Book the Second, Chapter 26. Of Title to Things Personal by Occupancy.
This chapter is 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. They will be “blended in one and the same view, as it is for the most part impossible to contemplate the one, without contemplating the other also.” II, 400 Maybe he is thinking reciprocally, as in, one person’s gain is another person’s loss. That would be interesting, because it’s 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—or at least separation–is not just a possibility, it is an eventual certainty.
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. Enter the law of property.
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 “freeholds,” 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 ‘naturally’ limited. The focus on time makes sense in a system that treats “occupancy,” or, possession as “the original and only primitive method of acquiring any property.” II, 400. In fact you could see all the ways of transferring property from one individual to another– gifts, sales, trades, etc., and especially wills and inheritance by descent– as inventions made to defeat time. 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. So in a way the first question for property law is how to create rightful ownership that continues after you are gone – whether gone for a morning ramble or gone after you are dead.
In my day to day doings, I rarely think about the source of property rights. I just “see” 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’s personal property as generating more property. 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’t even notice myself seeing them.
What it takes to occupy, or, possess, something so that it becomes your private property is contextual. One culture’s obvious signs of exclusive ownership become invisible, or at least ambiguous, from a different cultural perspective. 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 Commentaries he observes that England’s “American plantations” were obtained by “driving out the natives (with what natural justice I shall not at present enquire).” I, 105.
Contested occupancy isn’t 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’s more, this woman’s selfish chair grabbing looked like just the sort of bad-faith, bad-karma behavior that could jinx the game’s outcome. “If Brazil loses, it’s her fault,” I hissed to my husband. I was like the American settlers — 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’s property claim turned righteous. If I had had an invading army, who knows what I would have done. And, by the way, Brazil did lose. I’m just saying.
How long and how hard do you have to hold onto something for it to become yours? 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? Is consumption a kind of loss or is that entirely different? 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 “last summer” at home? But I digress.
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. My best personal example of this is a lime sherbert donkey. (“Sherbert,” which my lap top’s spell check does not recognize, is, or was, the Midwestern version of what I would now call “sorbet.” 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 – lime sherbert molded into the shape of the Party’s symbol, a donkey. “Oh,” she said, “I wanted to bring it home to you so much. I thought, ‘Jessie would love this’, but I couldn’t because it would have melted in my purse.” To this day, over fifty years later, I can recall that dessert–its color, its adorable animal shape, its cold deliciousness in my mouth, the exact combination of tart lime and sugary sweetness–more vividly than any dessert I have actually eaten.
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’s 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.
In such a world, loss seemed like the farthest thing from anyone’s mind, but of course Greece is full of stories of things that have been lost. Most recently and systemically, many Greeks lost jobs and pensions after the 2008 economic crisis. Unemployment is still high — 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’s no question that the increased need for tourist dollars is what made it affordable for us to be there this summer eating those grapes.
Sometimes things that are lost can be regained. Earlier this year after 27 years of fighting over the name “Macedonia” the Greeks got it back. The Balkan Republic of Macedonia finally agreed to become the “Republic of Northern Macedonia,” and “Macedonia” 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. Earlier this year, 140,000 Greeks staged a “Macedonia is Greece” rally at the parliament building in Athens, chanting that the name “is in our soul.”
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’s marble frieze has 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 museum archeologist explains, the contrast between the beautiful old stone and the plaster is intentional: “Everyone understands at once what is missing.” Indeed, this may be the first museum built to exhibit loss.
Greece has been protesting the Parthenon sculptures’ removal and demanding their return for nearly 200 years. The missing marbles are on display in London, in the British Museum, where a pamphlet does its best to transform the Greeks’ loss into the world’s gain. Exhibiting the sculptures in two different contexts is said to be an opportunity for “different and complementary stories to be told” about the Parthenon’s “significance for world culture.” The marbles are the “universal legacy” of a “shared heritage that “transcend[s] cultural boundaries,” a claim that might be more convincing were Britain not currently engaged in its bitter nationalist “Brexit” from the European Union.
The Greeks don’t really dispute that in some way the Parthenon sculptures belong to the world: “They don’t belong to the British, they don’t belong to us. They belong to history,” declares the director of the Acropolis Museum. But they still want them back. And no wonder. 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’s claim to the sculptures, it’s not because the guy who took them and sold them to the museum may have been trying to preserve them. And it is certainly not because the museum’s collection of far fetched antiquities “allows the world’s public to re-examine cultural identities and explore the connections between them.” I love the British Museum, but please! If anything feels right about seeing the marbles there, it’s just because the museum has managed to hang onto them so openly for so long.
Somehow seeing something in someone’s 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’s unlikely that person will ever see the taker’s claim of ownership as legitimate. If anything, seeing another’s open possession just feeds the rage and grief over the object’s loss. But ordinarily the rest of us can’t see that loss; we don’t see absence. That’s what makes the Acropolis Museum display so brilliant. By making the missing marbles’ absence visible, it makes a kind of property of loss.