Monday, July 23, 2018

Evening Note for Monday, July 23

Thought for the Evening: Quasi-Property

There is an interesting artifact of social life that is property-like but are really marks or signs for something that is not particularly property-like and, indeed, may not be anything definite at all. Consider, for instance, 'intellectual property', like patents and copyrights, which function very much like property but are symbolic counters for various a shell corporation, the 'corporation that exists, but only on paper'. Or, a very different case, Aboriginal dreaming stories in Australia, which are treated as a peculiar kind of intellectual property.

Quasi-property is a mechanism for making certain things in life easier, and I think it arises in particular in two ways.

(1) Residuation. Legal systems inevitably have quirks. They create signs and titles that work within that particular legal system. These signs and titles are often taken as representing something in particular in the real world, for the purposes of law. But nothing about the sign or title itself necessarily requires that it actually correspond to anything; if it is acknowledged by the legal system, it works within the legal system exactly the same way whether it corresponds to anything or not. So it can happen that the sign or title that once corresponded to something detaches from reality but continues, ghost-like, in the legal system. This is how shell corporations developed, those corporations that only exist on paper; given how the legal system determined what counted as a corporation, it was possible for there to be a corporation that was properly and legally registered but had residuated down to nothing but the bare bundle of corporation rights that came with being legally registered.

Manorial titles provide another example. (Something that always messes Americans up is that manorial titles are not the same as titles of nobility. The latter are part of the peerage; the former are part of feudal law. They are not the same legal system. Peerage titles are in fact not quasi-property, but something entirely different.) A manor under feudal law basically has three elements: the title itself (the lordship of the manor), the manorial (the actual estate), and the seignory (the bundle of rights associated with the title and the manorial). But this is a bundle, and sometimes there might be reasons why the bundle breaks. This gives rise to incorporeal hereditaments: the title gets inherited or bought and sold like property, but there is no manorial or seignory that goes with it any more due to some legal accident or confusion or shenanigans somewhere along the line.

There are lots of ways in which residual quasi-property could arise. Here is a fictional scenario that gives one way it could happen. Suppose we were invaded and had to flee, but we had reason to think that we might eventually be able to push the invaders out and return. In such a case we might then think it important to keep track of our deeds and titles to property that we owned, even though we were not in actual possession of it. To do this, we would have to recognize them as the sort of thing that could be inherited. And the property rights of buying and selling would still be in effect in our property-system-in-exile. But it could very well be that we never were able to return. Even if that were the case, though, we'd still have incentive to keep buying and selling these traditional deeds and titles that correspond to no actual possession of property -- it's part of our ordinary economic exchanges, part of our traditions and laws, and so forth. And thus we would have a phantom property system involving deeds and titles, a purely residual form of property without property you can actually possess. (This is similar to the origin of titular sees in the Catholic Church, although titular sees are not residual quasi-property but residual quasi-jurisdictions, in effect entire legal systems in their own right that have dwindled to a nub because they became detached from any actual territory and people to which they originally applied.)

(2) Virtual Approximation. Legal systems are very flexible, but every legal system runs into things that are beyond its ability to capture perfectly. Often it just ignores them, but sometimes it cannot, for political or social reasons, and then it has to do something to accommodate these things it cannot accommodate. So the natural thing to do in a legal system is to look at something analogous and use that as a model for dealing legally with this extralegal matter for which there is no straightforward legal place. When the model is property law, you get virtual quasi-property, an attempt to simulate in property-law terms something that is in some way different from property. Patents and copyrights, indeed all intellectual property, arose through the attempt of law to capture certain moral expectations by treating uses of a thing as if it were property. Patents are a good example of why you need some kinds of virtual quasi-property; once the British, to clear up some legal difficulties, started treating economic privileges granted by legal patent as if they were a kind of property, it became a natural solution for any other system that had similar legal difficulties, and given that the resulting patent system was integral to obvious economic successes of Britain and its colonies, it was inevitable that everyone wanted a property-like patent system of their own.

A very different kind of virtual quasi-property can be found in the case of Aboriginal dreaming stories. A 'dreaming' has nothing to do with dreams (it's an old mistranslation that historically happened to stick); it's a religious system of symbolisms (narrative, artistic, and practical) that is unique to a particular Aboriginal tribe. It's obviously not property. But dreamings customarily have a very exclusive character -- using symbols from a tribe's dreaming without permission is a serious form of disrespect. I mean, it's an extraordinarily serious issue. So Australia has a serious incentive to accommodate this exclusivity. But Aboriginal dreamings are very unique and distinctive; they are a homegrown development specific to Aboriginal religious and tribal life, and there is nothing outside that religious and tribal life that is very like a dreaming. But legal systems of British origin have very strong property laws, so if you wanted to find a way to convey how serious the infringement was, entirely in the terms of those legal traditions, one way you could convey it is by saying that the infringer was stealing the dreaming, which is the possession of the tribe. Taking that as an analogy, one can then adapt certain principles of property law to give recourse and remedy. This will not capture all the nuances and complications of a real dreaming, most of which will be ignored or added in by hand as needed; but dreaming-as-property is a possible representation in legal systems of certain features of something that is really sui generis.

You can imagine all sorts of variations. One can imagine a society in which people became almost obsessive about their 'honor', a set of expectations about their social rights; accomodating this might be done in lots of ways, but if you do it by analogy to property law, you start developing a legal concept of honor as virtual quasi-property. The legal concept would be a rough-but-useful model for legal purposes. Honor is not in fact is very much like property at all; but you can treat it as if it were a very weird kind of property. In reality, you wouldn't want to develop as virtual quasi-property anything too weird; the purpose of it is really to simplify things, not to make them more complicated (although sometimes the latter inevitably happens anyway). The weirdest forms of virtual quasi-property we usually deal with in the real world are probably all financial instruments; because profit is a massive incentive, banks and investors are always looking out for new things existing only on paper that can be bought or sold like property. Residuation in a sense happens just by ordinary accident, arising out of the technicalities of the legal system itself; you need some pressure for virtual approximation to happen because it's a creative re-thinking. But certain kinds of historical contingencies (like the sudden interaction of two very different legal systems, or a situation for which a legal system has literally no precedent) can force the need for a virtual quasi-property, however weird it would have previously been to think of it in property law terms.

Various Links of Interest

* John G. Brungardt, The Action and Power of the Universe

* New Testament Virtual Manuscript Room

* Beth Preston, Artifact, at the SEP

* Jennifer Fitz discusses the Cardinal McCarrick scandal

* Martha S. Jones on the history of the Fourteenth Amendment

* The Ethics of Powerlessness: An Interview with Béatrice Han-Pile

* Brian R. Glenney, Philosophical problems, cluster concepts, and the many lives of Molyneux's question

* Raymond Chandler and the Invention of the Hardboiled Detective Novel

Currently Reading

Jules Verne, The Begum's Millions
Pierre Hadot, The Inner Citadel
Edmund Husserl, Ideas
John C. Wright, The Vindication of Man

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