A Moveable Feast

Jessie Allen, School of Law, University of Pittsburgh

Book the Second.  Chapter the twenty-fourth.  Of Things Personal.

Property is comedy in the Commentaries: it always ends well.  But along the way there are problems and sometimes sadness and even terror, and beneath it all a constant reckoning with mortality.  This chapter is the hinge between Blackstone’s accounts of real and personal property. Real property is based in things that, as Blackstone puts it, are “imagined to be lasting.” II, 384. In contrast, personal property is a will o’ the wisp, comprising “all sorts of things moveable, which may attend a man’s person wherever he goes.” Id. Permanence and immobility, then, are the crucial qualities that make things real, and the kicker is that in this scheme land and houses are more resourceful, more trustworthy, more real than the people who own them.

Some of that invested reality rubs off. The OED eventually gets around to defining “estate” as “a landed property” and noting that this is the most common meaning of the word today, but before that there are twelve other definitions all of which involve a “condition of existence,” rank, social status, standing or occupation. Once upon a time “real estate” meant a person’s condition and standing in the world.  The real deal.  Objects of personal property, on the other hand, “being also of a perishable quality” (like their owners), “are not esteemed of so high a nature, nor paid so much regard to by the law.”  II, 384. In between real estate and things personal, the person herself appears, the legal subject, framed in relation to her property.

Cultural analyses of property law today tend to focus on the dichotomy of personhood and property, and the mediating work these mutually defining concepts do.  Persons are legal subjects who have rights and standing to enforce those rights, including rights to own property, which is therefore by definition a class of rightless objects. Moving something or someone in or out of one of these categories has consequences. Classifying slaves as property, to name the historically most infamous and consequential example, transformed the self-evident truth of their humanity into their captors’ “unalienable rights” to rape and kill them. Sometimes the person/property distinction blurs.  These days non-human animals are crossing and complicating that boundary, so that a judge’s decision about the fate of a divorcing couple’s dog might involve some consideration of the animal’s best interests.  Generally, however, in this dichotomous scheme it is incoherent to speak of the objects of property as having rights; property is generated and controlled by its personified owners.

The scheme Blackstone is working with here looks different. People are in the middle, not on the top.  It’s a spectrum that moves from “things that are in their nature more permanent and immoveable” through the here-today-gone-tomorrow owners of those interests, to the even more ephemeral “things moveable.” II, 384. At one end, real estate is the literal horizon against which you appear and are measured; at the other, personal property comes and goes–as do you. Looking at this picture, which goes back to medieval times, you might see a rather desperate attempt to split the human condition in two.  Our embodied vulnerability is extracted and shoved into all the stuff we walk around with and the social transcendence of individual mortality is projected onto a topographical and architectural world to which we lay claim.

Looking out my window in twenty-first century Pittsburgh, the houses with their shingled roofs and vinyl siding appear at best weakly permanent, too fragile to “answer to posterity the trouble and pains that their ancestors employed about them.”  II, 384. But I’m thinking that “owning your own home” is still a sign of stable character, and transience a sign of vulnerability and subversion:  Renters.  Drifters.  Homeless people. Immigrants.  Papa was a rolling stone.  And I’m thinking how hard it is to know whether what you see is anything like what is really there.

“’When it hit’, he said of the first plane, ‘the first thing you saw was this big crystal burst; before you saw any smoke, before you saw any flame, the sky was just filled with crystal glass’.”

As it happened, when the planes hit I was underground. In fact, the C Train that was carrying me from Brooklyn to my office in downtown Manhattan ran through the World Trade Center station and stopped there shortly after the attack. I know this because when I emerged from the subway two stops uptown there was a small knot of people on the corner of Spring Street and Sixth Avenue, looking up, and joining them I saw smoke billowing from the towers. Later, watching television in the office kitchen I saw the first tower fall. I remember the development director gasping and crying out. This must have been only about a half hour after I arrived, because the South Tower collapsed around 10 am, and the second tower came down half an hour later. Even knowing this, however, I still “remember” watching the towers burn for what seems like hours.

I had never seen or heard anything about that initial crystal burst until a few days ago when I read the above quote in the obituary of Jack Whitten, a painter who apparently watched the whole thing unfold from his studio on Lispenard Street. It sent me back to videos, including one that purports to be the only existing footage of the first plane hitting the North Tower. I didn’t see the crystal burst, but I did see a small glittering shower of something fall from the building pretty much on impact. In another video, when the second tower is hit you can see an even larger spread, maybe something like a burst, of what looks like rectangular pieces of something shiny.  These are identified as “aluminum cladding” in a third video entitled “CNN lied about 9/11: Believe Your Own Eyes,” whose main thesis is that the towers were destroyed by bombs and all the reports and videos of planes are either mistaken or deliberate lies. I remain unconvinced by this argument, but still I choose to believe the video’s explanation of the shiny showers as the buildings shedding their metallic surface.  So is this the crystal burst Whitten saw?  Probably. Maybe.  In any case, the obit provides a hint about why he would have focused on this relatively unremarked aspect of the spectacle. I had never seen Jack Whitten’s work before, but in the obit there are several photos of large abstract paintings that have a kind of mosaic surface made of, yes, shiny rectangles.

It seems that to see something, we have to know how to see it. And knowing how to see something seems to involve having a name for it, or at least a category for it to belong to. The stuff you are looking at may be real but the categories tend to be personal. If you make images that break the world up into shiny bits and put them back together, when the world turns upside down you are poised to see a burst of shiny bits when everybody else just sees smoke.  This of course troubles the relationship between the real and the personal in ways that have nothing to do with property rights, because it suggests that we never have access to a shared objectively real world, but are each stuck with our personal, moveable views of reality.

And it comes up in so many, many ways these days. There’s the whole “fake news” trope and the ubiquitous ideological correlations with opposing views of urgent highly consequential phenomena like climate change.  And there is the way we, most of us, fail to see the obviously, brutally real things that are right in front of us. The stories of the gymnasts sexually abused by the team doctor with the girls’ parents in the room.  It seems unbelievable, but then you think, how long have I been watching those girls on television, their bodies contorted into fantastic bends, or prancing across the mat, toes pointed, ponytails swinging, eyes focused and mascaraed? Haven’t I been watching a kind of extreme objectification, if not abuse, all this time? Plucked from the identifying context of houses, schools, churches, streets the leotarded girls on the screen edge closer to becoming “moveables” themselves, shift along the continuum from legal subjects toward perishable objects with which other subjects are outfitted and accompanied, used to enhance all of the rest of our personhood.

What’s incredible, really, is how quickly that line between personhood and personal property gets crossed, and how confusing it is when things travel back and forth across it.  The other night at dinner my husband Doug turned to our teenage daughter and said, “tell me one thing that happened at school today that was not awesome.”  “Well,” she said, “our fish died.” The fish was in the school music room, which is filled with all kinds of “things personal,” not only trombones and tambourines, but coffee makers, slinkies and light sabers, and now, apparently, a fish tank. “And the really sad thing,” my daughter continued, “is that he was really stressed before he died.”  “Oh,” I said, “that is sad,” and before I could stop myself, my eyes started to fill, and I started crying.  Now, I am known in my family as a crybaby – I’ve cried at TV commercials — but a stressed guppy is a low threshold even for me. Still I couldn’t stop thinking about that poor little fish, so worried and helpless at the end of his short life. To their credit, my husband and daughter didn’t immediately burst out laughing. For a moment we all just sat there, the two of them watching as I struggled to pull myself out of my empathic interspecies tailspin. Then my daughter sighed and put down her fork. “We’re eating fish,” she observed.

Maybe the problematic epistemology of things real and personal does have something to do with the project of property rights.  The title of the volume in which this first chapter on personal property appears, is “Of the Rights of Things.”  It is usual to explain, as I think did in my first post on this volume, that Blackstone doesn’t mean that inanimate things have rights, but rather that the book is about people’s rights to own things, aka property rights.  But it turns out that this is only half true. There’s nothing here about rights for robots or the idea of endowing rivers and trees with rights to prevent their destruction (both of which are live legal questions today).  But the idea that “rights of things” only means people’s rights to things misses an important point. In the scheme Blackstone is expounding things are a source of rights for the people who own them. In the common law imagining, rights are mined, brought up out of our surroundings like gold or lead or oxygen.  So, yes, of course people create property and control it, but at the same time, the immobility and permanence of the land and buildings from which real property rights are imagined to flow, cascade, burst forth, gives those rights a power and stamina that their creators lack, sharing as we all do, the “precarious duration of things personal.” II, 388.

A piece of a book blew onto the roof of our mudroom in Brooklyn that day. The wind was blowing in our direction across the river, and our whole neighborhood was blanketed by the dust from those enormous clouds you can see in the videos, and other random detritus, mostly paper. In 2001 we were living in two rented floors of a townhouse owned by the kindest of old school landlords and still paying the same monthly rent that I had beaten him down to when I moved in in 1987. I used to beg him to raise it.  Not to market value, which was way more than we could have paid, but by a few hundred bucks at least.  “This isn’t fair, Larry,” I would say, and he would say, “I don’t know, I don’t want to lose good tenants,” and I would say, “Larry, I’m telling you, you are not going to lose us!” us will o’ the wisps, vagrants, renters. The real and the personal. Larry loved me.  He never said so, but I knew it, and I felt guilty about taking advantage of his affection by paying him sub-market rent and keeping my ground and parlor floors while he struggled up the stairs, but not guilty enough to let go of a deal like that in gentrifying Brooklyn.

So on September 11 we had a mud room with a roof that was accessible from an upstairs window, and the next day we climbed out and picked up this piece of a broken book that landed there.  It was somebody’s personal property – or had been, until it was, what, “lost”?   “Abandoned”?  “Mislaid”?  Those are all property law terms of art with different consequences for ownership, and I’m sure Blackstone will get around to addressing them in the chapters to come.  What is the legal status of a book blown from a carryon or office cubby or possibly from the hands of its reader similarly blown into the sky and back down to earth in pieces who knows where? But this is beginning to sound a bit romantic, and property is a comedy, remember, which can never end with loss. And there is something ironic, if not actually funny, about the reversal of fortunes here – the fiery destruction of those enormous, steel girded, concrete-and-metal-clad marvels of modern real estate and the concomitant survival of those flimsy personal pages. So much for immobility and permanence—it crumbled to dust, while this trifling “transient commodity” endured. II, 384. It isn’t even a particularly good book!  Like I said, a comedy.


Originally published February 11, 2018.