Property As Legal Construct

Property appears an abstract, transcendent, metaphysical concept from afar but on closer inspection reveals itself to be legally constructed. Like ‘person,’ property obtains its philosophical traction from a legal, economic, and social imperative to distribute resources, and thus, wealth and power.  As a canonical legal textbook puts it, the “property system” that results from a particular set of legal arrangements can “order relations”; it can “confer benefits and impose burdens.” The law describes how it is acquired by discovery, capture, creation, being found, adverse possession, and gift. These accommodations of property are so fundamental that property is written into our conceptions of ourselves, in claims that “every man has a property in his own person.”

This taxonomy of ways of acquiring property highlight particular modes of interaction with the world in terms of their property creation properties: ‘this way of interacting with the world counts as an acquisition of property if it meets the requisite legal conditions’; the workings of the common law of property are refinements, over an extended period of time, of these interactions. Law thus provides a specification of the conditions under which humans interact with the world to bring property into being, and how other humans should accordingly interact with a world in which property exists, if they are to avoid particular consequences arising from regulations that preserve the categorization of particular objects as property. (Computer software—in its binary and text forms—had to be legally demarcated as ‘ownable’ and ‘copyrightable’ before it could be termed ‘property’ of any kind.) These consequences could, for instance, interfere with ends and purposes served by the provision of private property. The law of property demarcates a range of possible actions and restrictions on our freedom; various pushings, proddings, and pokings of the world become illicit because they may constitute, for instance, ‘trespass on chattels.’ This categorization of the world into property and not-property acquires ontological significance: property becomes part of our socially constructed reality, reconfigurable if social needs change.

Property is not discovered; it is made, not by the act of mixing labor with supposedly ‘fallow land,’ as Locke would have had it, but by the scaffolding provided by the surrounding legal system. Property is a wholly positivistic legal concept; it makes a supposedly natural right ‘real’ and acquires its ontological weight from law. The legal conceptions of property are indifferent to the kinds of property system they create: different sets of rules create different systems, with different balances of power for owners and others; such allocations of property might lock in and preserve existing power relations.

The best justifications—philosophical ones—for system of property are pragmatic, outcome oriented ones. There is no ‘natural’ or ‘objective’ independent basis upon which to rest the ‘protection’ of property:

The property concept had no determinate meaning or positive content. It was a contingent decision whether the owner of the factory machinery should also own the products of the factory, or whether the owner also should control the management of the plant. [Gary Peller, The Metaphysics of American Law, 73 Cal. L. Rev. 1151 (1985)]


The Cruelest Cut Of All: Punjabis Are Not White

In 1921, a certain John Mohammed Ali became a naturalized citizen of the US. In 1925, this grant of citizenship was contested (United States v. Ali 7 F.2d 728 (1925) by Martin J. Kilsdonk, a United States naturalization examiner. His affidavit:

[A]lleges in substance that said defendant was born in Karpurthala, in the province of Punjab, India, on January 10, 1875, arrived in the United States on June 2, 1900, and has resided in the state of Michigan, in this district, since April 1, 1911; that when the said certificate was issued to him he was not a free white person nor a person of African nativity or descent; that such certificate was illegally procured, within the meaning of section 15 of the Naturalization Act, as decided by the United States Supreme Court in the case of United States v. Bhagat Singh Thind, 261 U. S. 204, 43 S. Ct. 338, 67 L. Ed. 616, on February 19, 1923; and that, therefore, good and sufficient grounds exist for the cancellation of said certificate.

In United States v. Bhagat Singh Thind the Supreme Court had ruled that Thind, an Indian asking for naturalization on the grounds he was a Caucasian, and therefore eligible, was instead ineligible on the grounds he was not ‘white.’ The Supreme Court rejected the ‘scientific’ classifications of ‘race’ that ran together ‘White’ and ‘Caucasian’ and instead relied on the ‘common knowledge’ that Asian Indians, ‘Hindoos’, were not ‘Whites.’

Ali, for his part, had attempted to circumvent the impact of this ruling by claiming that he was of Arabian descent and therefore not Indian, not-not-White:

[H]e is not a “Hindu” of full Indian blood, but is an Arabian of full Arabian blood. While admitting that he is a native of India, as his ancestors for several centuries have also been, he contends that originally his ancestors were Arabians, who invaded the territory now known as India, and settled and remained there, but have been careful not to intermarry with “the native stock of India,” and have “kept their Arabian blood line clear and pure by intermarriage within the family.”

The court rejected this line of reasoning:

I am unable to follow the argument thus sought to be made. No reason has been suggested, and I can discover none, why the mere fact that the early ancestors of the defendant came to India from Arabia, where they had been called Arabians, renders the defendant a white person. His skin is certainly not white, but unmistakably dark, like that of the other members of his race.

The court ruled for the plaintiff, and stripped Ali of his citizenship, concluding:

He is a native of the continent of Asia, specifically of the country of India, and more specifically of the province of Punjab, the place of the nativity of the alien held, in the case of United States v. Bhagat Singh Thind, supra, not to be a white person. Clearly, all of the conclusions of the Supreme Court in that case, as well as the reasons on which they are based, are equally applicable to this defendant.

The court also noted:

He admits that his ancestry, like that of other races residing in India, originally sprang from Caspian Mediterranean stock. It would seem that the most that could be claimed by him, by reason of Arabian ancestry, would be membership in the Caucasian race.

And so we have it folks, the official holding: Punjabis (whether Hindu or Arabian) are not White. We just can’t seem to catch a break.