitary Losses and Gains in the Tulsa Riot of 1921

Alfred L. Brophy, PhD
Judge John J. Parker Distinguished Professor of Law
University of North Carolina School of Law, Chapel Hill

Abstract: Bernadette Atuahene’s We Want What’s Ours focuses on the problem of repair for deprivations that go beyond property losses. Her focus is on the dignitary harms to South African people over centuries, such as denial of citizenship, that accompanied the theft of land. I want to focus on one grotesque episode of violence, the Tulsa race riot of 1921, as a way of gauging dignitary harms in a United States context. That riot left thousands homeless and bereft of property; it was also accompanied by detention of the homeless in some cases for weeks until a white person vouched for their character. More importantly many thousands left; they were, in the parlance of the times, run out of town in a “negro drive.” Those citizens lost property, but they also lost their community and they were largely unable to assert their rights in the aftermath of the riot.

My paper briefly retells the story of the riot and the nature of the deprivation of rights of African Americans in Tulsa. Then it turns to the ways that over the stretch of the twentieth century many of those rights were obtained for African Americans through the courts and even in some ways in litigation over the riot in the early twenty-first century. This expands our sense of the range of reparations for past racial crimes, even as it suggests that the harms are greater than we have previously realized.

Marriage is an Honorable Estate

Hendrik Hartog
Department of History, Princeton University

Abstract: This essay will explore whether or not coverture was a dignity taking. The problem of coverture is that while it was structurally a legal relationship founded on inequality and subordination, its actual role within the practices of Anglo-American marriage was always unsettled and uncertain. What does it mean that women, even young women with property, even widows with separate estates, more or less knowingly chose to enter into that relationship. Had they all succumbed to false consciousness? And what forms of compensation are appropriate when such a relationship is undone?

Exile, Voice, and Loyalism: Dignity Takings and the American Revolution

Daniel Hulsebosch
The Charles Seligson Professor of Law
New York University School of Law

Abstract: This paper will explore the concept of dignity takings in the context of the American Revolution. Consistent with Atuahene’s concept, revolutionary antiloyalist legislation eroded the loyalists’ sense of “dignity”—their public status—as full members of the North American political and civil community. The intention of antiloyalism was to mark membership in the new order and place people within or outside it. The first antiloyalist measures were explicitly sorting measures: commissions to inquire into suspected loyalists; patriot oaths; and removal or banishment. The expropriation of loyalist property came later, to finalize exclusion. Unlike Atuahene’s concept, however, most loyalists were able to make a choice about their exclusion and expropriation; the loss of their dignity was voluntary. They were therefore not dehumanized. Yet exclusion, or self-removal, was regarded by some loyalists as an equivocal and (hopefully) temporary status during the war. After the peace, however, exclusion became permanent. Except that in many cases it was not permanent. Many Loyalists could, and did, renounce their loyalism and, through a process of petition, contrition, and transfer of loyalty, became American citizens. Citizenship and all its privileges were gained, and in this sense dignity was restored. Of course the core loyalists – those who held high office under the old regime, high-ranking military officers, and vocal, vitriolic supporters of the empire — were never readmitted and remained the target of animus for decades after 1776. This notion of an irredeemable core, however, helped mark the boundaries of a conditional path to American citizenship that the vast majority of loyalists could travel. The paper will explore the initial exclusion and path to rehabilitation traveled by many loyalists.

Dignity Taking and Dispossession in Israel

Dr. Alexandre (Sandy) Kedar
Professor of Law
Law School, University of Haifa

Abstract: The war that erupted in Palestine in 1948 was the culmination of an ethno-national conflict between Arabs and Jews. The war resulted in the establishment of Israel, the expulsion and flight of hundreds of thousands of Palestinian refugees, the immigration of hundreds of thousands of Jews to Israel, and the reallocation of land formerly held by Arabs to Jewish groups and individuals. Several major legal instruments regulated the appropriation of Palestinian Land after the War. These include the Absentee property legislation according to which all Arabs who left or were expelled from Israel in 1948 were classified by this law as ‘Absentees’ and their property was defined as ‘Absentees’ property’ and nationalized. In addition, a large number of the Arabs who remained in Palestine/Israel after the war, suffered from the same fate. Other substantial tools included the legislation and/or application of taking and confiscation laws such as the British Mandate’s Land (Acquisition for public purpose) Ordinance of 1943 and the Land Acquisition (Validation of Acts and Compensation) Law (1953).

An additional process employed to take land from Palestinians that became Israeli citizens was employed in conjunction with settlement of land title according to the Torrens system. Israel defines several groups such as Bedouins residing in its southern region (the Negev), as trespassers on mewat (dead, empty, distant, unassigned, and uncultivated) state land. This process dispossesses the Bedouins while simultaneously denying this dispossession.

The paper will explore the application of the concept of dignity takings to these processes of land appropriation.

Resisting Dignity Takings in China

Dr. Eva Pils
The Dickson Poon School of Law, King’s College London

Abstract: Land and buildings expropriations and forced evictions have affected many millions of citizens in China. Of these citizens, many have accepted or acquiesced in their fate, but some have protested and resisted. Drawing on case studies, in particular conversations with evictees and lawyers, this paper argues that the takings observed have deprived those affected of their dignity, in addition to dispossessing them of their land or homes, and that monetary compensation, if provided, fails to capture or even results in obscuring the harm done to evictees in such cases. In the cases discussed, takings resulted in infantilising and dehumanising evictees: first, because the property regime left citizens too little say in what happened to their land and homes; second, because of the use or threat of violence to break resistance; and third, because these citizens were denied recognition of what happened to them and in some cases humiliated, persecuted and marginalised in retaliation for their efforts to get justice. This paper argues that while reforms that would adequately address dignity takings are at present unlikely, the occurrence of such takings contributes to the creation of a class of displaced, disaffected and disenfranchised citizens in China.

Talking Jurisdiction, Taking Dignity in Hopi Country

Justin B. Richland, JD, PhD
Associate Professor
Department of Anthropology, University of Chicago

Abstract: In June 2013, a delegation representing the Hopi Tribe’s Cultural Preservation Office met at the request of US Forest Service archaeologists to consult on the “significance” of Hopi ancestral sites within a section of the Tonto National Forest scheduled for sale. As they hiked to the sites, the Hopi learned that their visit was to determine whether the sites met federal criteria necessary to authorize excavation. The Hopi didn’t want to excavate, but the archaeologists insisted this was the only available mode of site protection given the impending sale. This paper examines the discursive dimensions of these engagements, arguing that they constitute the unstable contours of a dispute over competing normative spheres and the norms of dignity they entail. Drawing on theories of jurisdiction as legal language that enacts the lines and limits of normative spheres, and the different ethics implicit in them, I contend that what unfolded on those trails was a negotiation over which normative sphere—Hopi, Federal, legal, scientific, theological—was going to be the one that gave the sites in question their “significance.” In so doing I endeavor to show how jurisdiction can serve as an analytic not only of law’s discursive time-space, but of the time-space of other normative spheres as well, thus revealing the ways in which spheres of dignity unfold in the enactment and elision of different normative orders, through language, and do so in ways that give meaning to sites far beyond the institutional domains we typically associate with such orders.

A Shadow Of Dignity Takings: Racially Restrictive Covenants in the United States

Carol M. RoseCarol M. Rose
Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law
Yale Law School

Abstract: Racially restrictive covenants—subdivision rules or agreements among neighbors that “run with the land” to bar sales or rentals by minority members within the covenanted areas—were widespread and legally enforceable in the United States in the first half of the twentieth century. Strictly speaking, however, these restrictions fell outside the scope of the dignity takings that concern Bernadette Atuahene’s new book. First of all, this is because they originated in the arrangements of private actors rather than the state; second, because those who instituted covenants were not so much aiming at dehumanization as they were simply indifferent to the affront that exclusion implied; and third and most importantly, because restrictive covenants never removed any actual property owned by the excluded minorities, but instead simply denied minorities entrance to areas where white owners predominated.

Still, racial covenants bore a kind of shadowy resemblance to Atuahene’s dignity takings. On the issue of state sponsorship, racial covenants spread their tentacles into state-supported lending institutions as well as the legal system, leading the U.S. Supreme Court to rule in 1948 that the judicial enforcement of these covenants was state action, even if the covenants themselves were not. On the issue of dehumanization, there is certainly evidence that persons excluded by covenants thought them degrading, and more evidence that covenants helped to perpetuate white people’s fears and rejection of residential integration. On the issue of property deprivation, the pervasive use of racial covenants had the effects of seriously narrowing the opportunities of minorities to acquire residential property while adding to the concentration of poverty along racial lines—effects that arguably have continuing repercussions today.

By comparison to the sharply personal dignitary affront accompanying actual physical takings, however, the issue of compensatory action for racial restrictions is extremely fraught, given the uncertainties about who has been affected, and how, and how much. On the other hand, antidiscrimination laws have had both legal and symbolic effects by removing the legal enforceability of covenants. Further symbolic restoration has emerged in the form of new state laws that facilitate and make public the disavowal of past racial covenants by those owning once-covenanted properties.

Dignity Taking and the Restitution of Property Rights in The Netherlands and in France After WWII

s200_wouter.veraartWouter Veraart
Professor of Legal Philosophy
Vrije Universiteit Amsterdam

Abstract: This paper first argues that the deprivation of rights (property rights and other rights) of the Jewish population in the Netherlands and in France during the years of occupation has been a clear example of a dignity taking, since the German authorities intended to hit these people in their capacities as legal subjects, destroying their possibilities to take part in economic and civil life. The second part of the paper deals with the question in what way the restitution of property rights in the immediate post-war years also entailed a restoration of dignity of the original owners. It will be argued that the restoration of their dignity in this first round of restitution was closely linked (and limited) to their renewed recognition as free and equal citizens before an independent court of law. In the late 1990s the restoration of property rights took place on a much more collective and political level. In this second round of restitution, the restoration of dignity was much more connected with an explicit recognition of the particular suffering of the groups of victims involved.