Thomas Pynchon has stated that, “If they can get you asking the wrong questions, they don’t have to worry about answers.”7 It has been our failure to ask relevant questions that has generated so much confusion in our thinking. This is evident from the question: do we own our children? If we answer “yes,” we are left in the uncomfortable position of acknowledging the right of a parent to do whatever he or she wants with their child, regardless of the degree of harm involved. Because ownership is manifested in decision-making control, the owner (i.e., the parent) is free to do anything with that property interest, so long as it doesn’t involve a trespass on another person’s property interests. Brutal beatings of the child, or even taking its life, would seem justified if, indeed, the parent is the owner. On the other hand, if you answer “no” to this question, how do you respond to the person who insists on taking “your” child away from you for their own purposes? What if a neighbor used candy to persuade your child to come live with him: if you do not own this child, what claim would you have to regain your custody?
What if we rephrased the question to read: “do you have a property interest in an exclusive decision-making relationship with your child?” In much the same way that a husband and wife, or an employer and an employee, have property interests in contractual associations with one another, a parent could be said to have a property interest in a continuing relationship with the child. The parent does not own the child—any more than an employer owns an employee—but has an inviolable interest in raising and caring for the child, at least until he or she has developed to the point of being able to exercise self-control.
Our culture retains so many after-effects of the vulgar practice of slavery that we tend to answer with a reflexive “no” to the question of whether or not we can own another human being. But let us consider the matter more analytically. Slavery has existed in so many cultures throughout the world and over such prolonged periods of time that we need more than moral outrage to react to the practice. Using a property-based analysis, the principal criticism of slavery rests on its denial of an individual’s claim to self-ownership.
It may be argued that a particular slave made no claim to selfownership and, therefore, no property violation had occurred as to him. Such a contention, however, overlooks the fact that few of us have ever expressed such a claim. This argument presumes a claim to rest on a formal declaration, whereas such should be inferred from the autonomous, self-directed nature of one’s actions. That force may be resorted to by others—including the state—to secure our participation in their undertakings, is an implicit recognition of a claim to immunity from trespass having to be overcome by threats of violence.
Once an ownership interest has attached to any item, including ourselves, a respect for property claims requires those of us who wish to make use of such property to secure, by contract, the right to do so. Thus, if I am a respecter of property claims, and I would like Smith to come to work for me, I would need to secure a claim to his services from his present owner, Smith. To try to force him into my service, without his consent, would be to take his property interest by an act of theft, rather than respecting the property interest of the claimant. Such are the implications of Maine’s important distinction between legal rights premised on “status” as opposed to “contract.”
Likewise, if I desire to exercise some control over your property, such as using your land for some limited purpose, I may purchase from you, by contract, a portion of your authority, as an owner, to exclude me. This is why governmental takings, whether through eminent domain, taxation, conscription, asset forfeiture, or other involuntary means, amount to acts of plunder: the owner’s claim is not contracted for by the state. It is also why those who characterize a contract of employment as “wage slavery” do a great disservice to the need for clarity in our use of words. Those who do not know the difference between a coercive system of involuntary servitude, and a voluntary system of contractual employment, deserve to find out.
Can we claim ownership over other living things, such as animals? The animal-rights advocates would answer “no,” declaring that nonhuman creatures are as entitled to their lives and self-control as are we. But why limit such protections to animals? What about vegetables, or viruses (are they living microorganisms, or chemical agents?)? If we extend coverage to all living things, upon what shall we feed in order to reduce entropy in our lives and survive? The need for living things to survive at the expense of other living things, effectively destroys the so-called “natural rights” and “animal rights” arguments. After all, if we acknowledge all living things to have “rights” to their lives, each of us would have to content ourselves with such limited food sources as milk, beans, unfertilized eggs, fruits, nuts, and seeds—and only then until someone else came along to remind us that these products of living things are also life forms entitled to protection.
Life, as we know it, is both carbon-based and contains DNA, meaning that even what we might regard as the lowest form of life is a distant cousin of each of us. As we came to understand that the entire universe is alive, including the subatomic particles that exhibit so much of what appears to be free will, we would even have to give up these food sources. If human beings, or any other species, actually tried living by such a premise, it would not be for long. They would face starvation, as such restrictions on food sources could not provide enough protein to support many people.
Restricting the sense of personhood to humans, alone, does find support in the behavior of other species, which may suggest a genetic basis for such a distinction. This is why the insistence, by other life forms, on respect for territorial boundaries tends to be confined to members of the same species, ignoring the intrusions of members of other species. For the lioness to respect the personhood of the aforesaid wildebeest would be as fatal to the lioness as it would be to the wildebeest making the same concession to the grasses. This might suggest to us a biological basis for our exclusion of nonhumans from the “rights” equation.8
Whether or not we continue to have an ownership interest in our bodily organs, once removed from our bodies, is answerable in the same way as any other item of property in which we are no longer in possession. If I have a claim to the ownership of my car, do I lose it to a thief simply because, at the time he took it, I was not in control of it? Or, if a repairman removes the CD player from my car to work on it, have I lost my ownership interest in the player? The answer to this question necessitates our revisiting the “boundary” element, as well as going to the very essence of what is meant by a claim of ownership.
“Ownership” is not the same as “possession.” The latter amounts to being in physical control of an item, while the former is based upon the assertion of one’s will over the item. It is the owner’s sense of personality—not his or her physical power—that attaches to the item as a claim of ownership. While a claim may include a right to possession—unless that right has been contracted away by the owner, as in a landlord-tenant relationship—it transcends a mere possessory interest. This is why, when we speak of purchasing property from another, we are not buying the “property,” but the owner’s claim to the property.
Every contract amounts to nothing more than an agreement, by two or more property owners, to transfer their respective claims of property ownership to one another. The property involved may be realty, a chattel, an intangible interest (e.g., a copyright), or one’s personal services. If you and I enter into an agreement by which I am to sell you my car for $5,000, I am promising to do more than provide you with possession of the automobile: I am agreeing to convey my ownership claim to the car, just as you are agreeing to transfer your ownership claim to the $5,000. Thus, if I have not transferred, or abandoned, my claim to the ownership of any item of property of mine—be it a removed organ, or my car, or a CD player—I have not lost my ownership interest in any of such items.
The continuing recognition by others of an owner’s claim even when he or she is no longer in possession, is a rather sophisticated practice. Other life forms do not seem to exhibit this trait. It is an attitude that is essential to any complex, longterm system of economic production and exchange. A huntingand-gathering society, for instance, might not have need for such a principle. If an owner’s being out of possession was an invitation for others to take control of his interests, significant investment in either the creation or employment of tools would be unlikely to occur.
This is not to disparage possessory interests in property. One who possesses the property of another, whether rightfully or wrongfully obtained, has a sufficient ownership interest that the courts will protect against anyone other than a person with a superior claim. There have even been cases in which thieves have been able to recover their stolen property from another thief,9 the rationale being that a man who has been forcibly deprived of a possessory interest might not always be able to prove his right to same, providing wrongdoers with a field day for expropriation. The legal doctrine that possession gives a presumption of ownership that another claimant must overcome— the basis of the popular saying that “possession is nine points of the law”—is intended to prevent the disorder that would arise from property interests being taken by force.
This is why, other than forced takings by the state, an act of theft does not deprive an owner of his or her legally recognized claim. Only a willful act by which the owner no longer chooses to be an owner can accomplish this. Apart from state takings, the common law courts have taken a fairly consistent position: one does not lose his or her ownership claim by silence or inaction. An owner must make a conscious choice to either sell the claim (for consideration), or make a gift of it (without consideration), or abandon it. Even the concept of “adverse possession” has been rationalized by the courts as either an “abandonment” of ownership by the record owner, or the product of a “lost grant,” either of which would explain the prior owner’s longstanding disinterest in the land.
We abandon our claims to property with far greater frequency than either selling or giving them away. We make a daily habit of abandoning our property claims through the practice of disposing of “garbage” (i.e., unwanted claims). We purchase a grocer’s ownership claim to a bottle of soda, drink the beverage, then throw the empty bottle—and our claim thereto—into a trash container, which my students learn to define as a “claim abandonment center.” We engage in this practice with such frequency that, once a week, trash collectors come through our neighborhoods to collect our abandoned property claims and transport them to dumpsites (i.e., larger claim abandonment centers). In the language of chaos, we can think of trash containers and dumpsites as “attractors” for the disposal of property claims.
While we are unable to transfer more than what we own to others, we may transfer lesser amounts of our total claims. In such a case, we reconfigure the boundaries of our property interests so as to conform to what we are transferring and retaining. Thus, a woman who owns a parcel of land in “fee simple absolute” (i.e., the highest estate, free of any limitations) may convey a lesser interest, such as a “life estate”, and retain a “reversion” in herself. The redefined claims would, if combined, recreate the original fee simple absolute interest. The land, itself, would reveal no transformation to an observer by virtue of such a conveyance, reminding us that it is not the physical property that is being transferred, but only the claim of ownership.
In each of these examples, the owner is expressing his or her will to no longer be a claimant—or a sole claimant—to an item of property. In anticipation of death, we then arrange for the disposition of our ownership claims through a document we call our “last will.” In it, we proclaim to exercise our “last will” over what we own by having our claims transferred, upon death, to various designated persons.