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On Owning, Death, and Dynasties

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8 Responses

  1. AP says:

    Great post. Is it your position that ownership cannot exist without legal recognition?

  2. Orin Kerr says:

    This isn’t my area, so I apologize if my question is amateurish. But why isn’t the answer to say that (a) the concept of ownership is actually pretty easy — it’s legally recognized rights to control — but that (b) as a matter of policy, we impose all sorts of practical limits on how ownership rights are exercised in order to recognize specific problems like minors and rights after death? What is gained by combining these two questions into one and theorizing about the essential nature of ownership?

  3. Meredith Render says:

    AP: Thank you for the kind words. I think it is an interesting question whether there is such a thing as “ownership” that lacks legal recognition. There are a couple of ways that we could think about the issue. We could, for example, contemplate the possibility that when we talk about “owning” we may be referring to one of two distinct concepts: a legally-constituted concept of “owning” and a non-legally-constituted (but otherwise conventional, in contrast to the third possibility contemplated below) concept of “owning”. For this to be the case, there would have to be some content to the non-legally-constituted concept that is not strictly parasitic on our legal concept of ownership. In other words, the two concepts must be distinguishable by particular instantiations (or examples) of their application. If this were true, then when we speak of owning in the non-legally-constituted sense we would necessarily be referring to something other than merely the capacity to exercise control backed by the force of law. To a limited degree this possibility is supported by our casual “property talk.” We use possessory language to describe our relationship to a number of entities that we do not legally “own.” For example, we talk about “our” kids, or “my” friends, or “my” JD. However, while this possessory language would seem to connote some kind of normatively-bounded “belonging to me” relationship to the entity in question, that “belonging to me” relationship may not be “ownership.”

    On the other hand, although I am not fully committed to this proposition, I think an easier case may be made for the claim that when we speak of “ownership” we are always speaking about the legally-constituted concept of “owning,” but sometimes we are simply wrong about what we think we own. In this sense, if we talk about “owning” our kids, we may believe that the relationship we are describing is tantamount to (or coterminous with) ownership, but we are simply wrong. This point arises readily in the context of human body ownership, where we often talk and behave as though we “own” our whole and living body, but to the degree the law doesn’t recognize back that intuition with the force of law, we are simply wrong. I actually argue (in the paper I refer to in the post) that the law does recognize (albeit implicitly) a property interest in the whole and living body, so when we speak about “owning” our body, we are correctly applying the concept of “owing.”

    There is a third possibility that merits consideration as well. It could be the case that when we speak of “ownership” that is not backed by force of law, we are referring to an “ownership” status that is conferred by natural law rather than positive law. From this perspective, property rights may be understood to be uniquely pre-social such that the normative designation of “ownership” is not coterminous with the legally-constituted concept of “ownership.” Although there is more to say about this third possibility, I fear that I have already taxed your patience sufficiently with this lengthy response. Thanks again for the comment.

  4. Meredith Render says:

    Orin: Thank you for your comment. I certainly see your point, and it could be the case that the most fruitful way to think about the concepts of “owner” and “ownership” is to simply investigate how our positive law applies these concepts in particular instances. So we know that a baby can be an “owner” because positive law recognizes that possibility. But from my vantage point, there is utility in contemplating whether positive law’s application of these concepts reveals any necessary commitments or criteria for their application. This utility is perhaps best illustrated in the context of novel “ownership” possibilities. For example, can a tree be an “owner?” This might seem like a silly example, but the status designation of “owner” was purportedly conveyed by deed to a tree in Athens, Georgia in the 1820s. It was reported that the deed ostensibly conveyed ownership of the tree to the tree itself, as well as eight feet of real property surrounding the tree on all sides. Although the story of the deeded transfer may be apocryphal (see, http://books.google.com/books?id=g0YUAAAAYAAJ&dq=%22Jackson%20Oak%22%20Athens&pg=PA1446#v=onepage&q=%22Jackson%20Oak%22%20Athens&f=false) it raises an interesting question about how we know what does and does not fall within the concept of “owner.” While we may conclude that a tree cannot be an owner, it is not immediately obvious why this is so. The concept clearly applies to non-natural persons (like corporations) so perhaps the concept applies to any entity that is the recipient of a valuable resource, whether that entity is a natural person, a corporation, a tree, or a dog (it turns out that dogs are frequently the recipients of testator largess; see e.g.: http://nymag.com/guides/bestlawyers/12276/). If we think (or a court decides) that a tree or a dog cannot own property, it is reasonable to wonder why that is the case. Although we might conclude that allowing a dog or tree to own property would make for poor policy, to some degree this conclusion assumes the premise. What is it about these entities that make them poor candidates for the status designation of “owner”? Whatever the answer to that question may be (sapience? agency?), the answer would provide insight into the commitments implicit in our concept of “ownership.” In turn, the illumination of those commitments would not only permit us to offer a more satisfying answer to the question of why a particular entity falls within the concept of “owner,” but would also provide grounds for criticizing a particular application of the concept (e.g. a court’s ruling) that seems to be inconsistent with what we have learned about the concept. This latter point is, I think, especially significant in light of tremendous importance of the concept in our legal scheme writ large.

  5. Orin Kerr says:

    Thanks for the response, Meredith. If ownership just means the right to control, as I am suggesting, then I would think that the reason trees and dogs can’t be owners is that control at the very least implies conscious thought and the ability to express it in order to articulate control. The tree is an easy example. You can’t control something unless you have a brain, so the idea of something without a brain “owning” something else seems intuitively wrong.

  6. I suspect several types of behavior that we bring under the description of “control” are in fact exhibited by some nonhuman animal species. Furthermore, it is not brains, as such, that can account for the capacity to exercise that kind of control peculiar to ownership, as many nonhuman animals have brains. But propositional knowledge and propositional attitudes, and the kind of intentionality associated with creatures like us, with a capacity for self-consciousness or self-awareness, self-knowledge, and the peculiar manner in which these capacities are related to our thoughts, beliefs, and desires, together account for distinctively human agency. So, instead of referring to our “brains,” Orin might have spoken of our “minds,” for it is the latter that we possess, uniquely, as human animals, minds as defined by our distinctive form(s) of consciousness. It is this kind of consciousness, as Raymond Tallis argues, that is cause and consequence of the existential intuition “That I am this…” (in evolutionary terms: the ‘emergence of the first-person subject within the impersonal body’) which expresses a transformed relationship of the human organism to itself that serves to distinguish its possession of knowledge from the sentience of our nearest animal kin (Tallis has written a three volume study of these topics). It is human agency which allows for us to articulate the normative concept of “ownership,” and thus it is arguable if not unlikely that any nonhuman species can be thought of as owners in anything other than a figurative or derivative sense, although, again, such animals may exhibit forms of control over aspects of their environment and their fellow creatures (while lacking the concept of ‘control’).

    What I find more intriguing is the question to what extent our modern capitalist notion of “ownership,” morally and legally speaking, has been connected to the notion of a moral right of “self-ownership” (a concept that, as the late G.A. Cohen noted, has been put to both progressive and reactionary uses). Indeed, it would be interesting to compare different types of ownership found in earlier periods, as well as outside the orbit of what we’ve come to call Western civilization. Moreover, a more systematic comparison with notions of “trusteeship” I think would likewise be illuminating. Incidentally, Cohen has a nice treatment of the libertarian concept of self-ownership (and the idea, as it were, of ‘world-ownership) in his brilliant book, Self-Ownership, Freedom and Equality (Cambridge University Press, 1995).

  7. Meredith Render says:

    Patrick: Thank you for your comment. I also share your intutition that something like a “mind” (or perhaps, as I mentioned earlier, sapience, as we might think that someone in a persistent vegetative state has the capacity to be an owner) may be a necessary criterion of the status desgination of “owner”. This is why I find “owning” after death so interesting, because a deceased person no longer has a mind and/or is no longer possessed of essential qualities of sapience.

    As to your second point, I am also a fan of Cohen’s work. I found his treatment of the concept of “self-ownership” to be quite helpful in thinking about human body ownership.

  8. Anon says:

    I love this puzzle and your approach to it. I don’t have a sense of what the answers are, but I do think it makes sense to figure it what (if anything) is special about ownership by considering the closest “losers” among possible owners. I think it has obvious implications for the durational scope of rights, but It might well also affect how we think about bundles, etc.

    Keep up the good work!