How the first exclusion foreclosed the other two
A word first, because this one is easy to read backwards. In law, exclusion usually belongs to the owner: the right to exclude others is often called the core of property, the thing that makes something yours. In philosophy it usually names the opposite fate, being shut out of the community of those who count, and slavery is the standard case. Orlando Patterson called it social death, and writers from Hannah Arendt to Charles Mills and Carole Pateman have traced other exclusions on the same pattern. Here the word stays legal but runs the other way: not what an owner may keep others out of, but what is kept out of ownership altogether, what Roman law called res extra commercium, things outside commerce.
An exclusion is the removal of a kind of being from the category of property. There are three. The first is the abolition of slavery: a person cannot be owned. The second, still unfinished, is the end of human rentals: a person cannot be rented. Once owning a person was gone, renting one remained: the employment contract buys not the person but the use of them, by the hour, for a wage that takes title to everything they produce. The third, barely begun, is the end of animals as property: no sentient being can be owned. The first was made by admitting people to the list of who counts, and that one list now stands in the way of the other two: it keeps the animal off, and it treats a rented person’s place on it as settling everything.
Three exclusions, and each a goal in its own right, with its own ground, its own history, its own opponents and its own work still to do. They are not picked at random. Property can hold a subject in two ways, by owning it or by renting its use; it has done both to people and the first to every other animal, and renting an animal presupposes owning it. The three exclusions are those holdings, named one by one. Three is what the test turns up today, not a ceiling on what it can turn up. The first two rest on the fact that no one can hand over their own agency, and the law itself holds a person answerable for what they do. The third rests on agency without that answerability: a being with ends of its own is not raw material, even when it cannot answer for anything.
What joins them is not a single argument but a single wrong, a subject used as an input. None of them stays won by itself, either. Even the first is held rather than settled: the Thirteenth Amendment still permits involuntary servitude as punishment for crime, which is neither ownership nor rental but the state holding a person’s labor without either.
Each exclusion has to be reached in full, then kept. That sounds monumental, but what stands in the way is not nature. Property in a person, or in a sow, is a human construct, a way of seeing handed down rather than a fact found, and what was learned can be unlearned once it is seen for what it is. None of these goals is new. People already believe in them, and are working for them now. What follows examines how the first exclusion was made, through the list of who counts, and why that list has kept the other two from being made.
Chapters
1. The Move
2. The Medallion
3. The List
4. The Frame and the Rule
5. What It Builds Toward
6. Applied to Us