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The Properties of Property

Updated: Dec 24, 2020

Note: Let me just be real with y'all. This is not my most exciting nor most favorite post. But I think my takes here are interesting, and I really just look forward to looking back on these years from now and reminiscing on the times where I wrote like this [see "The Truth of Namibia" for similar reasons]


THE PROPERTIES OF PROPERTY:

An Analysis of the Definitions of Property From Republic of Argentina v. NML Capital, Ltd. (2014)

In the most widely used law dictionary in America, Black’s Law Dictionary, there is no definition for the term “property”, but there is for “property law”. This observation solidifies the idea that “property” is something that can be legislated, argued, and interpreted, but leaves us in the dark about its essential qualities. Understanding the definition of property and narrowing down its essential qualities has been the thought process of theorists and philosophers for centuries. From Locke to Hegel, many philosophers have endeavored to conceive their own viewpoints around “property”. Yet when put in conversation with each other, it is easy to map fundamental contradictions with each other’s views. However, outside of this discourse, the “property” still stands and has major consequences. As Americans, we really want for there to be an essential quality to property. It is what underlies the growth of the country. It is what feeds the national narrative that there is something that is to be owned, either collectively or individually. We revolve our culture around finding this something. Property underlies the world’s understanding of the body, livelihood, and most importantly, ownership. Even in modern-day, many conceptions of property remain dynamic, ever-changing, and live in the abstract waiting to be further explored. This became apparent in the 2014 legal battle between a hedge fund NML Capital, Ltd and the government of Argentina. The 2014 Supreme Court case Republic of Argentina v. NML Capital, Ltd.is noted for its ruling regarding sovereign immunity, yet the facts of the case speak to a relationship even more complex than just a legal doctrine that frees a state from committing legal wrongdoings. In this case, we are presented with the country of Argentina struggling to pay back sovereign bonds and the subsequent interest it accrued to what has been dubbed a “vulture fund”. Solely drawing from the case Republic of Argentina v. NML Capital, Ltd. (including its procedural history), I will argue how this case exposes three main properties of “property”. First, “property” is only as good as its market, second, that it must be backed by a power structure, and third, it must have derivatives. To do this, I will utilize a close analysis of the case as well as draw from scholarly reviews of its implications. I will overall, make the argument that a property is made up of these three qualities and that these properties underly the legitimacy of the legal principles used in the NML Capital case by the Supreme Court and the Court of Appea