{"id":4086,"date":"2020-10-07T16:06:15","date_gmt":"2020-10-07T20:06:15","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=4086"},"modified":"2020-10-07T16:06:15","modified_gmt":"2020-10-07T20:06:15","slug":"a-moveable-feast","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/10\/07\/a-moveable-feast\/","title":{"rendered":"A Moveable Feast"},"content":{"rendered":"
\n

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

Book the Second.\u00a0 Chapter the twenty-fourth.\u00a0 Of Things Personal.<\/strong><\/em><\/a><\/p>\n<\/header>\n

\n

Property is comedy in the\u00a0Commentaries<\/em>: it always ends well.\u00a0 But along the way there are problems and sometimes sadness and even terror, and beneath it all a constant reckoning with mortality.\u00a0\u00a0This chapter<\/a>\u00a0is the hinge between Blackstone\u2019s accounts of real and personal property. Real property is based in things that, as Blackstone puts it, are \u201cimagined to be lasting.\u201d II, 384. In contrast, personal property is a will o\u2019 the wisp, comprising \u201call sorts of things\u00a0moveable<\/em>, which may attend a man\u2019s person wherever he goes.\u201d\u00a0Id.<\/em>\u00a0Permanence 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\u00a0real\u00a0<\/em>than the people who own them.<\/p>\n

Some of that invested reality rubs off. The OED eventually gets around to defining \u201cestate\u201d as \u201ca landed property\u201d 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 \u201ccondition of existence,\u201d rank, social status, standing or occupation. Once upon a time \u201creal estate\u201d meant a person\u2019s condition and standing in the world.\u00a0 The real deal.\u00a0 Objects of personal property, on the other hand, \u201cbeing also of a perishable quality\u201d (like their owners), \u201care not esteemed of so high a nature, nor paid so much regard to by the law.\u201d\u00a0 II, 384. In between real estate and things personal, the person herself appears, the legal subject, framed in relation to her property.<\/p>\n

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.\u00a0 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\u2019\u00a0\u201cunalienable rights\u201d<\/a>\u00a0to rape and kill them. Sometimes the person\/property distinction blurs.\u00a0 These days non-human animals are crossing and complicating that boundary, so that a judge\u2019s decision about the fate of a divorcing couple\u2019s dog might involve some consideration of the animal\u2019s best interests.\u00a0 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.<\/p>\n

The scheme Blackstone is working with here looks different. People are in the middle, not on the top.\u00a0 It\u2019s a spectrum that moves from \u201cthings that are in their nature more permanent and\u00a0immoveable<\/em>\u201d through the here-today-gone-tomorrow owners of those interests, to the even more ephemeral \u201cthings moveable.\u201d 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\u2013as 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.\u00a0 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.<\/p>\n

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 \u201canswer to posterity the trouble and pains that their ancestors employed about them.\u201d\u00a0 II, 384. But I\u2019m thinking that \u201cowning your own home\u201d is still a sign of stable character, and transience a sign of vulnerability and subversion:\u00a0 Renters.\u00a0 Drifters.\u00a0 Homeless people. Immigrants.\u00a0 Papa was a rolling stone.\u00a0 And I\u2019m thinking how hard it is to know whether what you see is anything like what is really there.<\/p>\n

\u201c\u2019When it hit\u2019, he said of the first plane, \u2018the 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\u2019.\u201d<\/p>\n

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 \u201cremember\u201d watching the towers burn for what seems like hours.<\/p>\n

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\u00a0obituary of Jack Whitten<\/a>, 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\u00a0only existing footage of the first plane\u00a0<\/a>hitting the North Tower. I didn\u2019t see the crystal burst, but I did see a small glittering shower of something fall from the building pretty much on impact. In\u00a0another video<\/a>, 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.\u00a0 These are identified as \u201caluminum cladding\u201d in a\u00a0third video<\/a>\u00a0entitled \u201cCNN lied about 9\/11: Believe Your Own Eyes,\u201d 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\u2019s explanation of the shiny showers as the buildings shedding their metallic surface.\u00a0 So is this the crystal burst Whitten saw?\u00a0 Probably. Maybe.\u00a0 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\u2019s work before, but in the\u00a0obit\u00a0<\/a>there are several photos of large abstract paintings that have a kind of mosaic surface made of, yes, shiny rectangles.<\/p>\n

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.\u00a0 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.<\/p>\n

And it comes up in so many, many ways these days. There\u2019s the whole \u201cfake news\u201d trope and the ubiquitous ideological correlations with opposing views of urgent highly consequential phenomena like climate change.\u00a0 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\u2019 parents in the room.\u00a0 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\u2019t 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 \u201cmoveables\u201d 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.<\/p>\n

What\u2019s 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.\u00a0 The other night at dinner my husband Doug turned to our teenage daughter and said, \u201ctell me one thing that happened at school today that was not awesome.\u201d\u00a0 \u201cWell,\u201d she said, \u201cour fish died.\u201d The fish was in the school music room, which is filled with all kinds of \u201cthings personal,\u201d not only trombones and tambourines, but coffee makers, slinkies and light sabers, and now, apparently, a fish tank. \u201cAnd the really sad thing,\u201d my daughter continued, \u201cis that he was really stressed before he died.\u201d\u00a0 \u201cOh,\u201d I said, \u201cthat is sad,\u201d and before I could stop myself, my eyes started to fill, and I started crying.\u00a0 Now, I am known in my family as a crybaby \u2013 I\u2019ve cried at TV commercials \u2014 but a stressed guppy is a low threshold even for me. Still I couldn\u2019t 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\u2019t 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. \u201cWe\u2019re eating fish,\u201d she observed.<\/p>\n

Maybe the problematic epistemology of things real and personal does have something to do with the project of property rights.\u00a0 The title of the volume in which this first chapter on personal property appears, is \u201cOf the Rights of Things.\u201d\u00a0 It is usual to explain, as I think did in my\u00a0first post<\/a>\u00a0on this volume, that Blackstone doesn\u2019t mean that inanimate things have rights, but rather that the book is about people\u2019s rights to own things, aka property rights.\u00a0 But it turns out that this is only half true. There\u2019s 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).\u00a0 But the idea that \u201crights\u00a0of<\/em>\u00a0things\u201d only means people\u2019s rights\u00a0to<\/em>\u00a0things misses an important point. In the scheme Blackstone is expounding\u00a0things<\/em>\u00a0are a\u00a0source<\/em>\u00a0of 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.\u00a0 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 \u201cprecarious duration of things personal.\u201d II, 388.<\/p>\n

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. \u00a0Not to market value, which was way more than we could have paid, but by a few hundred bucks at least.\u00a0 \u201cThis isn\u2019t fair, Larry,\u201d I would say, and he would say, \u201cI don\u2019t know, I don\u2019t want to lose good tenants,\u201d and I would say, \u201cLarry, I\u2019m telling you, you are not going to lose us!\u201d us will o\u2019 the wisps, vagrants, renters. The real and the personal. Larry loved me.\u00a0 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.<\/p>\n

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.\u00a0 It was somebody\u2019s personal property \u2013 or had been, until it was, what, \u201clost\u201d?\u00a0\u00a0 \u201cAbandoned\u201d?\u00a0 \u201cMislaid\u201d?\u00a0 Those are all property law terms of art with different consequences for ownership, and I\u2019m sure Blackstone will get around to addressing them in the chapters to come.\u00a0 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 \u2013 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\u2014it crumbled to dust, while this trifling \u201ctransient commodity\u201d endured. II, 384. It isn\u2019t even a particularly good book!\u00a0 Like I said, a comedy.<\/p>\n<\/div>\n

 <\/p>\n

Originally published February 11, 2018.\u00a0<\/a><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh Book the Second.\u00a0 Chapter the twenty-fourth.\u00a0 Of Things Personal. Property is comedy in the\u00a0Commentaries: it always ends well.\u00a0 But along the way there are problems and...<\/p>\n","protected":false},"author":10,"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":[268,255,79,492],"tags":[490,489,132,200],"class_list":["post-4086","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-news","category-william-blackstone","tag-jurisprudence","tag-law-and-philosophy","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-13U","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4086","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\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=4086"}],"version-history":[{"count":1,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4086\/revisions"}],"predecessor-version":[{"id":4087,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4086\/revisions\/4087"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=4086"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=4086"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=4086"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}