ABSTRACT
It was international news when the New Zealand Parliament, in a 2017 settlement of Māori land claims, declared that the Whanganui River ‘is a legal person and has all the rights, powers, duties, and liabilities of a legal person’. Such grants of non-human personhood seem peculiar. They contradict a conventional understanding that Western legal doctrine inscribes a sharp boundary between human owners of property and objects of that ownership, and only the owners have power. That anthropocentric view is part of what has made AngloAmerican property law an instrument of violent dispossession and extraction. But it is not the only way to read property doctrine. This article uses mainstream current and historical legal sources – recent US case law and Blackstone’s Commentaries – to tell a different story, one in which the line between persons and property has always been vanishingly thin.
Drawing on philosophical critiques of modern Western anthropocentrism and the work of Indigenous scholars, the article reveals how everyday property doctrines can accommodate a more holistic worldview. Blackstone is associated with an extreme vision of private property as exclusive individual human control over an objectified world. But viewing his canonical work through a less dualistic lens, the human subjects he describes can appear less potent than the landscape they inhabit. Blackstone’s ‘permanent and immoveable’ land is not just a physical object, and real property combines material and ‘incorporeal’ entities that both restrict and enable owners’ actions. This interactive more-than-human agency persists in land today, for example, in the counterintuitive doctrine of adverse possession and through servitudes that ‘run with the land’ to shape human conduct.
This article suggests that traditional Western property law can be reimagined to share legal personhood – and power. Recognizing how longstanding property doctrines support more-than-human personhood matters for two main reasons: (1) It grounds novel grants of non-human personhood in a durable, widely accepted legal framework; and (2) it undermines the hierarchical anthropocentric version of property law that has facilitated and justified Western domination of both non-Western humans and non-human others. The goal is to envision a legal system that will help bring about more sustainable, morally responsible relationships among humans and between humans and others.
Allen, Jessie, Property and More-than-Human Personhood (August 29, 2023), University of Pittsburgh Legal Studies Research Paper No 2023-34.
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