by Bruce Hood
1
Do We Really Own Anything?
FINDERS KEEPERS
Shannon Whisnant wanted to be famous. He dreamed of being a somebody. He used to fantasize about having his own TV show and becoming a celebrity and, following a bizarre ownership dispute, he did.
In 2007, Shannon bought a meat smoker grill at an auction in Maiden, Catawba County in North Carolina. A storage unit company was legally selling off the contents of lock-ups where owners had fallen behind in their rental payments. Shannon, a local trader, paid a couple of dollars for the grill but soon discovered that he had bought more than he had bargained for. After opening the grill, he made a grisly discovery – a human left foot. Whose foot was it? Was it the remains of a grave robbery or some unreported murder? Following a 911 phone call, the Catawba County police confiscated the foot to begin their investigations. Soon everyone was talking about the foot. Shannon thought there was money to be made in people’s morbid curiosity, so he called the police to demand his foot back. Meanwhile, the police had discovered that the foot had not come from someone deceased, but rather from a man named John Wood, who was well and truly alive and living in South Carolina.
Three years earlier, John had been in an aeroplane crash that had tragically killed his father and left him with severe injuries, requiring the amputation of his foot. John wanted to keep his foot as a memorial to his father, so he requested it from the hospital and, remarkably, they complied. Unusual behaviour, but then at the time John had a severe drink and drugs problem. Eventually he lost his home and so he put his belongings, including his foot and the grill, in a lock-up before moving to South Carolina. When his mother refused to keep up with the storage rental payments, the contents were auctioned off. That’s how John’s foot came into the possession of Shannon Whisnant.
When John Wood returned to reclaim his limb, Shannon protested that he was the rightful owner. The two men met in a car park in Maiden where Shannon tried to persuade John to agree to joint custody of the foot. Eventually, the dispute was settled in court, where it was ruled that the foot should be returned to John but that Shannon was entitled to $5,000 compensation as he had a legitimate claim of ownership over the foot.
The story, featured in a 2015 documentary film, Finders Keepers, is intriguing because it challenges our natural assumptions about ownership.1 What could be more obvious than the uncontested ownership of your own body? We are appalled that someone would claim ownership over another’s body part. The unwelcome touching of another person’s body, let alone claiming ownership over it, is not acceptable to most people. This is something that even pre-schoolers are sensitive to; four-year-olds think that you need permission to touch someone else’s hand or foot.2 With age, that appreciation of personal ownership gives a person the right to treat his or her body as they wish: as independent adults, tattooing, piercing, modifying or allowing others to touch their body, are simply ways for people to exercise their ownership.
Contrary to intuition and common wisdom, however, you do not necessarily own your body. If you did, then you would be perfectly entitled to do with it as you wish. But this depends on where you live. Take tattooing, for example. It is illegal and restricted in many countries. When I was a Harvard professor in the 1990s, tattooing was still illegal in Massachusetts and considered a ‘crime against the person’. If you wanted to get inked you had to travel across to Rhode Island, until the law was finally changed in 2000. When it comes to buying or selling your body, or even just parts of it, in many countries, the law prevents you. For example, it is currently illegal to sell one of your kidneys in the US and the UK, but it’s perfectly legal to do so in Australia and Singapore where live organ donors can profit from the sale of their organs.3
The most extreme personal act against our body is suicide. Though largely decriminalized, suicide is still illegal in many countries. Assisted suicide and euthanasia, even when a patient is terminally ill and miserable, are against the law in the UK. In ancient Rome, suicide was considered an acceptable, even noble act among its citizens, but it was illegal for slaves and soldiers because these individuals were considered property of the slaveowners and the state and so suicide was considered theft. As theft was a capital crime, attempted suicide by these individuals was technically, but ironically, punishable by death.
Destruction of property is still part of the modern definition of ownership in many jurisdictions. It operates in the Anglo-American legal systems and originates from Roman law – jus abutendi, the right to destroy property or treat it as you wish. In his book Playing Darts with a Rembrandt,4 Illinois law professor Joseph Sax points out that if an art collector wants to play darts with his Rembrandt portrait, no one should stop him because of jus abutendi rights. The logic behind the law was that if destruction is recognized as the most extreme legitimate act, then the owner who is entitled to destroy his property is necessarily entitled to all the other rights over his property as well.
Most of us would not knowingly destroy a masterpiece but there are examples, such as the Rockefeller family who commissioned the renowned Mexican artist Diego Rivera to paint a mural at their Manhattan office complex in 1932, only to have the artwork chiselled off the walls because they did not like the political message it portrayed. Then there was the Taliban, who blew up two giant statues of the Buddha in Afghanistan in 2001 as the world looked on in horror at this cultural vandalism. The magnificent statues, dating back to the sixth century, were carved out of the solid rock of a cliff and recognized as a world heritage site. The Taliban justified the destruction as removing idolatry but, as the occupying force in the country, they were also making a point about ownership, asserting their right to do as they wish with property they had seized.
Even if you are dead, issues of body ownership are still contested. When the British broadcaster Alistair Cooke, famous for his Letter from America radio show, died, his daughter chose to have him cremated by a cut-price funeral home she selected from the yellow pages. She received his ashes in a cardboard box, assuming that these were all the last mortal remains of her father. What she did not know was that his body had already been plundered by an unscrupulous biomedical tissue company who paid the funeral home to retrieve the celebrated broadcaster’s leg bones. These were worth $7,000 on the human tissue market: a market where no one owns the remains of the deceased, but companies can earn up to $100,000 for ‘processing’ a body to recover tissue. This is all perfectly legal and necessary for biomedical procedures. Harvesting body parts is worth over $1 billion annually in the US, even though not one cent goes back to the families of the deceased.5
We may be appalled by these cases of wanton destruction and apparent theft, but our intuitions are often out of kilter with the law. One recent study took ten actual ‘finders keepers’ cases from the legal archives and then submitted them as thought experiments to see how members of the public would adjudicate.6 Each of these was an example of somebody finding some item of value on another’s property but, rather than defaulting to finders keepers, people used a wide variety of criteria to make their decisions, which often conflicted with the actual ruling of the courts. Some people thought that if a landowner does not know about an object then the finder is entitled to it, whereas others thought that landowners owned every object on their land even if they did not know it was there. Then there were distinctions between finding objects in public versus private spaces, underneath or on top of the ground, and whether an item was originally lost or mislaid. Each of these distinctions generated different attitudes to ownership. Clearly, when it comes to ownership, people have differing opinions.
WHAT IS PROPERTY?
It might seem straightforward but defining property can be tricky. Explicit rules regarding property can be traced back about 4,000 years, to the first known written code of law that contained – among other things – rules regarding lost and stolen property. Plato and Aristotle began a philosophical debate about how to best regulate ownership and possession of things.
Their discussions would continue into Roman law, medieval laws and the considerations of Enlightenment thinkers such as Thomas Hobbes, who argued that without state interventions regulating property ownership, bitter disputes would be common, and life in peace and harmony impossible.7
Nearly every subsequent modern law textbook begins with the question ‘What is property?’ but it is never answered. In fact, the question is unanswerable because the meaning of property constantly changes. Consider the definition of property based on the work of English philosopher John Locke, who in 1698 argued that, as we own ourselves, we own property that we create, shape, or produce through our labour: ‘Whatsoever then he removes out of the State of Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property.’8 In other words, we can claim possession of property through the work we put into it either in the form of our labours or through the value we place upon items through investing our money in them by purchase. Locke argued that purchasing is simply another form of creating an object because wealth stems from the fruits of our labour. But this straightforward transaction requires mutual agreement about what is property and capable of being owned in the first place. Nomadic peoples such as the Scandinavian Sami considered you could only own what you could carry, whereas the North American indigenous peoples believed that the only thing you could own was your soul, as it was the only thing that could be taken into the next world.
These differing cultural understandings of property have produced some odd exchanges. In 1626, Dutch explorer Peter Minuit purchased the island of Manhattan from the Delaware tribe of the Lenape people for around $24 worth of goods. There is no bill of sale signed by the various parties, other than a brief mention in a letter to the Dutch West India company that simply states: ‘They have purchased the Island of Manhattes from the savages for the value of 60 guilders.’ At the time, Manhattan (from the Lenape manna-hata, ‘hilly island’) was rich farming land surrounded by water and perfect for establishing a colony. It may have seemed like a bargain but the Lenape had no real concept of the transaction so it could never be a fair deal. It was common practice to exchange goods for safe passage or to occupy lands, but the notion of land ownership in perpetuity was alien to the indigenous peoples. Both parties probably left the meeting with different thoughts about what had taken place. Heather Crowshoe-Hirsch, a modern Skinnipiikani-speaking descendant of one of the First Nation tribes, explains: ‘The use of the term “property” is inadequate as that which is transferred does not, technically speaking, belong to anyone. The possession of these items is “Creator-given” and as such, cannot be owned or deemed property as such.’9 The indigenous peoples of North America did not recognize the concept of ownership of land, which is why they were probably bemused by the offers to hand over possession owned by the gods. No one can sell what they do not own in the first place. Indeed, it is questionable whether a legal sale ever took place.
Ownership also varies from one jurisdiction to the next; for example, it is illegal to own a hedgehog in New York City, but not across the Hudson River in the neighbouring state of New Jersey.10 In some US states you cannot resell concert tickets above the face value even though you own the ticket. The resale of medical prescriptions is prohibited, even for innocent items such as spectacles or contact lenses, because it is considered in the same category as drug dealing. You never really own software for your computer but rather just license it, which means you can’t legally sell it on. The situation gets even more complex when you cross the border of another country; there is a whole legal area known as ‘Conflict of Laws’ which attempts to resolve differing legal systems. Most countries consider their neighbours’ systems to be illogical. If they did not, then we would all have the same international laws of ownership. Currently they do not exist. The right to property is recognized in Article 17 of the Universal Declaration of Human Rights, but there are no universal laws on what is property or what you can do with it.
What can be owned has also changed over time. Take the now-abhorrent notion of owning another person. Until fairly recently in history, in many countries, people could be legally owned as slaves. One of the objectives of war was not only to take control of lands and resources but also to enslave people who were valuable for the labour they could provide. Some of the greatest wonders of the ancient world were built by foreign slaves, such as the Great Pyramid of Giza, which required 100,000 slaves toiling for thirty years to complete.
Slavery raises not just moral concerns but logical inconsistencies in ownership as well. For example, Locke’s concept of property established through labour was enshrined in the US constitution as an incentive for homesteaders and pioneers to transform the land through their efforts. By working the land to forge a new nation, they were granted the legal rights of ownership through the toil of their efforts. Indigenous peoples were moved out of their territories into reservations so that their ancestral land could be handed over to homesteaders to develop. This was often conducted in chaotic land grabs or land runs. It must have been an incredible sight when, at noon on 16 September 1893, 100,000 homesteaders rushed forward with their horses and wagons to stake their claims (by driving stakes into the ground) for the best spots on 6 million acres of former Cherokee grazing land in the state of Oklahoma. This was all perfectly legal as the Cherokee had been compensated with a paltry sum for their ancestral lands.
When it came to slaves, however, the new nation was faced with a major contradiction between the constitution and Locke’s concept of property. If slaves worked the land, then they should become owners, according to Locke. Even though ‘all men were created equal’, according to the Declaration of Independence of 1776, slaves were considered property to be bought and sold. And as property, they should not be able to own independently of their masters.
To reconcile the conflict, slaves were deemed not to have free will. They were, in effect, considered lacking the capacity to think for themselves. In one famous test case in the nineteenth century, a black slave named Luke was put on trial in Florida for the malicious destruction of property when he shot donkeys that had strayed on to his master’s property.11 Initially, the court sentenced Luke to prison, but an appeal ruled him innocent because he had been ordered to shoot the animals by his master. To punish him would have amounted to acknowledging that Luke had free will. Ironically, in order to uphold the slave code, the court ruled that it was wrong to imprison Luke. Slaves were considered chattels and, as such, had ‘no volition to disobey a master’ any more than an animal did.
In addition to classifying slaves as animals with no free will, the slaveowners argued that they did not actually own the slaves themselves, but rather their productivity. As the Southern law professor Francis Lieber wrote in 1857, ‘Properly speaking … the slave himself is not property but his labour is. Property involves the idea of a free disposal over the thing owned … we possess no such right over the slave and have never claimed it.’12 In other words, any action of the slave was owned by his master but, in turn, the master was accountable for the actions of his slave. The laws relating to slavery were not directed at the slaves (because they had no free will anyway) but rather the owners who were responsible for their property. An elaborate example of this principle is provided when in 1827, the State of Louisiana judged that a small sum of money found by a slave, but unbeknown by his master, which was then stolen from the slave, counted as theft from the master.
Today slavery is recognized as illegal in every country, but that has not stopped the lucrative trade in human ownership. Globalization has generated considerable wealth in the West by exploiting cheap labour in other countries, but this has created the conditions where the poorest are forced to survive on less. According to various bodies, including the UN International Labour Organization13 and the Global Slavery Index,14 over 40 million people are currently enslaved worldwide. The quality of life that we enjoy in the West is achieved through t
he inadvertent misery we cause by demanding cheaper and cheaper products. For example, much of the tea and chocolate we consume is produced by workers in conditions that amount to slavery. We regularly enjoy the benefits of cheap labour when we buy products from countries such as China and India, two of the five worst-offending nations that account for 58 per cent of all modern slavery. Many workers become the migrants who pay traffickers to get them to the West, even though they then risk getting trapped in a cycle of abuse and indentured labour.
Unlike the slave trade of the previous centuries, modern-day slaves are ‘free’ to leave their workplace, but the threat of punishment and grinding poverty leaves labourers with no option but to keep working in sweatshops making the everyday things we consume. Consider the Apple iPhone, ‘Designed in California. Assembled in China’ and one of the most popular devices in the world. However, what many iPhone owners are probably unaware of is that these sleek, must-have trophies of designer consumerism are assembled in sprawling Chinese factories that have long been criticized for exploitation, stress, bullying and high rates of worker suicides.15 In 2012, 150 workers at an iPhone factory gathered on a rooftop and threatened to jump, until they were talked down with the promise of improved working conditions. In other sweatshops across the world, it is estimated around a quarter of these modern slaves are children, generating $150 billion each year in illicit profits for traffickers. Most of them are female.16 All of them are considered property to be traded.