{"id":4189,"date":"2020-10-28T16:15:56","date_gmt":"2020-10-28T20:15:56","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=4189"},"modified":"2020-10-28T16:34:16","modified_gmt":"2020-10-28T20:34:16","slug":"lost-property-department","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/10\/28\/lost-property-department\/","title":{"rendered":"Lost Property Department"},"content":{"rendered":"

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

Book the Second, Chapter 26. Of Title to Things Personal by Occupancy.<\/em><\/strong><\/a><\/p>\n

This chapter<\/a>\u00a0is about loss. Talk about entitlement to property usually focuses on how to get things, how to make them rightfully and exclusively ours. But Blackstone says that he will treat gain and loss together.\u00a0 They will be \u201cblended in one and the same view, as it is for the most part impossible to contemplate the one, without contemplating the other also.\u201d II, 400 Maybe he is thinking reciprocally, as in, one person\u2019s gain is another person\u2019s loss. That would be interesting, because it\u2019s a more modern, critical view than is usually attributed to Blackstone. But when I read that line it made me realize something about private property that I had never thought of before. For all personal property, loss\u2014or at least separation\u2013is not just a possibility, it is an eventual certainty.<\/p>\n

Property held in common need never be separated from its owners, so long as the society that recognizes the commons endures. Collective farms administered by a central state and South Pacific Kula rings can go on forever. But private ownership comes to an end with its mortal individual owners. So, making private property outlast a human life is going to take some pretty fancy cultural craft. \u00a0Enter the law of property.<\/p>\n

A lot of Anglo-American property law is obsessed with time. The classic estate system of land ownership is all about the different consequences of various events projected into the future. The best types of estates, the so-called \u201cfreeholds,\u201d all have one thing in common, namely, that they exist for indefinite periods of time. Unlike human beings, these estates, and their associated landholding statuses, might go on forever; they are not \u2018naturally\u2019 limited. The focus on time makes sense in a system that treats \u201coccupancy,\u201d or, possession as \u201cthe original and only primitive method of acquiring any property.\u201d\u00a0 II, 400. In fact you could see all the ways of transferring property from one individual to another\u2013 gifts, sales, trades, etc., and especially wills and inheritance by descent\u2013 as inventions made to defeat time.\u00a0 Because one thing is for certain: whatever space you currently occupy, at some point in the future you will cease to be there, whatever you are holding onto you will eventually let go of.\u00a0 So in a way the first question for property law is how to create rightful ownership that continues after you are gone \u2013 whether gone for a morning ramble or gone after you are dead.<\/p>\n

In my day to day doings, I rarely think about the source of \u00a0property rights. I just \u201csee\u201d property. Things just look like they belong to someone, and are therefore off limits, whether anyone is holding them at the moment or not. In fact I often see the presence of what I take to be someone\u2019s personal property as generating more property.\u00a0 If you leave your backpack on a table at the library and go off roaming in the stacks, not only do I assume that the pack and its contents continue to be exclusively yours, I would probably regard the table as reserved for your future use. All of this feels obvious, almost automatic. But of course it is not. Behind all these responses there is a complicated set of signals about what counts as property, signals that I have internalized to the point that I don\u2019t even notice myself seeing them.<\/p>\n

What it takes to occupy, or, possess, something so that it becomes your private property is contextual. One culture\u2019s obvious signs of exclusive ownership become invisible, or at least ambiguous, from a different cultural perspective.\u00a0 Or maybe they just get easier to ignore. Supposedly, the British colonists did not see Native American property because the land lacked familiar agricultural forms. From the British point of view, the Indians were not really occupying the land at all, or, worse, they were wasting the land by failing to farm it properly. The invisibility of Native American occupancy is sometimes presented as a universal European blind spot, but there were contemporary skeptics, including, as it happens, Blackstone. Early in the\u00a0Commentaries<\/em>\u00a0he observes that England\u2019s \u201cAmerican plantations\u201d were obtained by \u201cdriving out the natives (with what natural justice I shall not at present enquire).\u201d\u00a0 I, 105.<\/p>\n

Contested occupancy isn\u2019t always intercultural or historically significant. Earlier this summer I was in a crowded pub watching a World Cup quarter final. There were many more patrons than chairs, but at the table in front of us, a young Brazil fan had her purse on the seat next to her and was saving it for a friend who she claimed would be arriving late. As the minutes of the match wore on, I found myself more and more annoyed by her refusal to let the seat go to a soccer fan eager and industrious enough to show up on time. The situation seemed dreadfully unfair to me. My own daughter was standing. What\u2019s more, this woman\u2019s selfish chair grabbing looked like just the sort of bad-faith, bad-karma behavior that could jinx the game\u2019s outcome. \u201cIf Brazil loses, it\u2019s her fault,\u201d I hissed to my husband. I was like the American settlers \u2014 only prepared to recognize rightful occupancy where the available resource was being used the way I thought it should! And within minutes, my doubts about this young woman\u2019s property claim turned righteous. If I had had an invading army, who knows what I would have done. And, by the way,\u00a0Brazil did lose<\/a>. I\u2019m just saying.<\/p>\n

How long and how hard do you have to hold onto something for it to become yours?\u00a0 And once you have possessed something, if you eventually find that it is gone, does that always mean you lost it? What if you used it up, like soap or wine?\u00a0 Is consumption a kind of loss or is that entirely different?\u00a0 What if you intentionally let it go? What if what you once had has turned into something else, the yarn now a sweater, the kitten a cat, the child a college-bound young woman who keeps talking about how this is her \u201clast summer\u201d at home? \u00a0But I digress.<\/p>\n

There is really only one way to establish a stable personal relationship with something so that it can never be lost, and that is to never acquire it in the first place. Sometimes that relationship can be surprisingly satisfying.\u00a0 My best personal example of this is a lime sherbert donkey. (\u201cSherbert,\u201d which my lap top\u2019s spell check does not recognize, is, or was, the Midwestern version of what I would now call \u201csorbet.\u201d\u00a0 Possibly it was never spelled that way, but in my mind that is how it appears.) When I was about six, my parents went to a Democratic Party fundraising dinner, and the next morning my mother described the dessert \u2013 lime sherbert molded into the shape of the Party\u2019s symbol, a donkey. \u201cOh,\u201d she said, \u201cI wanted to bring it home to you so much.\u00a0 I thought, \u2018Jessie would love this\u2019, but I couldn\u2019t because it would have melted in my purse.\u201d To this day, over fifty years later, I can recall that dessert\u2013its color, its adorable animal shape, its cold deliciousness in my mouth, the exact combination of tart lime and sugary sweetness\u2013more vividly than any dessert I have actually eaten.<\/p>\n

I wrote most of this essay on a Greek Island surrounded by what seemed to me almost absurd abundance. The morning sun would heat up the gardens surrounding the house where we were staying and start up a percussive Cicada chorus, shockingly loud for sound made by creatures you almost never see; there must have been millions jingling away out there. In the afternoons we slept as if drugged, and woke to a sharp breeze cooling the valley, tearing at the thatch over my writing table on the terrace, which sat beside an enormous fig tree, its bulky trunk like an elephant\u2019s foot, its laden branches reaching up to the roof above me and down to the ground on the opposite side. Once a woman came by and explained to me that figs were so ubiquitous on the island they were considered free for the taking, no matter where they grew. Walking to the car, I would grab the purple grapes that hung over the path, still heated from the sun, and shove them in my mouth where they tasted between fruit and wine.<\/p>\n

In such a world, loss seemed like the farthest thing from anyone\u2019s mind, but of course Greece is full of stories of things that have been lost. Most recently and systemically, many Greeks\u00a0lost jobs and pensions<\/a>\u00a0after the 2008 economic crisis. Unemployment is still high \u2014 20% overall and a whopping 43% for young people, meaning that young Greeks face the prospect of leaving their country in order to make a living. People who do have jobs often have lower wages. There\u2019s no question that the increased need for tourist dollars is what made it affordable for us to be there this summer eating those grapes.<\/p>\n

Sometimes things that are lost can be regained.\u00a0 Earlier this year after 27 years of fighting over the name \u201cMacedonia\u201d the Greeks got it back. The Balkan Republic of Macedonia finally agreed to become the \u201cRepublic of Northern Macedonia,\u201d and \u201cMacedonia\u201d will henceforth refer exclusively to a region in Northern Greece. Exclusive possession of a name might not seem particularly important, but apparently in this case it was a really big deal. It has something to do with the fact that Macedonia is the birthplace of Alexander the Great, perhaps the figure most identified with connecting ancient Greek culture and modern Greece. But simple historical facts cannot entirely explain the depth of feeling.\u00a0 Earlier this year, 140,000 Greeks staged a \u201cMacedonia is Greece\u201d rally at the parliament building in Athens, chanting that the name\u00a0\u201cis in our soul.\u201d<\/a><\/p>\n

At the new Acropolis Museum in Athens, another deeply felt loss is on display. There, in a glass room with a clear view of the Parthenon, the temple\u2019s\u00a0marble frieze<\/a>\u00a0has been reconstructed interspersing warmly golden original panels with white plaster copies of the panels that were removed and taken to England in the nineteenth century. As a\u00a0museum archeologist explains,<\/a>\u00a0the contrast between the beautiful old stone and the plaster is intentional: \u201cEveryone understands at once what is missing.\u201d\u00a0 Indeed, this may be the first museum built to exhibit loss.<\/p>\n

Greece has been protesting the Parthenon sculptures\u2019 removal and demanding their return for nearly 200 years. The missing marbles are on display in London, in the British Museum, where a\u00a0pamphlet<\/a>\u00a0does its best to transform the Greeks\u2019 loss into the world\u2019s gain. Exhibiting the sculptures in two different contexts is said to be an opportunity for \u201cdifferent and complementary stories to be told\u201d about the Parthenon\u2019s \u201csignificance for world culture.\u201d The marbles are the \u201cuniversal legacy\u201d of a \u201cshared heritage that \u201ctranscend[s] cultural boundaries,\u201d a claim that might be more convincing were Britain not currently engaged in its bitter nationalist \u201cBrexit\u201d from the European Union.<\/p>\n

The Greeks don\u2019t really dispute that in some way the Parthenon sculptures belong to the world: \u201cThey don\u2019t belong to the British, they don\u2019t belong to us. They belong to history,\u201d\u00a0declares the director\u00a0<\/a>of the Acropolis Museum.\u00a0 But they still want them back.\u00a0 And no wonder.\u00a0 Besides the sheer aesthetic pleasure of seeing the frieze complete, there just seems to be something about possession that generates a perception, a visceral sensation, a kind of seeing-is-believing feeling of rightful ownership. In fact, if there is anything legitimate about the British Museum\u2019s claim to the sculptures, it\u2019s not because the guy who took them and sold them to the museum may have been trying to preserve them.\u00a0 And it is certainly not because the museum\u2019s collection of far fetched antiquities \u201callows the world\u2019s public to re-examine cultural identities and explore the connections between them.\u201d I love the British Museum, but please! If anything feels right about seeing the marbles there, it\u2019s just because the museum has managed to hang onto them so openly for so long.<\/p>\n

Somehow seeing something in someone\u2019s possession for a long time just makes it appear to belong to them, assuming, of course that it is of the sort of possession or occupation one is disposed to recognize, not, for instance, a purse on a chair in a pub jammed with standing World Cup fans. And if the thing in question was taken from someone else, it\u2019s unlikely that person will ever see the taker\u2019s claim of ownership as legitimate. If anything, seeing another\u2019s open possession just feeds the rage and grief over the object\u2019s loss. But ordinarily the rest of us can\u2019t see that loss; we don\u2019t see absence. That\u2019s what makes the Acropolis Museum display so brilliant. By making the missing marbles\u2019 absence visible, it makes a kind of property of loss.<\/p>\n

Originally Published August 21, 2018.\u00a0<\/a><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh Book the Second, Chapter 26. Of Title to Things Personal by Occupancy. This chapter\u00a0is about loss. Talk about entitlement to property usually focuses on how to...<\/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-4189","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\/pasVL2-15z","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4189","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=4189"}],"version-history":[{"count":1,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4189\/revisions"}],"predecessor-version":[{"id":4190,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4189\/revisions\/4190"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=4189"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=4189"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=4189"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}