Sunday, May 1, 2016

Meum et tuum (bis)



(I)  Mine and Thine

This morning I am, for my better edification, engaged in reading Roscoe Pound’s classic Introduction to the Philosophy of Law (1922; revised and augmented edition 1959).   It is rather dry; only a concurrent reading of Cozzens’ law-soaked novel  By Love Possessed (most gripping, precisely, in its legal passages) led me to once again  pick up this monograph.

In the penultimate chapter, Pound arrives at the question of Thine and Mine.  To get some clarity on this vexed subject, he begins with a clean desktop by doing what we all should do whenever tackling a difficult problem:  arranging the data into six convenient groups:

Theories by which men have sought to give a rational account of private property as a social and legal institution  may be arranged conveniently into six principal groups, each including many forms.  These groups may be called:

(1) Natural-law theories;
(2) Metaphysical theories;
(3) Historical theories;
(4) Positive theories;
(5) Psychological theories;  and
(6) Sociological theories.
-- (p. 114)

There!  And now (in the word’s of Portnoy’s psychoanalyst, at the end of the book) -- Now we can begin!

Our interest here lies chiefly in the metaphysical theories, which began with Kant.  And Kant began with this:

He begins with the inviolability of the individual human personality. A thing is rightfully mine, he says, when I am so connected with it  that anyone who uses it without my consent  does me an injury.
-- (p. 117)

Ordinarily, philosophical argument is supposed to start with what is self-evident, or at least colorable, and to proceed by ever-cleverer reasoning  to some conclusion  the path to which was not initially plain.  Yet here we find ourselves in quicksand, before the journey is quite begun.

For  consider:
Little Timmy is playing happily with his new toy dinosaur, bought for him by his grandmother the day before.  Along comes Tommy and seizes the object by main force.  Timmy is dismayed, his playtime ruined; tears  well in his eyes.
But now consider Tommy, happily at play with his newfound fun dinosaur.  Let Timmy, or Bobby, or anyone else, come along and likewise appropriate the coveted item, and -- now Tommy is dismayed, his playtime in tatters; salt tears  sting his eyes.

The only way we might distinguish between the sense of grievance of the two boys, is in light of some antecedent theory of ownership  and notions of justice attached thereto, held by one or both boys:  quod erat demonstrandum, sed demonstratum non est.

That, alas, is an actual incident, from America’s tragic past.  Here, ladies and gentlemen of the jury, are the facts (David v. The Cruel World, 1955):

~ The Case of the Purloined Dinosaur ~

I was not quite five years old, temporarily living with my maternal grandmother  in Garden City, Long Island, while my parents, having moved from Tennessee, were off house-hunting in New Jersey.  In the course of a visit to the Museum of Natural History (fondly recalled here) she had bought me a lovely little bronze statuette of a brontosaurus;  I had few or no toys dating from the time of our rather exiguous existence in Oak Ridge, and this brontosaurus  was by far my most precious possession.

I was outdoors alone, playing with this wondrous toy, when along came a neighborhood boy and, liking what he saw, calmly possessed himself of the animal and began walking home.  Stunned at this calamity, I trailed along after him, alternately remonstrating, threatening replevin or trover, and expostulating, citing seriatim the old Roman (“natural law”) theories of possession, along with the metaphysical, the historical, the positive, the psychological, and the sociological -- finally adducing canon law and the opinions of the early Church fathers concerning matters of tortious conversion -- or would have, had I heard of any of that.   He merely shrugged -- then trumped me, with a legal axiom of his own -- and one which stood irrefutable, as it rhymed:

~  Finders keepers,  losers weepers ~

That adage took me aback.  I was amazed that the world here below should be so ill-ordered, but such apparently was the case.

Later that day, I appealed to the local areopagus, in the form of my grandmother -- herself the daughter of a clergyman, and pretty clear on matters of right and wrong.   She phoned the boy’s mother, who then tried to recover the object from her child’s well-stocked toybox;  but by then it had been lost and forgotten.


~

Had we each, I and that larcenous lad (who now, if he yet live, is even older than I am, if such a thing may be conceived) -- had we, I say, myself and that Barabbas rapscallion (prior to his eventual death in the monastery  whither he had  no doubt  latterly repaired, in penance of his depredations, dying finally in an odor of sanctity, his palms emblazoned with stigmata  in the shape of brontosaurs):  had we, say I, either of us, possessed a copy of Pound’s treatise (necessarily the original edition, since the second was not yet out) -- had the two of us sat down, like men of reason, and conned its pages  for guidance in our perplexity -- I might not (contrary to intuition) have been the gainer thereby.  
For in that work, does not the author refer to “the maxim possession vaut titre in continental law” (p. 128);  and does he not likewise allege, that

when one appropriates a thing, fundamentally he manifests  the majesty of his will  by demonstrating that external objects that have no wills  are not self-sufficient
(-- p. 120)

?
Our light-fingered adventurer might well take that as praise.


~

Already  I sense, you are reaching for your well-worn,  dog-earned,  espresso- or brandy-stained copy of The Common Law, by Mr. Oliver Wendell Holmes, Jr., Esq. (1881; which surely graces your night-table) for help in ascertaining what might lie aback of all of this.  To that work, therefore, we now repair.



Holmes’ tract is  if anything  even drier, even more nose-to-the-grounds-of-precedents (some quite ancient) than Pound’s.  Yet he claims to have his eyes as well on higher (or deeper) things:

The interest attaching to the theory of possession  does not stop with its practical importance in the body of English law.  The theory has fallen into the hands of the philosophers.
-- chapter “Possession”


And not merely  for their own abstract amusement;  for Pound goes on to declare the influence bidirectional:

Nowhere is the reciprocal action  of legal rules  and philosophical theories  more strikingly manifest  than in our law of contractual liability.
-- Pound, op. cit., p. 

Anyhow, readers hoping for sure philosophical guidance from Holmes’ book  might be disappointed.  As, consider the following hypothetical case:



A pocket-book was dropped on the floor of a shop by a customer, and picked up by another customer before the shopkeeper knew of it. 
-- Holmes, op. cit., p. 222

(And, be it understood, made off with it;  that is not stated in the text, but apparently was the expected behavior of a shopper.)

Now, for fifty points -- answer this simple quiz from WDJ.  The appropriate holding would be:

(1) The purloiner of the pocket-book is a common thief, and should be prosecuted as such, regardless of whether he repents and returns the stolen item.
(2)  In the event that, unprompted, the purloiner  of his own accord  return the lost property to its owner, no charges should be larged.
(3)  Screw the owner -- the perp gets to keep it, free and clear.
(4)  Actually the shopkeeper gets to appropriate the mislaid item.

(Pause for reflection;  then read on.)

If you answered (1) or (2), you are (according to Bridges v. Hawkesworth), a patsy, a loser.  “Finders keepers, losers weepers” rules -- the correct answer is (3):

Common-law judges and civilians would agree that the finder got possession first, and so could keep it  as against the shopkeeper.
-- id.

 

~

After that little Gedankenexperiment, we gloomily wonder why a table-sweeping fifth option was not added:

(5) Property is theft.  (La propriété, c'est le vol. -- Proudhon.)

And indeed, Roscoe Pound does cite that 18th-century ideological Brandstifter  J-J Rousseau, to much that effect:

Rousseau held that the man who first laid out of plot of ground and said, “This is mine”, should have been lynched.
-- Pound, op cit., p. 119


To that we might merely observe that … he probably was.  As was any man who, outside the receptive and self-developing Greco-Roman-Christian current of history, presumed to invent or discover anything (or at best, he was ignored, and his find  died with him). “No such constitutional framework of contractual security as the Roman  was evolved by any other people in the ancient world.” --  Adda Bozeman, Politics and Culture in International History (1960), p. 201. (See also Lord Raglan, How Came Civilization.)


(II)  Adverse Possession

Apart from simply seizing someone else’s property and walking off with it, or invading it by main force, there is a subtler way of annexing the same, which can even cadge recognition by the law.   This trick is called:  Adverse Possession.
Thus, Princeton University owns a bit of woodland, containing a birdwatchers tower, to which access is unrestricted.  Yet one day a year, they bar the access-road and say No Trespassing:  this, lest their title lapse.  


So put, the phenomenon may appear a mere curiosity; but the phenomenon is spreading, as here and there  governments lose their backbone.  This, most strikingly in France, where certain immigrants -- illegal to begin with -- have occupied buildings and even private residence, the authorities seeming powerless to defend the rights of the owners.  Meanwhile the public becomes glumly accustomed  to ever-wider infringements with impunity.

Ogden Nash captured an earlier version  in a celebrated poem of 1938:

How courteous is the Japanese;
He always says, “Excuse it, please.”
He climbs into his neighbor’s garden,
And smiles, and says, “I beg your pardon”;
He bows and grins a friendly grin,
And calls his hungry family in;
He grins, and bows a friendly bow;
“So sorry, this my garden now.”

Such is the sociological landscape of bisounours Europe today;  the frog slowly cooking in the crock-pot;  le grand Remplacement.


(III)  Debts & Promises

The early Romans were serious about debt:

Defaulters (addicti) could be sold into slavery  or even put to death by their creditors.
-- H.H. Scullard, A History of the Roman World, 753 to 146 BC (1935; 4th edn. 1980), p. 83

Durch das frührömische Kreditrecht in der Form des nexum  hatte der Kreditgeber faktisch ein Zugriffsrecht auf die person des Schuldners.
-- Karl Christ, Die Römer (2nd edn. 1983), p. 20

That practice found an echo as far away as England, as late as the nineteenth century, in the institution of debtor’s prisons, so memorably depicted by Dickens (who, however, was not an impartial observer in this case).   That institution strikes any contemporary who first hears of it, as wacky (quite apart from the humanitarian aspects), since how can the fellow pay back his debt  if removed from the economy?   A historical view, however, reveals an institution that made sense in a certain social context -- near-universal throughout much of antiquity, and still in effect in many later cultures -- in which the familia, gens, phratry, tribe or what have you, was responsible for each of its members:  imprisoning the prisoner was more like sticking him in a pawnshop until redeemed.  It wasn’t punishment per se;  he simply served as the logical collateral.

[Gist of omitted section:  As is by now notorious, such severity towards debtors has not merely been largely relaxed, but the background culture of… honoring one’s debts  has in many areas collapsed disasterously -- and this, not only at the foot of the economic ladder, but at its tippy-top, the culture of Bain Capital:  a culture of reckless gambling, whose losses are made up by the taxpayer.]

If you live in a nation which disdains to enforce contracts, you can either just shrug and take it as a gamble, or do business elsewhere -- or no business at all, go off and cultivate newts or something.

Transposed to our boyhood memory  in the form of a parabel, the scenario would be:

“Could I borrow that brontosaur for a second?”
“Uhh… Yeh sure.”
The boy takes it and walks off.
“Hey!  Give that back!  I didn’t give it to you -- you said ‘borrowed’.”
An indifferent shrug.  “So, I’m an insolvent debtor.”



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