Abstract

Theorists usually explain and evaluate property regimes either through the lens of economics or by conceptions of personhood. This Article argues that the two approaches are intertwined in a way that is usually overlooked. Property law both facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood. It must do both, because human beings are both resources for one another and the persons whose moral importance the legal system seeks to protect. This Article explores how property law has addressed this paradox in the past and how it might in the future. Two bodies of nineteenth-century law highlighted this paradox: the law of labor discipline for slaves in the antebellum South and for free workers in the laissez-faire "Lochner era." The law struggled over how to balance recognition of laborers' bodies as resources with regard for them as legal persons. These jurisprudential problems tracked contemporary debates in political and economic thought about the nature of property in human beings. Both the legal debates and their broader counterparts responded to the underlying problem of designating a boundary between those respects in which people are to be regarded as resources and those in which their personhood comes first. Disputes over this boundary are disputes over both claims on resources and the moral importance of human beings. This analysis illuminates the stakes of two contemporary issues: voluntary peer production in digital media and the entrance of women in developing countries into the paid workforce. Both demonstrate how legal, technological, and social changes in people's status as resources interact with changes in how they do or may value one another. When the resource-regime changes are in the direction of greater reciprocity, they may help to produce a more robust conception of personhood and a more egalitarian and attractive social life.

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