Article by Jeremy A. Blumenthal
“The law can ask no better justification than the deepest instincts of man.” Although Justice Holmes's words apply to all of legal psychology, they were written in the context of property law. In that context, then, what is the relationship between legal theory and human instinct, human intuitions, human thought, feeling, behavior, attitudes—in short, human psychology? What should it be? In this Article, framed as a general introduction to the topic and to the articles that follow, I explore the relationship between property law and psychological theory in a number of ways. The goal is to help the law better understand researchers' claim that to study property is to study “what it means to be human.”
Traditionally, that relationship is recognized as providing a framework for different theories of ownership and property acquisition, as well as for justifying particular doctrines of property law. A fundamental principle of property law, for instance, is Locke's labor theory, which rests on the notion that property rights at bottom stem from the “ownership” of one's body and the fruits of its labor. Property scholars are of course also familiar with Margaret Radin's theory of property as personhood, where ownership of personal property is in fact constitutive of an individual's identity. Although derived largely from Hegelian philosophy, Radin's theory is fundamentally psychological; her underlying notion is, in part, that “to be a person—an individual needs some control over resources in the external environment.” Her approach in fact reflects the psychologist/philosopher William James's noted saying, “between what a man calls me and what he simply calls mine the line is difficult to draw.” Relatedly, sociologist Erving Goffman discussed the importance to asylum inmates of maintaining a sense of “self” by securing a private place to store their belongings, as well as of possessing and displaying—as an indicium of social status—a portable “stash” of property that they carried with them. And, again, Holmes's classic statement about the powerful connection to one's property was geared toward justifying the otherwise counterintuitive doctrine of adverse possession.
And yet, in large part, despite this explicit framing of property principles in psychological terms, empirical psychological research has been little recognized or applied in property law. Such omission is unfortunate, because property law—like all law—is based on assumptions about human behavior and cognition and emotion, assumptions that are empirically tractable. Empirical data would be useful in evaluating these assumptions and in contributing to discourse about theory and doctrine. Accordingly, my primary goals here are to draw attention to relevant existing data—though not much exist overall—and to identify promising avenues of future empirical research in the property context. Although this runs the risk of simply generating “laundry lists,” taking this approach may encourage communication between property scholars and empirical researchers, helping to develop specific interdisciplinary research agendas. Each of these areas of research, of course, does not reach the normative questions involved, and for each topic I identify, I emphasize that further policy discussion is necessary.
About the Author
Jeremy A. Blumenthal. A.B., A.M., Ph.D. (Social Psychology), Harvard University; J.D., University of Pennsylvania Law School.
Citation
83 Tul. L. Rev. 609 (2009)