Pragmatism and Postcolonialism: Protecting Non-Owners in Property Law

Property law has a particular problem, with non-owners. Although property law clearly identifies the rights of property "owners, " the rights of "non-owners" are vague. This problem, is significant because modern property law is often called upon to balance the rights and needs of owners and non-owners. Property law cannot adequately perform this function without clearly establishing both sets of rights. The New Jersey Supreme Court case State v. Shack exemplifies this problem because it purports to be a case about protecting non-owners. This Article examines both the case and the texts upon which the court relied to argue that the New Jersey Supreme Court could not adequately protect the non-owners in the case because the court could not understand their rights. Instead, in its effort to evince a set of rights powerful enough to overcome the property owner's rights, the court eliminated the voices of the migrant workers it claimed to protect.This Article draws upon postcolonialist theory both in examining the problem and in prescribing a solution. In its prescription, the Article proposes a pragmatic form of postcolonialist inquiry as a theoretical foundation for protecting non-owners in property law. Relying on the less iconic case of Hilder v. St. Peter, this Article proposes three devices within the common law tradition that are well suited to the task of representing and protecting non- owners. As Hilder demonstrates, legal decision-makers can more fully consider and protect the rights and needs of non-owners through the pragmatic use of storytelling, the personalization of claims, and the precise matching of remedies to harms and needs.INTRODUCTIONIn 1971, the Newjersey Supreme Court enhanced its well-deserved reputation as a progressive and "activist" court1 with its holding in the famous property case of State v. Shack.* 2 In that case, the court held that a legal services attorney and a field worker for a non-profit organization providing services to migrant workers were not guilty of criminal trespass.3 The defendants were charged with criminal trespass after they refused to leave the property of a landowner who employed and housed migrant workers on his large farm.4 In the course of creating a broad exception from the venerable property right to exclude, the court stated: "Property rights serve human values. They are recognized to that end, and are limited by it."5 With this statement, the court reaffirmed its commitment to making important decisions on the basis of rights and needs in context, even if doing so meant abandoning the comfort and stability of precedent.6 In Shack, the rights at issue were the civil and political rights of non-owners of property, namely the migrant workers to whom the two defendants were attempting to provide legal and other important services.7 For many property scholars, the decision is a thrilling example of a legal decision-maker working hard to strike a balance between property and other rights upon recognizing the extraordinary distributive effects of exclusionary rights in property.8 Shack stands out in these respects. It is justifiably a famous case in the property canon.But while Shack gives property lawyers much to admire, it also exemplifies a core problem in property law. Behind the grandeur of the statement that property serves human values lies the question of whose values property serves, and moreover, of who determines what those values are. In Shack, the court claimed that it was upholding the rights of a particular group of unprivileged individuals,9 and many legal scholars agree.10 But both as a technical matter, because no migrant workers were parties to the case,11 and more importantly as an analytical matter, the opinion of the Newjersey Supreme Court prevented those individuals from speaking. The court's inattention to the individual voices of the migrant workers in the case should lead readers to ask how much those workers really mattered to the decision. …