Tuesday, August 11, 2009

A Long Footnote to "Property"

One must always remember that to the mind of the Middle Ages a man’s lawful property was an extension of his personality—an exterior body, as it were, and, like that body, a sacred trust to be used and not abused, either by himself or by others.

Thus wrote Dorothy Sayers in her commentary to Dante’s Inferno, Canto XXIV, the first of two that deal with the fate of thieves in hell. To this she added, “This accounts for the severe view which Dante takes of offenses against property.” Sayers had introduced this point in her commentary on Canto XI already, saying at that point:

Property is regarded, in accordance with Roman law, as an extension of the personality. Consequently, to damage or destroy one’s or one’s neighbor’s good is a sin of the same type as the damage and destruction of one’s own or one’s neighbour’s body.

Indeed, this view of property really arises from Natural Law. Not surprisingly, therefore, we find it present in most legal codes, not least in African customary law and in Islamic law. The interesting aspect of this interpretation of property is that, much as in John Locke’s thought, which as simply an updating, in is own time, of natural law thinking, property is linked to the body because it is linked to life. It is an “extension of the person” because the person depends on property in order to make his/her livelihood. Land, cattle and tooling were, together, the foundation of agricultural survival; tools and materials were the extensions of the craftsman without which he could not practice his trade. I would also note that we also experience this extension psychologically—and law recognizes this feeling. The following excerpt from Harmful Thoughts: Essays on Law, Self, and Morality, by Meir Dan-Cohen (Princeton University Press, 2002, p. 217) will illustrate that:

Tort liability often extends beyond the unintended consequences of one’s bodily engagements. The famous tort cases involve escaping water and straying animals, but for our purposes a more mundane example will do. An unexpected wind blows a vase out of my living room, and the vase lands on a passerby’s head. Even if I had not myself placed the vase or been otherwise involved, I would be mortified more intensely than, say, my neighbor, as we both helplessly watch the vase traveling toward the passerby, and I would be expected and inclined to rush to the rescue with greater urgency than any Samaritan who happened on the scene.

Notice first how closely the phenomenology here resembles the win-spilling case [described earlier]: just as bodily involvement was the source of responsibility for the win-spilling, ownership of the vase links me inexorably to the passerby’s injury.

We have here, therefore, a logical basis for property-as-extension-of-body (meaning its economic support functions), a psychological identification because we own something, and a legal recognition of that fact.

Now to this I would add some observations. First, property as an extension of the body for its maintenance made a lot of sense in pre-modern times when property, for the vast majority, was the means of making a living—be it by agriculture or trades. In those days property had a functionally closer association with life than it has today. If we were to bring natural law up to date, to modernize it properly, as Locke was doing for his time, we would include as an intimate core, of the concept of property, that which provides us our actual, continuous source of income—much like a shop-materials-tools or land-cattle-and-implements functioned in medieval and in earlier times. And that functional equivalent would be — our job! But we don’t have a right to jobs. Not like medieval man had to property. If you apply the life-liberty-property slogan to the ordinary modern human, you would see that, in our age, we are actually deprived of one element in this trinity—despite all the endless talk about the sanctity of property.

Worth thinking about.

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