Property law is profoundly unsatisfying. This statement is not meant to suggest that property is wrong or bad. Nor does it mean to take issue with any particular rule of property law, at least in a way that is not already reflected in the rich property literature. Rather, property law is unsatisfying because, often, its settlements and compromises seem wanting and iniquitous, even while envisioned alternatives seem untenable and unfair. Indeed, the standard first-year Property syllabus reads like a compendium of the Catch-22.
The law, serving as a codification of the commitments and values of “White space,” often treats love and justice as separable and separate values, experiences, and institutions. Black love, on the contrary, is bound up with and, even, identified with justice. This inextricability is painted masterfully in the interstices of Zora Neale Hurston's, Their Eyes Were Watching God. The story, widely framed as a woman's journey to autonomy and love, is just as much the story of her search for justice. This article uses Hurston's narrative of love and justice, Paulo Freire's critical pedagogy of humanization, and law to illustrate the implications of Black love for engaging legal justice in White space. It concludes that liberation for Black people demands humanizing legal praxis.
Racial capitalism provides a baseline analysis of how capitalist systems function inextricably from race. We contribute to the development of the concept of racial capitalism by arguing that as property is the lingua franca of capitalism, racialized, gendered property is the institution that undergirds racial capitalism. Even if we could eliminate the racial and gender bias of the capitalist system, the very disposition of the institution of property itself is so inherently racialized and gendered through the human interactions by which it is coconstituted that the resultant property-based capitalism is also raced and gendered. Those observations are the backdrop for a more probing set of arguments about the role of gender and race in shaping the property narrative, which we explore in a series of examples that reveal the inherently racialized and gendered nature of property in the extant capitalist system. Our engagement opens space in this era of racial and gender reckoning to call upon property to become a site of advancing new or contested social values of justice or equality for communities that exist at the margins of society.
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