Racially Restrictive Covenants—Were They Dignity Takings?

Racially restrictive covenants—subdivision rules or neighborhood agreements that “run with the land” to bar sales of rentals by minority members—were common and legally enforceable in the United States in the first half of the twentieth century. In spite of their demeaning character, these racial covenants took away opportunities from excluded minorities, rather than things, and thus they amounted to something less than the dramatic “dignity takings” that Bernadette Atuahene (2014) describes in her new book on dignity takings in South Africa. In this article, I explore some significant ways in which racially restrictive covenants differed from dignity takings as Atuahene defines them, as well as the shadowy similarities between racial covenants and Atuahene's dignity takings; I focus here on the dimensions of dehumanization, state involvement, and property takings. I conclude with a discussion of remedies, particularly considering measures that restore dignity through both public policies and private actions.     

Dignity Takings and Dispossession in Israel

This article examines the concept of dignity takings, as developed by Bernadette Atuahene, and its applicability to the Israeli situation, focusing on takings from the Arab‐Palestinian minority in Israel. Although I find dignity takings a valuable concept, as it emphasizes the interconnections between land dispossession and the denial of human dignity, I offer some qualifications and suggestions. I then examine the applicability of the concept to the dispossession of Arabs/Palestinians in Israel through two case studies: one, a close reading of the (in)famous Ikrit villagers' dispossession; the other, an examination of the dispossession of Negev (southern Israel) Bedouin citizens of Israel, which takes place, not unlike terra nullius, simultaneously with a denial of this very taking. The article concludes that with some modifications, the concept of dignity taking applies to the situation of Arab/Palestinian citizens of Israel.     

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

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.     

Public goods, taxes, and takings

Blume, Rubinfeld, and Shapiro [Blume, L., Rubinfeld, D., & Shapiro, P. (1984). The taking of law: When should compensation be paid? Quarterly Journal of Economics, 99, 71–92] first showed that compensation for takings can lead to a moral hazard problem that results in overinvestment in land suitable for public use. To the contrary, this paper shows that when compensation is financed by a proportional property tax, the compensation rule is irrelevant regarding the level of investment landowners make in their property, as well as the amount of land they authorize the government to acquire, both of which will be efficient. Intuitively, landowners recognize the equivalence of taxes and takings in budgetary terms, causing the distortionary effects of compensation and property taxation to cancel each other out through the balanced budget condition.     

When More than Property Is Lost: The Dignity Losses and Restoration of the Tulsa Riot of 1921

Bernadette Atuahene's We Want What's Ours focuses on deprivations that go beyond property losses. Her focus is on the dignity harms to South Africans over centuries, such as denial of citizenship, that accompanied the theft of their land. I focus here on one grotesque episode of violence, the Tulsa race riot of 1921, to gauge dignity takings in a US context. Thousands were, in the parlance of the times, run out of town in a “negro drive.” They lost property, but also their community, and they could not assert their rights after the riot. This article turns to the ways in which African Americans in Oklahoma obtained rights through the courts that should have been protected around the time of the riot. This expands our sense of the range of responses, from apologies and compensation, to additional judicial process and substantive rights, that are needed for past racial crimes.     

Exile,Choice, and Loyalism: Taking and Restoring Dignity in the American Revolution

Taking a cue from Bernadette Atuahene's concept of “dignity takings” and her insight that government expropriation inflicts more than economic injury, this essay analyzes how American revolutionaries defined political membership, penalized and expropriated British loyalists, and then allowed some to join the American polity in the decade after the Revolution. Many recovered their property, professions, and legal privileges. However, because most loyalists could choose to remain loyal or join the Revolution, they did not lose human dignity as Atuahene defines it. Case studies of two reintegrating lawyers, Richard Harison and William Rawle, explore loyalism, the loss of dignities that loyalists suffered, and some paths toward reintegration. Their appointment as federal attorneys helped make the government conversant in the common law, British statutes, and the law of nations, which in turn supported the Federalist goal of reintegrating the United States into the Atlantic World: achieving, in other words, national dignity.     

Two Challenges for Dignity as an Expressive Norm

The concept of dignity figures prominently in legal and moral discussion on such topics as human rights, euthanasia, abortion, and criminal punishment. Yet the notion has been criticized for being indeterminate and either insufficient or redundant (or both) in justifying the kinds of legal and moral rights and views its proponents use it to vindicate. The criticisms have inspired some novel conceptions of dignity. One of them is Tarunabh Khaitan??s proposal that dignity should be understood as an expressive norm. In this article, I assess Khaitan??s suggestion. I maintain that it faces two challenges that its advocates should be able to solve for the proposal to be plausible.     

征地补偿与农民财产权益保护问题研究

通过借鉴国外征收补偿与财产权保护法制的先进经验,结合我国征收补偿与财产权保护法制历史与现状,在学术界已有研究成果的基础上,针对我国征地补偿实践中存在的“有法不依”和“无法可依”现象与我国现行征地补偿与农民财产权益保护法律制度中存在的主要问题,为改革我国征地补偿与农民财产权益保护法律制度提供对策建议：坚持农民财产权益保护、征地和补偿三位一体、从保护农民财产权益角度改革征地补偿法律制度;从实体法与程序法上建构对农民财产权益的制度性保护与个别性保护,以改变征地实践中“有法不依”与“无法可依”现象、确保农民财产权益的存续保护与价值保护。     

试评韩国《集合建筑物法》第三次修订

虽然韩国《民法》中的土地和建筑物属于不同的所有权客体,但两者基本上适用相同的物权变动法理。然而,就部分所有权而言,土地和建筑物之间存在一定差异。土地可仅依当事人的意思及分割登记而实现对其一部分之所有。相比之下,建筑物却不能仅凭当事人的意思对其一部分进行分割和所有。只有当建筑物的相应部分具备独立性时,才能在将该建筑物的一部分登记为独立所有权的客体后,实现受法律保护的区分所有。上述内容所涉及的规定建筑物部分所有权的韩国法律,即为《关于集合建筑物的所有及管理的法律》。但由于韩国法院担心区分所有权的泛滥可能造成不动产所有权秩序的混乱,因此对《集合建筑物法》项下建筑物之一部分的独立性要件采严格审核原则,其结果导致区分所有权不会轻易得到认定。但是,综观区分所有的具体事例,从平衡性和比例性的角度来看,则会产生法院拒绝提供保护是否正确的疑问。正是基于对这种情况提供保护之必要性的考虑,遂有《集合建筑物法》第1条之2的新设,以便将此等情形中的一部分作为法律所保护的对象。但即使在法律修订后,韩国法院基本上仍对区分所有权的认定持消极态度。对此,试将区分所有权的保护问题与因韩国不动产物权变动登记主义造成的事实所有权的保护问题相联系,提出扩大保护之必要。     

农村土地集体所有的困惑与消解

农村土地的使用权最终属于农户或农民个体,个体化的农地使用权应该受到法律尊重与保障。目前,由于农村土地使用权受到人为的法律约束,农地价值遭到极大贬损,亟需改革中国农村不合理的土地管制主义模式,将宪法赋予的集体土地财产权还给农民,并将城市化与征地脱钩。城市化涉及的实质问题是合理的城乡规划与政府审批,而当前中国各地的城乡规划严重缺乏民主参与并带有极大的随意性。要保证规划与审批的合理性,必须通过民主立法和参与程序保障政府规划权的行使符合多数民意,并通过适当的司法审查机制保证规划目的与程序的合法性。     

Criminalizing Behaviour to Protect Human Dignity

The purpose of this article is to discuss the criminalization of conduct based on human dignity arguments. It proposes a modest version of integrating human dignity into discussions about criminalization. After a critical examination of both the notion of ??human dignity as an objective value?? and the assumption that the meaning of human dignity can be explained by referring to Kant??s moral philosophy, human dignity violations are characterized as severe humiliations.     

Withholding Municipal Services to Facilitate Coastal Retreat: Legal Risks and Possibilities

Sea level rise is a growing problem for U.S. local governments. Retreat from threatened coastlines is the most economically and environmentally sound adaptation strategy in some areas. But many citizens will not retreat voluntarily, and localities cannot compel retreat without paying to condemn private land. One solution to this bind is for localities to withdraw certain services from highly threatened areas, forcing residents to either retreat or internalize some costs of remaining. This approach risks the 14th Amendment takings liability, but with community engagement, careful planning, and sound legal strategy, local governments can probably withhold services to facilitate retreat without incurring liability.     

Fossil Fuel Extraction Bans: A Takings Analysis

Hypothetical state or federal bans on the extraction of petroleum and natural gas in the United States, particularly if such prohibitions interrupted active mineral leases, would likely provoke a slew of takings claims. The prevailing legal framework, along with controlling precedent from the Supreme Court and federal Courts of Appeals, suggests that many such takings claims would fail. Certain federal leaseholders and owners of freehold mineral estates, however, would probably have colorable claims. The state and federal governments should therefore consider takings law when formulating any environmental policy that would limit fossil resource extraction.     

Human Dignity as a Form of Life: Notes on Its Foundations and Meaning in Institutional Morality

In normative terms, human dignity usually implies two consequences: (a) human beings cannot be treated in some particular ways due to their condition as humans; and (b) some forms of life do not correspond to the ideal life of our community. This study consists in discussing the meaning of this idea of human dignity in contrast to the concept of humiliation in the context of institutional, i.e. political and legal, rights. Two concepts of human dignity will be discussed. The first absolute/necessary and formal/transcendental concept implies the proposition “because human beings have dignity, the following cluster of rights is valid”. Conversely, the second contingent and material concept corresponds to the thought “for being able to live in dignity, we must respect the following rights”. This paper claims that human dignity should be understood as the right to be protected from humiliation. Humiliation is the situation of incapacity or absence of self-determination.

     

Republican Dignity: The Importance of Taking Offence

This paper analyses the republican notion of non-domination from the viewpoint of individual dignity. It determines the aspect of individual dignity that republicans are concerned with and scrutinises how it is safeguarded by non-domination. I argue that the notion of non-domination as it is formulated by Pettit contains a number of ambiguities that need to be addressed. I discuss these ambiguities and argue for specific solutions that place great importance on a person’s moral beliefs and his status as a moral being amongst others. Furthermore, I argue that the impunity interpretation is to be favoured over the immunity interpretation of non-domination. I show that whilst these solutions accord well with many important republican tenets, they have other implications that contradict known republican positions. In particular, I show there is both room and a need for retributivism within republicanism.     

完善我国土地资本化制度的法律思考

土地资本化就是在土地流转起来后,实现自身增值的过程。为此,应建立相应的法律制度。其一,要转变土地立法属性;其二,要健全土地利用规划;其三,要完善土地评估制度;其四,要平等保护集体土地与国有土地权利;其五,要明确农民主体权利;其六,要建立合理的利益分配格局;其七,要构建农地资本化配套措施,如建立农村土地交易机构和土地金融机构。     

Contentious Politics in the Courthouse: Law as a Tool for Resisting Authoritarian States in the Middle East

Under what conditions will individuals mobilize law to resist states that operate above the law? In authoritarian countries, particularly in the Middle East, law is a weapon the state wields for social control, centralizing power, and legitimation. Authoritarian legal codes are overwhelmingly more deferential to state authority than protective of citizens' rights. Nevertheless, people throughout the Arab world deploy law to contest a broad array of state abuses: land expropriations, unlawful arrests, denials of jobs and welfare, and so on. Using detailed interviews in Jordan and Palestine, I outline a theory of law as a tool for resisting authoritarian state actors. Integrating qualitative insights with survey experiments fielded in Egypt and Jordan, I test this theory and show that aggrieved individuals mobilize law when they expect courts are powerful and attainable allies in contentious politics. My results further demonstrate that judicial independence does not uniformly increase authoritarian publics' willingness to access courts.     

我国土地二元所有制的失衡与立法矫正

由于在立法上对集体土地所有权的权能进行了诸多的限制,致使我国的二元土地所有制模式出现了严重的失衡。这种状况的产生存在价值判断的误区、集体土地所有权主体的缺失及对三农问题缺乏人文关怀等多方面的原因。我国应当坚持权利平等的基本立法思想,对现有的集体土地所有权制度进行充实和完善,强化对集体土地征收征用的立法限制,从而为农民土地权利的保护提供更加有效的制度保障。     

农地权利制度的和谐发展及其司法保障——基于推进农村改革发展的语境

伴随着农村的改革和发展,农村土地上形成了三个方面的重要权利,一是农民集体对土地享有的集体所有权;二是集体经济组织或村委会对土地所拥有的经营管理权或代表行使权;三是农民个人对土地所享有的承包经营权。农地集体所有权是农地经营管理权和承包经营权的权利根源和基础,它影响、决定着经营管理权和承包经营权存续发展的宗旨、方向和内容。而为了推动农村经济社会的全面和谐发展,集体组织的经营管理权可以超越所有权而得以独立地发挥作用。同时,农民个人的承包经营权也具有高度的自主性和绝对性,不受农地集体所有权等的不当干预。在农村的进一步改革发展中,各方面的农地权利需要在相互联系协调中不断完善发展,形成一个严密而和谐的农地权利体系,并建立相应的司法保护体系,从而有效地推进农村的改革发展。