{"id":3330,"date":"2020-05-02T13:36:44","date_gmt":"2020-05-02T17:36:44","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3330"},"modified":"2020-09-23T21:27:20","modified_gmt":"2020-09-24T01:27:20","slug":"the-symbols-of-property","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/05\/02\/the-symbols-of-property\/","title":{"rendered":"The Symbols of Property"},"content":{"rendered":"
\n

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

 <\/p>\n

Book II.  Chapter the second.  Of REAL PROPERTY; and, first, of CORPOREAL HEREDITAMENTS.<\/em><\/strong><\/p>\n

This chapter<\/a> is about things that last.  Blackstone\u2019s property law is obsessed with permanence and impermanence, transience and immobility, with passing down and passing on and passing away. With fixing the intangible.  And ultimately with evanescing the solid land beneath your feet into a fantastic network of ideas, ethics, symbols, recognitions, understandings, and institutions that can structure social customs and individual behavior beyond the grave.  Reading this chapter I remembered the Bodies<\/em> exhibit I visited years ago in New York, in which human cadavers had been treated in some special way developed by a mad (and now, I presume, fabulously wealthy) Swiss scientist.  In room after cavernous room the bodies had been abstracted into their components \u2013 here the hall of tendons, their the gallery of bones.  The most stunning was a huge darkened space in which some twenty bodies had been stripped of all substance except for their nervous systems, which were dyed and lit up in glorious reds and purples, like so many intricate human-shaped corals or crochet projects.  It was the closest I have ever come to standing in a room with ghosts.<\/p>\n

How funny, really, that the classic explication of real property, of \u201cthings . . . such as are permanent, fixed, and immoveable,\u201d II. p. 16, should be passed down to us by a man whose legacy is the transformation of centuries of shifting uncodified doctrines into fixed immoveable text. Sitting in their blocky dark-blue box on the corner of my desk, the Commentaries<\/em> themselves seem to embody the peculiar power of that system to make objects and concepts both more real by rubbing them up against each other.  Here things that are usually polarized as being \u201csubstantial and sensible, or of an unsubstantial kind\u201d are all grouped together as potential real property, that is, \u201cprovided it be of a permanent nature.\u201d  II. p. 17. Thus property law gives to natural landscapes the immortality of ideas and to ideas the primal solidity of dirt.<\/p>\n

With such wide coverage, there is a lot of organizing to be done.  Blackstone is up to the task.  Briskly, he corrals a wildly disparate bunch of \u201chereditaments\u201d \u2013 those \u201ccorporeal and incorporeal\u201d objects \u201cthe benefit of which may descend to a man from his ancestor\u201d \u2013 into strict categorical order.  II.p.17. The chapter<\/a> begins by laying out a set of dualities (though sometimes a layer of categories comes in threes) that intersect and overlap.  Blackstone tells us that the objects of property (or \u201cdominion\u201d) \u201care things<\/em>, as contradistinguished from persons<\/em>,\u201d  II. p. 16, \u201cand things are by the law of England distributed into two kinds; things real<\/em>, and things personal<\/em>.\u201d  Id.<\/em> Descending one more level, he proceeds to offer three different real property taxonomies:  the kinds<\/em> of real property, i.e., lands, tenements, hereditaments; \u201cthe tenures by which they may be holden\u201d;  and \u201cthe estates which may be had in them.\u201d  Id.<\/em> Are you dizzy yet?<\/p>\n

Blackstone\u2019s categorical structure reminds me of the sort of \u201cintermediary\u201d order Michel Foucault describes in The Order of Things<\/a><\/em>. <\/a>Property law\u2019s categories are neither \u201ccommon sense\u201d givens \u2013 blue\/red,  boy\/girl, alive\/not alive nor scientific theories that universalize and philosophize common sense \u2013 the laws of optics, X and Y chromosomes, the elements necessary for life as we know it.  Rather, property classifications seem to occupy a space in between, or perhaps apart from, both ordinary perception and high theory.  In light of property law\u2019s alternative order, everyday categories lose some of  \u201ctheir original transparency.\u201d Foucault at xxii.  So, for instance, Blackstone informs us that \u201ctenemen<\/a>t\u201d has two meanings.  Colloquially, it means houses, or buildings.  But \u201cin its original, proper, and legal sense it signifies every thing that may be holden<\/em>, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind.\u201d  II. p.17<\/p>\n

There is a  sweeping feeling here \u2014 a suggestion that the legal language has the power to supercede, or maybe to excavate, common sense.  And you can sense the political project.  At a really basic level, before prescribing any modern features, like freedom of contract, the very strangeness of the elaborate system Blackstone describes plants the suggestion of contingency.  In Blackstone\u2019s version, the traditional real property system \u201cfrees itself sufficiently to discover that these orders are perhaps not the only possible ones or the best ones.\u201d  Foucault<\/em> at xxii.   I think Foucault has it exactly right here.  The main work Blackstone\u2019s book does is not introducing us to the particular values and structures of Anglo-American property law.  Of course it does that.  But the more important point is that the familiar landscapes, objects and relationships of our lives all can be reorganized along another set of lines that were somehow there all the time without our noticing them.  Property\u2019s categories don\u2019t replace the everyday ones.  I still think I live in a house, not a corporeal hereditament.  But the effect is to throw into relief the order we live by and take for granted. The new system offers a kind of silent critique of the world as we know it.<\/p>\n

Crucially, the legal categories are presented as both more basic and more sophisticated than the ordinary objects of experience.   Tenements and estates and hereditaments are offered as fundamental categories that have been there all along, underneath, as it were, our everyday perceptions of houses, owners, and your grandmother\u2019s bracelet.  At the same time<\/em> the legal realities are implicitly more refined, more carefully constructed and thus more perfectly suited for their role as the cutting edges that will define who receives the powers of ownership and exactly what those powers will mean.<\/p>\n

One of the most interesting moments in the chapter comes when the categories fail.  Towards the end of the chapter, Blackstone notes with obvious discomfort \u201cthat water<\/em> is here mentioned as a species of land.\u201d  II. p. 18.  Uh oh, property law seems to have made a categorical shift that even Blackstone finds unbelievable.  It\u2019s as though, rather than saying that a tomato is a kind of fruit I announced that a tomato is really a banana.  Oh no it isn\u2019t!  After his initial embarrassment, however, Blackstone collects himself and proceeds to rationalize this apparent categorical blunder in terms of the technical legal rules for pleading property claims:  \u201cI cannot bring an action to recover possession of a pool or other piece of water by the name of water<\/em> only; either by calculating its capacity, as, for so many cubical yards; or by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water<\/em>.\u201d  II. p. 18.  Hmmm.<\/p>\n

The thing to keep your eye on here, it seems to me, is not so much how the legal rules deal with water as the way they magnify the importance of land.  The approach Blackstone describes constructs land as a symbol of permanence way beyond any natural characteristics.  Doesn\u2019t water regularly wash away the land it borders?  Never mind, in Anglo-American property law, land has been transformed into a literal, eternal baseline for all natural space.  Land is the most elemental element, the alpha and omega, that without which nothing.  Without land nothing, but with it \u2014 permanence.  You can get ahold of that elusive water by getting the land underneath it \u2014 and getting it for all time.  And yet (and here is what I have grown to love about him), Blackstone is too good a writer to completely pull this off.  Fatally, he continues, with an observation that I can\u2019t help thinking reflects metaphorically the ultimate futility of a legal project to forestall loss through a language of permanent rights:  \u201cFor water is a moveable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein: wherefore if a body of water runs out of my pond into another man\u2019s, I have no right to reclaim it.\u201d II. p. 18. In the end, it seems, you can\u2019t take it with you<\/a>.<\/p>\n

First published March 29, 2011.<\/a><\/div>\n<\/div>\n\n
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Jessie Allen, School of Law, University of Pittsburgh   Book II.  Chapter the second.  Of REAL PROPERTY; and, first, of CORPOREAL HEREDITAMENTS. This chapter is about things that last.  Blackstone\u2019s property law is obsessed with...<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,492],"tags":[132,200],"class_list":["post-3330","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/pasVL2-RI","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3330","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=3330"}],"version-history":[{"count":2,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3330\/revisions"}],"predecessor-version":[{"id":3332,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3330\/revisions\/3332"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3330"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3330"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3330"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}