Dignity Takings and Dignity Restoration: Creating a New Theoretical Framework for Understanding Involuntary Property Loss and the Remedies Required

Abstract

In We Want What's Ours: Learning from South Africa's Land Restitution Program, I introduced the concept of “dignity takings,” which I defined as property confiscation that involves the dehumanization or infantilization of the dispossessed. I argued that the appropriate remedy for a dignity taking is “dignity restoration”: material compensation to dispossessed populations through processes that affirm their humanity and reinforce their agency. For this symposium, contributors were invited to examine these paired concepts through case studies beyond the South African context. This introductory essay summarizes the central arguments of We Want What's Ours and considers how the symposium contributions confirm, extend, or revise the concepts of dignity takings and dignity restoration.

Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss

“…We Want What's Ours: Learning from South Africa's Land Restitution Program (Atuahene 2014b), I use the South African case to empirically develop the concept of a dignity taking, which I define as when a state directly or indirectly destroys property or confiscates various property rights from owners or occupiers and the intentional or unintentional outcome is dehumanization or infantilization (Atuahene 2014a(Atuahene , 2016. To qualify as a dignity taking, there must be involuntary property loss as well as evidence of the intentional or unintentional dehumanization (the failure to recognize an individual's or group's humanity) or infantilization (the restriction of an individual's or group's autonomy based on the failure to recognize and respect their full capacity to reason) of dispossessed or displaced individuals or groups, which scholars can prove through top-down or bottom-up empirical investigation.…”

“…In a Law & Social Inquiry symposium, several scholars from various disciplines have moved beyond the South African case to empirically examine and extend the concepts using a wide array of other cases, including the separation of Hopi people from their sacred lands (Richland 2016); the dispossession and displacement of Israel's Arab citizens (Kedar 2016); the looting, burning, and destruction of African American property during and after the Tulsa race riots (Brophy 2016); the taking of Jewish property in France and the Netherlands during World War II (Veraart 2016); the forced evictions in China intended to create space for its rapidly expanding cities (Pils 2016); the racially restrictive covenants in the United States (Rose 2016); the property taken from the loyalists after the American Revolution (Hulsebosch 2016); and the requirement that all married women give their property to their husbands under the laws of coverture (Hartog 2016). Through rigorous empirical work, these scholars have greatly improved and clarified the dignity takings and dignity restoration frameworks (Atuahene 2016). The case studies on takings from Arabs in Israel and the Hopi people in the United States underscore the origins of many dignity takings, which is the subjective determination of what constitutes property and who owns it (Kedar 2016, Richland 2016.…”

“…Consequently, as highlighted by the case of racially restrictive covenants (Rose 2016), dignity takings apply only to the confiscation of property and not to the taking of an opportunity to acquire property. Also, from the case study on coverture-which is a legal doctrine dismantled during the twentieth century that prohibited a wife from owning property or entering into contracts in her own name-we come to understand that institutions like marriage can be simultaneously dignity degrading and dignity enhancing (Atuahene 2016, Hartog 2016. Without close examination, a dignity taking can quietly lurk behind this duality, hiding in plain sight.…”

'Community Dignity Takings': Dehumanization and Infantilization of Communities Resulting from the War on Drugs

“…11 This Article takes the novel approach of examining the deleterious effects of criminal justice policies on communities as a "dignity taking"-a taking that "occurs when a state directly or indirectly destroys or confiscates property rights from owners or occupiers and the intentional or unintentional outcome is dehumanization or infantilization." 12 In her seminal work on "dignity takings," Bernadette Atuahene noted that "individuals and communities are deprived of dignity when subject to dehumanization, infantilization, or community destruction;" 13 "community destruction" occurs when "community members are dehumanized or infantilized, involuntarily uprooted, and deprived of the social and emotional ties that define and sustain them." 14 Thus, I argue that the effects of collateral consequences on individual community members collectively amount to a "community dignity taking"-the direct result of "community destruction," as described by Atuahene. Part II of this Article discusses the genesis of the "dignity taking" analysis (including that of the "community dignity taking") and its development and expansion as a sociolegal concept.…”

Property’s Relation to Human Rights

“…But where resources are even somewhat scarce, the institution of property plays the very important role of deflecting conflict, instead encouraging forbearance and negotiation. Beyond that, property can serve a variety of important and to some degree overlapping functions: safeguarding a zone of autonomy for individuals (Claeys 2006:722); protecting their dignity and the signals of respect that they gain from others (Atuahene 2016); creating a basis for undertaking projects in the world (Radin 1982); diffusing political authority among many actors and thus deflecting concentration of power (Friedman 1962:7-21); maintaining individuals' independence and shielding them from subservience to others (Craig-Taylor 1998). Perhaps best known, however, is the economic role of property.…”