{"id":4097,"date":"2020-10-14T17:14:16","date_gmt":"2020-10-14T21:14:16","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=4097"},"modified":"2020-10-14T20:53:09","modified_gmt":"2020-10-15T00:53:09","slug":"everything-changes","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/10\/14\/everything-changes\/","title":{"rendered":"Everything Changes"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh\u00a0<\/a><\/p>\n

Book the Second, Chapter the Twenty-Fifth. Of Property in Things Personal.<\/strong><\/em><\/a><\/p>\n

The property in\u00a0this chapter<\/a>\u00a0is always escaping. The objects of our desire are captured and subdued but recover their original wild nature and are lost, pursued, recaptured and lost again. It\u2019s about possession \u2013 but who is possessed, and by what, or by whom?<\/p>\n

The story starts out quietly enough, describing personal property in inanimate objects with the first of many lists: \u201cgoods, plate, money, jewels, implements of war, garments, and the like.\u201d II, 289 (Although, notice that oddly foreboding \u201cimplements of war\u201d tossed into the otherwise quotidian still life.) Things start to get interesting with property in animals, which \u201chave in themselves a principle and power of motion.\u201d\u00a0Id.\u00a0<\/em>Again, there\u2019s initial calm: \u201chorses, kine [cows], sheep, poultry,\u201d II, 390 but you can feel the tension building as captivity becomes more obvious and less stable: \u201cdeer in a park, hares or rabbets in an enclosed warren, doves in a dove house, pheasants or partridges in a mew, fish in a private pond.. . .\u201d II, 392 Then, a cascade of increasingly precarious and vexed connections \u2013 \u201cmy tame hawk that is pursuing his quarry in my presence. . . . my pigeons that are flying at a distance from their home,\u201d\u00a0Id.<\/em>\u00a0\u201cthe deer that is chased out of my park or forest and is instantly pursued by the keeper or forester,\u201d \u201ca swarm, which flie from and out of my hive, . . . so long as I can keep them in sight and have power to pursue them.\u201d II, 393 Everywhere, abandoned owners stumble after galloping, flying, evanescing property.<\/p>\n

\u201cOnce there was a little bunny who wanted to run away.\/ So he said to his mother, \u2018I am running away.\u2019\u201d Margaret Wise Brown,\u00a0The Runaway Bunny<\/a><\/em><\/p>\n

Ownership of these wild things, the wonderfully alliterative\u00a0ferae naturae,\u00a0<\/em>lasts only as long as you control them, or at least have some imminent prospect of regaining control. So, hawks, swans, deer, foxes, bees are free (meaning free for the taking, not endowed with any autonomy that law protects) until they are captured, or \u201ctamed and confined by the art and industry of man.\u201d II, 392\u00a0 And it\u2019s not just animals.\u00a0 This kind of \u201cqualified\u201d property \u201cmay subsist in the very elements of light, or air, and of water\u201d on account of their \u201cvague and fugitive nature.\u201d II, 395\u00a0 No particularly commanding force is required. It\u2019s all relative, and all about the object\u2019s capacity to slip from its owner\u2019s control.\u00a0 Animals can be owned without the aid of traps, leashes or cages \u201con account of their own inability.\u201d II, 394\u00a0 So, when \u201cconeys or other creatures make their nests or burrows in my land, and have young ones there, I have a qualified property in those young ones, till such time as they can fly, or run away, and then my property expires.\u201d\u00a0Id.<\/em><\/p>\n

\u201c\u2019If you run away,\u2019 said his mother, \u201cI will run after you.\u201d<\/p>\n

It\u2019s often said that the U.S. Constitution\u2019s\u00a0fugitive slave clause<\/a>\u00a0denied slaves legal personhood and relegated them to the status of property.\u00a0 But reading Blackstone makes clear that the text goes even further.\u00a0 By declaring that property in human beings would not be subject to the fluctuations long understood to affect ownership of non-human animals, the American founders created a new category of super (or sub) property. Actual possession is no longer necessary or even relevant.\u00a0 A deer that escapes my park is no longer mine, but a slave is a slave is a slave.<\/p>\n

Notice that the new acontextual property in human beings has a modern, rational feel to it. It seems factual.\u00a0 Things are what they are.\u00a0 Animal, vegetable, mineral. In comparison, the malleable common law has a fairy tale quality, with its shape-shifting changes from property to natural resource and back to property again.\u00a0Dred Scott\u00a0<\/em>v.\u00a0Sandford<\/em><\/a>, the infamous nineteenth-century case holding that a slave taken to a free state was still a slave and denying citizenship to all African Americans, is on everybody\u2019s list of all-time U.S. Supreme Court fails.\u00a0 But when I teach the case in my property class, my students often struggle to find the opinion\u2019s flaws.\u00a0 In fact there are many mistakes of history and logic, to say nothing of politics and justice, but they are masked with a great sense of consistency and stability. No more need to assess the meaning of uncomfortably complex and changing relationships of ownership, control and identity. No more border crossing. No more of this frog, prince, frog nonsense. Everything and everyone is going to be what they are and stay that way once and for all. Indeed a concurring justice in\u00a0Dred Scott<\/em>\u00a0mocked as a \u201ckind of magic\u201d the idea that contextual shifts could change the \u201cessential character\u201d of property.<\/p>\n

But notice also that the common law\u2019s transformational approach to personal property aligns with what we now claim to recognize about the categorical identities\u2014the properties\u2013 of race and gender, namely that they are social constructs subject to change, not unchanging universal facts. And maybe a familiarity with fairy tales goes along with that understanding.\u00a0 I still remember when the daughter of a white friend of mine came home from school and told her mother about the day\u2019s lesson on Rosa Parks. In response, my friend proudly recounted her own participation in a civil rights march in the 1960s. \u201cMommy,\u201d exclaimed her excited kindergartner, \u201cwere you Black\u201d?<\/p>\n

In Blackstone\u2019s common law account, the things one owns are not themselves \u201cproperty.\u201d\u00a0 Instead, at least grammatically, property is something that permeates or inhabits certain objects under various circumstances and then disappears when the circumstances change. Think of it as a quality, or a spirit, perhaps, or, even more materially, as a substance \u2013 some kind of liquid or gas that occurs invisibly (although I sometimes imagine it imparting a kind of metallic shine or glow to the objects it invades). Sometimes property even seems to be a living thing, as when, explaining qualified ownership of wild animals, Blackstone refers to the \u201cspecies<\/em>\u00a0of property\u201d that \u201cmay subsist in such animals.\u201d II, 391 The animal within the animal. The ghost in the machine.<\/p>\n

This simultaneously material and contextual approach to property rights seems utterly alien to both our current way of thinking about law and our rational scientific understanding of the physical universe.\u00a0 These days we assume the separation of these two worlds: on the one hand moral sentiments, legal rules and political relationships that constitute property rights and, on the other, the amoral reality of their biophysical background. It\u2019s just too strange and silly to treat property as a mysterious spirit or substance, let alone a kind of creature, that slips in and out of objects and animals, binding them to us with its presence, and with its disappearance releasing them. Maybe I am unusually prone to this kind of thinking at the moment, because of all the changes going on around me. Don\u2019t ghosts traditionally appear at the crossroads?\u00a0 In my house we are betwixt and between a pair of transformations as my husband finishes grad school and our daughter, our only child, turns eighteen and prepares to leave for college, to be released, as it were, back into the wild.<\/p>\n

In defense of my sanity, let me just point out that property law today is still very much in the business of enacting transformations, changing things from objects of ownership into legal subjects and back again, personifying and depersonifying.\u00a0 In Blackstone\u2019s day, \u201cdogs, bears, cats, apes, parrots and singing birds\u201d occupied a borderline status. As creatures kept \u201cfor pleasure, curiosity, or whim\u201d whose value was \u201cnot intrinsic, but depending only on the caprice of the owner\u201d they were not quite fully personal property. II, 393 Stealing a dog might be some kind of \u201can invasion of property,\u201d but it could not be a crime. II, 392-393 Today dogs and other \u201ccompanion animals\u201d still occupy an unstable marginal status, but they have moved to the other end of the property-personhood spectrum.\u00a0 In one case a dog might be treated as a thing that belongs to its human household and in another as a member of that household.\u00a0 Judicial decisions about where the dog of a divorcing couple will live sometimes read more like custody arrangements than property allocations.<\/p>\n

Nor is it only domestic animals that approach legal personhood.\u00a0 Several years ago a group of whales\u00a0sued\u00a0<\/a>Sea World through their \u201cnext friend,\u201d the organization PETA (People for the Ethical Treatment of Animals). It was a\u00a0Thirteenth Amendment<\/a>\u00a0claim. The whales alleged that by kidnapping and confining them, and forcing them to breed and labor for their human owners\u2019 profit, Sea World had enslaved them. The federal judge\u00a0dismissed the complaint<\/a>\u00a0on the ground that in the Thirteenth Amendment \u201cthe terms \u201cslavery\u201d and \u201cinvoluntary servitude\u201d refer only to persons.\u201d\u00a0Tilikum v. Sea World<\/em>, 842 F. Supp. 2d 1259, 1263 (2012)\u00a0 Whatever you think of the judge\u2019s ultimate ruling, it is certainly ironic to find a federal court assuming without argument that for purposes of the Thirteenth Amendment, the categories of legal personhood and humanity are coincident. After all, the constitutional text it amended and the institution it outlawed were based on a similar assumption regarding whiteness. Why is the twenty-first century assumption that only human beings can be constitutional persons any more unassailable than the nineteenth century conclusion that only white human beings can be constitutional persons?\u00a0 Especially once you recall that legal personhood extends to corporations, which enjoy some constitutional rights.<\/p>\n

If anything, the whale case makes glaringly obvious that we reach for biological facts to define legal rights only when we choose to, and there is no reason at all to assume the coincidence of rights and any given physical realities.\u00a0 At the same time, crossing up legal rules and physical realities is a ubiquitous, if only half-conscious, legal practice. Law leans heavily on physical metaphors to enact and explain its rulings. We speak of judges being constrained, \u201cbound,\u201d to rule as they do. \u00a0Judges \u201cweigh\u201d interests and \u201cbalance\u201d specified\u00a0 circumstances, and when they make policy choices it is only to fill \u201cgaps\u201d in a preexisting \u201cbody\u201d of law.\u00a0 There are plenty of other discourses and institutions that harness (see, there\u2019s one right there!) physical metaphors to carry out persuasive projects. But as I talk with my students and colleagues it often strikes me that we sound as if we are talking about some mechanical or other sort of physical system that can set things in motion or stop them with words alone.\u00a0 At the same time, these discussions rarely mention actual physical coercion by real embodied humans, the police and soldiers who enforce legal rules and judicial decisions. It\u2019s a discourse that denies its materiality at the same time that it is defined by it.<\/p>\n

Critics occasionally note law\u2019s substitution of metaphor for violent reality.\u00a0 \u201cMetaphors in law are to be narrowly watched,\u201d Benjamin Cardozo\u00a0warned<\/a>.\u00a0Berkey v. Third Ave. Railway Co..<\/em>, 244 NY 84, 94 (1926) But the grammar of physical capacity is so pervasive and familiar that it generally does not even strike us as metaphorical: a binding contract, a broken law, a statutory constraint. Consider Blackstone\u2019s bland assertion that inanimate objects of personal property cannot \u201cbe moved out of the owner\u2019s possession without his own act or consent.\u201d II, 389.\u00a0 It\u2019s as if property law is a force that immobilizes things and makes them stick to their designated owner (imagine a kind of magnetism or chemical bonding), so that they literally can\u2019t be moved unless the owner does something, or, perhaps, in the \u2018consent\u2019 case, says something that, like a magic spell, undoes the attachment.<\/p>\n

Blackstone himself seems to recognize the odd materiality of his description, because he immediately backtracks, explaining that he means that the objects can\u2019t be taken from their owner \u201cwithout doing him an injury, which it is the business of the law to prevent or remedy.\u201d\u00a0 II, 389\u00a0 Of course, you could read that qualification as a further physical description of ownership as a kind of adhesion, so that tearing an object away from its rightful owner takes some of the owner\u2019s flesh with it \u2013 a kind of band-aid theory of property.\u00a0 Probably, though, you read it to mean that violations of legal property rights can be understood as the legal correlative of physical harms, another physical metaphor.<\/p>\n

Now here\u2019s where things get really strange. Blackstone\u2019s use of \u201cinjury\u201d in this sentence is\u00a0not<\/em>\u00a0a metaphor at all. \u201cInjury\u201d originally means the harm of\u00a0legal violation\u00a0<\/em>or injustice. You can see this in the morphology of the word, which contains the root \u201cjur\u201d as in jurist, jurisprudence, jury. In this case, the metaphorical arrow is reversed.\u00a0 \u201cInjury\u201d is a metaphor when we use it to express a purely physical,\u00a0nonlegal<\/em>\u00a0harm, a broken arm or a stubbed toe. So it turns out that the confusion of physical realities and legal rules does not just complicate and constitute our understanding of law.\u00a0 Our observations of the physical universe are shaped in part by our application of legal concepts to what we observe. Indeed, the term \u201claw\u201d itself is routinely used metaphorically to describe observed physical regularities, as in the second \u201claw\u201d of thermodynamics.\u00a0 The \u201claws\u201d of nature are not an empirical fact that we found in a world completely untouched by social structures.\u00a0 The idea that observed regularities are somehow prescribed or necessary comes not from observation but from legal culture. All the world\u2019s materiality is already pervaded by law.<\/p>\n

Goods, plate, money, jewels, implements of war, garments. . . . fire, light, air, and water, as long as they are in actual use and occupation, but no longer. . . . hawks that are fed and commanded by their owner. . . . baby hawks, herons, coneys or other creatures who make their nests or burrows in my land, till such time as they can fly or run away. The common law of personal property seeps in and out of the world\u2019s common objects, materials and creatures. In the process, the familiar comes to seem strange and is reshaped, made familiar again from a different perspective. Categories shift, disappear, are transformed and reappear. Through it all there is a kind of conservation, as if, just as nothing is ever guaranteed to stay the same, nothing is ever irretrievably lost.<\/p>\n

Recently I was visiting a friend in another city, and she gave me a key to her apartment so I could come and go as I liked. Holding it, I was struck by how atavistic the thing was \u2013 this hunk of worn metal warming in my hand. It\u2019s not just that for years we\u2019ve been opening hotel and office doors with a magnetic tap or swipe.\u00a0 It\u2019s the nature of the thing itself: how heavy for such a small object, how rigid, thick and shiny. The key seems like a relic of an earlier age it shared with subway tokens and the glass bottles that used to hold everything from shampoo to Coca Cola. Yet there must be millions upon millions of keys currently in the pockets and backpacks and purses of people all around the globe.\u00a0 How strange that something could be so ubiquitous and at the same time so plainly marked for extinction, as if it already belonged to the past.<\/p>\n

\u201c\u2019If you run after me,\u2019 said the little bunny, \/\u2018I will become a fish in a trout stream and I will swim away from\u00a0 you.\u2019\/ \u2018If you become a fish in a trout stream,\u2019 said his mother,\/ \u2018I will become a fisherman and I will fish for you\u2019.\u201d<\/p>\n

Originally Published May 14, 2018.\u00a0<\/a><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh\u00a0 Book the Second, Chapter the Twenty-Fifth. Of Property in Things Personal. The property in\u00a0this chapter\u00a0is always escaping. The objects of our desire are captured and subdued...<\/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-4097","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\/pasVL2-145","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4097","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=4097"}],"version-history":[{"count":2,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4097\/revisions"}],"predecessor-version":[{"id":4100,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4097\/revisions\/4100"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=4097"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=4097"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=4097"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}