Jessie Allen, School of Law, University of Pittsburgh

Book the Second, Chapter the Thirteenth.  Of the TITLE to THINGS REAL, in General.

This chapter is about feelings and actions and how one leads to the other.  Of course Blackstone doesn’t talk about feelings or actions per se.  His discussion of title, or, ownership, is couched in terms of rights and possession. But I don’t think it is too much of a stretch to see the question of what it takes for someone to ‘have title to,’ or, own, property, as what it takes for us to feel right about someone’s act of occupying land.  The remarkable thing is that Blackstone refuses to choose between the two, or even, really, to prioritize one over the other.  He insists that both rights and actual possession are necessary to create legal ownership – and that the causal arrow runs both ways.  Property rights may be actualized in possession, but even wrongful possession can transform into ownership.

At first it looks like rights will be more important. (In a volume titled “The Rights of Things” this seems unsurprising. ) The chapter sets up a series of “stages or degrees” needed for ownership.  II, 195.  It begins with “naked possession, or actual occupation” which Blackstone describes as “the lowest and most imperfect degree of title.”  This is followed by “the right of possession.”  II, 196.  But then, as we move away from possession all the way to rights, the hierarchy dissolves.   Instead of a higher degree of ownership, we find the “mere right” of property, a situation in which “the estate of the owner is . . . said to be totally devested, and put to a right.” II, 197.   It turns out both rights and possession are necessary to form “a complete title to lands.”  When the right of possession is joined with the right of property and “to this double right the actual possession is also united . . . then and then only, is the title completely legal.”  II, 199 (my italics).

Blackstone explains that a rightful owner divested of his land may win it back by bringing a timely legal action against the interloper and making use of “a variety of legal remedies.”  II, 196.  So far so good.  This process matches our conventional picture of how rightful ownership is supposed to work.  Rights trump possession.  The person with legal rights proceeds to enforce those rights in order to make social reality conform more closely to the legal ideal.  But it seems the transformation works in reverse as well – reality can reform rights. If the person with the right to the land doesn’t take possession, and doesn’t bring a lawsuit, “his adversary may imperceptibly gain an actual right of possession.”  II, 197.  Eventually,  possession by someone with no right at all to the land “may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title.”  II, 196.  What’s more, it seems that the act of taking possession is not just an alternative route to ownership, but an essential key:  “without such actual possession no title can be completely good.”  II, 196.

Something very strange is going on here.  I know we say that possession is nine-tenths of the law, but isn’t that supposed to be an ironic statement about the way law caves to power?  After all, the very notion of property rights seems to take shape in opposition to possession.  Anyone can possess something by just grabbing it, or, in the case of a house, by just moving in.  Legal ownership must be based on something different, or else what distinguishes law from force?  So why should “actual” possession be a significant, let alone a necessary (“then and then only”), ingredient of legal ownership?

My discomfort with the process of turning possession into ownership reminds me of another dichotomy – yes, feelings and actions. In what I think of as the standard, modern Western view, feelings motivate actions and actions come from feelings — not vice versa.  Action without feeling is considered insincere — suspect, deceptive, not real. In a similar mode, I think, we generally think of rights as prior to acts and structures that express or instantiate those rights.  Blackstone’s description, note, doesn’t prioritize possession over rights.  Instead in this scheme the two are equal – and the goal is to get them together.  Likewise, no one would say that feeling is more important than action (and, to the contrary, we might say that deeds matter most).  Nevertheless, feelings are necessary, it seems, to fully validate actions – to make them authentic.

When I was a young actress, studying in New York City in the 1980s, there was quite a premium placed on authentic feeling on stage.  I thought, and I think it is safe to say that most of my fellow acting students agreed, that the only way to produce really “believable” performances of dramatic scenes was for the actors to experience certain emotions that would then naturally be expressed.  In other words, in order to play a scene in which a character was supposed to get really mad, you had to somehow first produce a feeling of outrage, which would then lead you to yell and throw things.  The most paradigmatic, mysterious and prized example of this feeling-action continuum was the ability to summon authentic tears.  This is a (vastly oversimplified) version of the “method” acting approach that was, and I believe still is, ascendant in mainstream American theater, but it is by no means the only way to go. My friend Christine, who was a great acting teacher, used to tell the story of the summer stock role she had early in her career that called for her to break down in tears at the climax of the second act.  Concerned about her ability to reach the necessary emotional peak on cue night after night, she sought advice from a company veteran.  “Sweetheart,” he said, “just put your hands over your face and shake your shoulders.”

Now, Christine told this story to get the laugh, but also to challenge the idea that actors needed to feel anything in particular in order to produce great performances. Of course burying your face in your hands and shaking could look ridiculous onstage.  But if one’s technique were excellent enough, presumably the audience would not be able to tell the difference between real tears and a well crafted simulation. For that matter, what did it even mean to talk about “real” tears deliberately manufactured for a public  performance of a fictional scene?  Under the circumstances, any feeling you ginned up would be the product of your imagination, not a response to real events.  Why should imagination flow only one way from feeling to action?  Why not free actors to meet the creative needs of the drama from the outside in, as it were.  Finally, Christine argued, if you really put yourself to the physicalization of crying – not just the gestures but all the sounds — and kept it up for some time, you would find that it is almost impossible not to begin to feel something like sadness, or even grief.  Eventually actions produce feelings as surely as feelings drive actions.

I have to say that at the time I did not buy it.  It just didn’t seem possible to me that a show of emotion produced technically could possibly be as compelling as tears that came as the natural expression of feeling.  Somehow my performance would not be as good – or as legitimate — if I produced it in this deliberate way, by acting as if I had a feeling I did not really feel.  This now seems silly to me – and romantic in a rather uninteresting way.   But although I suspect my discomfort with the possession to rights approach to property is in some way similar, it is harder to shake.

Certainly when the context shifts from theater to law something more, or at least something different, is at stake. For one thing, legal rights raise a problem of conflicting claims not present in a histrionic setting.  We are not just concerned about whether property authentically belongs to the one who possesses it, but that it might rightfully belong to someone else.  The problem is not just that the act of possession without rights seems illegitimate, but that it could actually prevent possession by the person who has a right of ownership.   On the other hand, if the outside-in, shake-your-shoulders approach to acting is potentially liberating and empowering on stage, so is the possession-to-rights road to ownership in real life.   Flipping the order of rights-possession makes property available to individuals and groups who have no access through the traditional progression.  If property rights are otherwise a matter of heredity and/or economic power, allowing someone to acquire legal ownership of land just by acting as if she owns the place gives the law of property democratizing potential.

This might be the place to reflect that the very notion of possession is quite problematic – with or without attendant rights – especially when it comes to “real” property, that is, land.  If possession means literal, exclusive physical control, what can it mean, really, to possess land?   Obviously, you can put up some fences.  That might keep most or at least some people out.  But really?  Only the ones who recognize the fences as a sign of exclusion and choose to comply.  How does a fence become not just a physical obstacle, but a sign of the force and exclusivity – and perhaps the legitimacy — of the fence builder’s control?  A fascinating article by Nicholas Blomley suggests that the process may have more to do with a summer stock scene than you might otherwise imagine.  Blomley offers a way to think of fences as a “performance” of property. As performance, “Property claims are continuously remade and re-enacted, and, as such, open to surprise and complexity, yet also capable of fixity and sedimentation.”  A fence neither simply bars physical access nor purely represents ownership, but acts in combination with other creative and conventional actions, words, and objects to bring property into being.

Instead of thinking of rights like feelings that motivate actions, think of them as part of that constellation of words and (imaginary objects) that, combined with possessive actions like fence building, complete the performance of property.  Indeed, the very fact that land cannot be possessed by individual humans in a physical, personal containment sort of way may be one reason the notion of rights developed.  In a world that conceives of property as a matter of private ownership, it is actually very, very hard to see how land could come to be owned (as opposed to just occupied).  One would need, it seems, some sort of conceptual, or, imaginary, connection between a person and the land to stand in for personal physical containment. Rights would be that imaginary connection.

If you can’t grab the land itself and hold onto it, you can be a “rights holder.”  As imaginary objects, rights can spring into being in any shape we choose and be held and transferred through any sort of conventionally agreed upon process. But of course, as Blackstone’s scheme points out, rights not actualized in tangible physical occupation are fictions – not just imaginary but invisible –without any real effect.  In its requirement of actual physical possession, then, Blackstone’s understanding of legal ownership acknowledges the fictitious, made up nature of rights.  And in allowing ownership to begin not just from rights, but from physical occupation, Blackstone, like the summer stock veteran, recognizes that if you are going to perform some new state of affairs into being, you are going to have to start somewhere.  Sometimes, you just have to put your face in your hands and shake your shoulders.

Originally published August 22, 2013.